Civil Procedure

CIVIL PROCEDURE LAW

Civil law systems, also called continental or Romano-Germanic legal systems, are found on all continents and cover about 60% of the world. They are based on concepts, categories, and rules derived from Roman law, with some influence of canon law, sometimes largely supplemented or modified by local custom or culture. The civil law tradition, though secularized over the centuries and placing more focus on individual freedom, promotes cooperation between human beings.

In their technical sense, the words civil law describe the law that pertains to persons, things, and relationships that develop among them, excluding not only criminal law but also commercial law, labor law, etc.

Features

  • A comprehensive system of rules and principles usually arranged in codes and easily accessible to citizens and jurists.
  • A well-organized system that favors cooperation, order, and predictability, based on a logical and dynamic taxonomy developed from Roman law and reflected in the structure of the codes.
  • An adaptable system, with civil codes avoiding excessive detail and containing general clauses that permit adaptation to change.
  • A primarily legislative system, yet leaving room for the judiciary to adjust rules to social change and new needs, by way of interpretation and creative jurisprudence.

Differences between Civil law and Common law legal systems

Feature Common Law Civil Law
Written constitution Not always Always
Judicial decisions Binding Not binding on 3rd parties; however, administrative and constitutional court decisions on laws and regulations binding on all
Writings of legal scholars Little influence Significant influence in some civil law jurisdictions
Freedom of contract Extensive – only a few provisions implied by law into contractual relationship More limited – a number of provisions implied by law into contractual relationship
Court system applicable
to PPP projects
In most cases contractual relationship is subject to private law and courts that
deal with these issues
Most PPP arrangements (e.g. concessions) are seen as relating to a public service and subject to public administrative law administered by administrative courts

 

Salient features

  • Clear expression of rights and duties, so that remedies are self-evident.
  • Simplicity and accessibility to the citizen, at least in those jurisdictions where it is codified.
  • Advance disclosure of rules, silence in the code to be filled based on equity, general principles, and the spirit of the law.
  • Richly developed and to some extent transnational academic doctrine inspiring the legislature and the judiciary.

Civil Cases

 Civil cases involve conflicts between people or institutions such as businesses, typically over money.  A civil case usually begins when one person or business (the “plaintiff”) claims to have been harmed by the actions of another person or business (the “defendant”) and asks the court for relief by filing a “complaint” and starting a court case.  The plaintiff may ask the court to award “damages” (money to compensate the plaintiff for any harm suffered), or may ask for an “injunction” to prevent the defendant from doing something or to require the defendant to do something, or may seek a “declaratory judgment” in which the court determines the parties’ rights under a contract or statute.

Eventually, to resolve the case, the court (by way of a judge or jury) will determine the facts of the case (in other words, figure out what really happened) and will apply the appropriate law to those facts.  Based on this application of the law to the facts, the court or jury will decide what legal consequences ultimately flow from the parties’ actions.

The parties themselves also might resolve a case.  At any time during the course of a case, the parties can agree to resolve their disputes and reach a compromise to avoid the expense of trial or the risk of losing at trial. Settlement often involves the payment of money and can even be structured to result in an enforceable judgment.