Civil Law slide 6

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Civil Law slide 6

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  • Civil Law slide 6

    1. 1. Introduction to Civil Law School of Law An Scoil Dlí
    2. 2. Introduction to Civil LawDr Suzanne Kingston School of Law An Scoil Dlí
    3. 3. Legal Actors in Civil Law systems
    4. 4. Legal Actors in Civil Law systems• Lawyers
    5. 5. Legal Actors in Civil Law systems• Lawyers• Judges
    6. 6. Legal Actors in Civil Law systems• Lawyers• Judges• Legal academics
    7. 7. Lawyers
    8. 8. Lawyers• No barrister, solicitor distinction
    9. 9. Lawyers• No barrister, solicitor distinction• France: Avocat – Replaced distinction between avocat (presented facts, pleaded before court) and avoué (prepared case up to court) up to 1971 – Both: auxiliaires de justice – Distinction still existed before appellate courts until beginning of 2010 – Special lawyers before Cour de cassation, Conseil d’Etat: avocats aux Conseils – Education • Masters – 4/5 years – very different experience to IRL • Bar school – 2 years (including traineeships) • Exam and admitted to bar; acquisition of practice
    10. 10. Lawyers
    11. 11. Lawyers• Germany: Rechtsanwalt - unified profession – Law degree – 4-5 years – First state exam – Referendarzeit (traineeship) – 2 years – Second state exam
    12. 12. Lawyers• Germany: Rechtsanwalt - unified profession – Law degree – 4-5 years – First state exam – Referendarzeit (traineeship) – 2 years – Second state exam• System funded by German taxpayer
    13. 13. Lawyers• Germany: Rechtsanwalt - unified profession – Law degree – 4-5 years – First state exam – Referendarzeit (traineeship) – 2 years – Second state exam• System funded by German taxpayer• Go on to be – Judge – Private practice (Rechtsanwälte ) – Notary – Public administration – In-house counsel – Law professor
    14. 14. Concept of a “notary”
    15. 15. Concept of a “notary”• Draft legal instruments (wills, conveyances, contracts)
    16. 16. Concept of a “notary”• Draft legal instruments (wills, conveyances, contracts)• Authentication of instruments
    17. 17. Concept of a “notary”• Draft legal instruments (wills, conveyances, contracts)• Authentication of instruments• Retain original documents as public records
    18. 18. Concept of a “notary”• Draft legal instruments (wills, conveyances, contracts)• Authentication of instruments• Retain original documents as public records• Give legal advice
    19. 19. Concept of a “notary”• Draft legal instruments (wills, conveyances, contracts)• Authentication of instruments• Retain original documents as public records• Give legal advice• Quasi-monopolies in district often
    20. 20. Concept of a “notary”• Draft legal instruments (wills, conveyances, contracts)• Authentication of instruments• Retain original documents as public records• Give legal advice• Quasi-monopolies in district often• Different from common law concept of “notary public” – Can’t act in contentious issues – Business, international affairs eg authentication, administering oaths, taking affidavits for foreign jurisdictions
    21. 21. France: Report Darrois, March 2009
    22. 22. France: Report Darrois, March 2009• Reform of the profession of ‘avocat’
    23. 23. France: Report Darrois, March 2009• Reform of the profession of ‘avocat’• Allowing in-house counsel to be avocats, though without the right to plead before courts (at present: juristes d’entreprise)
    24. 24. France: Report Darrois, March 2009• Reform of the profession of ‘avocat’• Allowing in-house counsel to be avocats, though without the right to plead before courts (at present: juristes d’entreprise)• Making it easier for avocats to work together in firms
    25. 25. France: Report Darrois, March 2009• Reform of the profession of ‘avocat’• Allowing in-house counsel to be avocats, though without the right to plead before courts (at present: juristes d’entreprise)• Making it easier for avocats to work together in firms• Reduction of difference between notaries and avocats – though difference would be retained
    26. 26. France: Report Darrois, March 2009• Reform of the profession of ‘avocat’• Allowing in-house counsel to be avocats, though without the right to plead before courts (at present: juristes d’entreprise)• Making it easier for avocats to work together in firms• Reduction of difference between notaries and avocats – though difference would be retained• Draft law: March 2010
    27. 27. France: Report Darrois, March 2009• Reform of the profession of ‘avocat’• Allowing in-house counsel to be avocats, though without the right to plead before courts (at present: juristes d’entreprise)• Making it easier for avocats to work together in firms• Reduction of difference between notaries and avocats – though difference would be retained• Draft law: March 2010• Law published: 28 March 2011
    28. 28. Judges
    29. 29. Judges• How are judges appointed in Ireland? – England/Wales? – US?
    30. 30. Judges• How are judges appointed in Ireland? – England/Wales? – US?• France, Italy, Germany: career judges – Initial law degree – same for advocates, notaries, judges, state attorneys – State exam to be judge • France: Ecole nationale de la magistrature, Bordeaux • Ecole Nationale d’Administration: administrative judges • 3 years training • Examination at end – Now includes compulsory English language exam
    31. 31. Judges
    32. 32. Judges• France – Complete independence of judges – No removal or promotion against their will – Low profile – not well known – No dissenting judgments or separate opinions – No/little lateral entry to profession – Highly respected civil servants – Separate category: Magistrats du parquet - together form ministère public • Civil cases: similar to ECJ advocates general • Criminal cases: similar to DPP • Can switch to being judge
    33. 33. Judges
    34. 34. Judges• Why the difference? – Roman law influence – iudex not creative – Change from pre-revolution creative judging – judge as a legal expert applying legislation – Importance of legal certainty and system – No development of “equitable” jurisdiction • Unless expressly conferred by legislation – Fairness vs separation of powers? • Eg obligation to negotiate “in good faith” in civilian contract law – Art 1337 Italian civil code, Art 242 BGB • Eg fewer powers to find contempt of court in civil law tradition
    35. 35. Judges and statutory interpretation
    36. 36. Judges and statutory interpretation• Good illustration of difference in judicial role: To what extent do judges have power to interpret statutes liberally?
    37. 37. Judges and statutory interpretation• Good illustration of difference in judicial role: To what extent do judges have power to interpret statutes liberally?• Traditional civil law approach: little discretion
    38. 38. Judges and statutory interpretation• Good illustration of difference in judicial role: To what extent do judges have power to interpret statutes liberally?• Traditional civil law approach: little discretion• Rationale
    39. 39. Judges and statutory interpretation• Good illustration of difference in judicial role: To what extent do judges have power to interpret statutes liberally?• Traditional civil law approach: little discretion• Rationale• Implications of this approach: potentially very detailed statutes
    40. 40. Judges and statutory interpretation
    41. 41. Judges and statutory interpretation• Eg Prussian Civil Code: 17,000 paras
    42. 42. Judges and statutory interpretation• Eg Prussian Civil Code: 17,000 paras• Ban on judges’ indulging “in any arbitrary deviation, however, slight, from the clear and express terms of the laws, whether on the ground of some allegedly logical reasoning or under the pretext of an interpretation based on the supposed aim and purpose of the statute”
    43. 43. Judges and statutory interpretation• Eg Prussian Civil Code: 17,000 paras• Ban on judges’ indulging “in any arbitrary deviation, however, slight, from the clear and express terms of the laws, whether on the ground of some allegedly logical reasoning or under the pretext of an interpretation based on the supposed aim and purpose of the statute”• If in doubt: matter submitted to statutory commission
    44. 44. Judges and statutory interpretation
    45. 45. Judges and statutory interpretation• Contrast: French Civil Code (2281 articles) – More realistic approach – No attempt to foresee all possible individual situations – Art 4: If judge refuses to make decision on the ground that the law is silent or obscure or inadequate, he may be held responsible – Example: Art 1382-1386 on tort
    46. 46. Judges and statutory interpretation• Contrast: French Civil Code (2281 articles) – More realistic approach – No attempt to foresee all possible individual situations – Art 4: If judge refuses to make decision on the ground that the law is silent or obscure or inadequate, he may be held responsible – Example: Art 1382-1386 on tort• Subject to quashing of judicial decisions which misinterpret written statutes by Court of Cassation
    47. 47. Judges and statutory interpretation
    48. 48. Judges and statutory interpretation• Fallacy of the “self-applying statute” – what about: – New problems? – Gaps in the statute? – Lack of clarity of language?
    49. 49. Judges and statutory interpretation
    50. 50. Judges and statutory interpretation• Different reactions to these problems: – How do Irish judges approach them? – Italy: Italian Civil Code 1942 • Actual meaning of words and intention of legislature • If this isn’t decisive, consider provisions regulating similar cases • If this no help, look at general principles of legal order of State – Contrast: Swiss Civil Code • When all aids to interpretation fail, should employ the rule they would adopt if they were a legislator
    51. 51. Judges and statutory interpretation• Different reactions to these problems: – How do Irish judges approach them? – Italy: Italian Civil Code 1942 • Actual meaning of words and intention of legislature • If this isn’t decisive, consider provisions regulating similar cases • If this no help, look at general principles of legal order of State – Contrast: Swiss Civil Code • When all aids to interpretation fail, should employ the rule they would adopt if they were a legislator• Why is the Swiss method termed “legal realism”?
    52. 52. Judges
    53. 53. Judges• Caveat to this role: – Judicial review – Constitutional review – Constitutional courts – move towards Rechtsstaat • Austria, Italy, Germany, Spain • Contrast French Conseil constitutionnel • Contrast how Irish courts deal with constitutional review – Application of EU law
    54. 54. Judges• Caveat to this role: – Judicial review – Constitutional review – Constitutional courts – move towards Rechtsstaat • Austria, Italy, Germany, Spain • Contrast French Conseil constitutionnel • Contrast how Irish courts deal with constitutional review – Application of EU law• Differences in perception of importance and prestige of judges – As v practice, academia – Exception: constitutional courts – Move up hierarchy based on seniority, merit
    55. 55. Legal academics
    56. 56. Legal academics• Civil law: “law of the professors” – Origins in Roman jurisconsults – Eg Gaius’ Institutes – Italian Glossators – Up to 19th C: German practice of sending cases to a university for opinion – Common law: “law of the judges”
    57. 57. Legal academics• Civil law: “law of the professors” – Origins in Roman jurisconsults – Eg Gaius’ Institutes – Italian Glossators – Up to 19th C: German practice of sending cases to a university for opinion – Common law: “law of the judges”• Law as science – Certainty, coherence
    58. 58. Legal academics• Civil law: “law of the professors” – Origins in Roman jurisconsults – Eg Gaius’ Institutes – Italian Glossators – Up to 19th C: German practice of sending cases to a university for opinion – Common law: “law of the judges”• Law as science – Certainty, coherence• References to “la doctrine” in general, rather than individual academics – Italy: citation of individual opinions banned by Art 118 of Code of Civil Procedure 1941
    59. 59. Legal academics
    60. 60. Legal academics• Theory vs reality – French law of torts – Increased publication of judicial decisions • Wasn’t always the case that they were published in full (eg Italy: facts not published until 1960s) – Increasing references to “academic” publications in common law jurisdictions – Former common law rule banning citation of living authors in disuse

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