This document provides an introduction to civil law and compares the procedures used in civil law systems to those used in common law systems. It notes that civil law systems use an inquisitorial approach led by a judge, while common law systems use an adversarial approach driven by lawyers. In civil law, evidence is gathered over several smaller hearings rather than in one compressed trial. Judges play a more active role in questioning witnesses rather than lawyers. Criminal procedures also follow an inquisitorial model with investigative and examining phases led by a judge, unlike common law systems which rely on public prosecutors. Overall, the document outlines some of the key distinctions between civil and common law approaches to legal procedure.

1. Introduction to Civil Law
School of Law An Scoil Dlí

2. Introduction to Civil Law
Dr Suzanne Kingston
School of Law An Scoil Dlí

3. Legal Procedure in Civil Law systems

4. Legal Procedure in Civil Law systems
• Fundamental distinction: civil v criminal
procedure

5. Overarching distinctions between common law
and civil law approach to procedure

6. Overarching distinctions between common law
and civil law approach to procedure
• Common law “adversarial” tradition vs civil law
“inquisitorial” tradition
– Adversarial: lawyer-driven procedure – relatively
passive traditional role of judge – lawyer puts
questions
• Examination-in-chief
• Cross-examination
– Inquisitorial: judge-led procedure – judge puts
questions
• http://www.youtube.com/watch?
v=R_7weUR0oMY&feature=related

7. Overarching distinctions between common law
and civil law approach to procedure
• Common law “adversarial” tradition vs civil law
“inquisitorial” tradition
– Adversarial: lawyer-driven procedure – relatively
passive traditional role of judge – lawyer puts
questions
• Examination-in-chief
• Cross-examination
– Inquisitorial: judge-led procedure – judge puts
questions
• http://www.youtube.com/watch?
v=R_7weUR0oMY&feature=related
• Importance of compressed “trial” in common law

8. Overarching distinctions between common law
and civil law approach to procedure
• Common law “adversarial” tradition vs civil law
“inquisitorial” tradition
– Adversarial: lawyer-driven procedure – relatively
passive traditional role of judge – lawyer puts
questions
• Examination-in-chief
• Cross-examination
– Inquisitorial: judge-led procedure – judge puts
questions
• http://www.youtube.com/watch?
v=R_7weUR0oMY&feature=related
• Importance of compressed “trial” in common law
• Role of jury in common law
– This leads to complex evidence rules

9. Civil procedure

10. Civil procedure
• Typical procedure in civil law systems: the French
example
– Preliminary stage
• Submission of pleadings
• Appointment of “instructing judge”
– Taking of evidence by instructing judge
– Taking of decision by different judge(s) after
• Considering instructing judge’s record of the evidence
• Looking at pleadings and submissions

11. Civil procedure

12. Civil procedure
• No compressed “trial”
– Several smaller hearings, meetings, submissions
– Less pressure on lawyers
– No emphasis on “discovery” and less emphasis on
pre-trial procedures than common law jurisdictions

13. Civil procedure
• No compressed “trial”
– Several smaller hearings, meetings, submissions
– Less pressure on lawyers
– No emphasis on “discovery” and less emphasis on
pre-trial procedures than common law jurisdictions
• Less emphasis on initial pleadings than common
law

14. Civil procedure
• No compressed “trial”
– Several smaller hearings, meetings, submissions
– Less pressure on lawyers
– No emphasis on “discovery” and less emphasis on
pre-trial procedures than common law jurisdictions
• Less emphasis on initial pleadings than common
law
• Importance of division of judicial role
– Pros and cons?

15. Civil procedure
• No compressed “trial”
– Several smaller hearings, meetings, submissions
– Less pressure on lawyers
– No emphasis on “discovery” and less emphasis on
pre-trial procedures than common law jurisdictions
• Less emphasis on initial pleadings than common
law
• Importance of division of judicial role
– Pros and cons?
• Civil procedure codes in civil law systems

16. Civil procedure

17. Civil procedure
• Differences in rules on costs
– What is the rule in:
• Ireland?
• The UK?
– This means that costs are “taxed”
– Contrast the US: each party pays own lawyer
– Civil law: costs “follow the event”
• But may be subject to standard fee calculation (eg Germany)

18. Civil procedure
• Differences in rules on costs
– What is the rule in:
• Ireland?
• The UK?
– This means that costs are “taxed”
– Contrast the US: each party pays own lawyer
– Civil law: costs “follow the event”
• But may be subject to standard fee calculation (eg Germany)
• Different approach to “contingency fees”
– Banned in Germany until 2007 Federal Constitutional Court
judgment
– Allowed in eg UK (“conditional fee”), Ireland, France

19. Civil procedure
• Differences in rules on costs
– What is the rule in:
• Ireland?
• The UK?
– This means that costs are “taxed”
– Contrast the US: each party pays own lawyer
– Civil law: costs “follow the event”
• But may be subject to standard fee calculation (eg Germany)
• Different approach to “contingency fees”
– Banned in Germany until 2007 Federal Constitutional Court
judgment
– Allowed in eg UK (“conditional fee”), Ireland, France
• Different approaches to quantum of damages available
– IRL, UK approaches?
– US: multiple, penal damages available
– Civil law: penal damages rare

20. Civil procedure

21. Civil procedure
• Risk of over-exaggerating differences between
common law and civil law systems
– Judges increasingly “active” in some common law
systems – not just in eg juvenile, incapacitated
persons cases
– Judges often prompted to ask questions in civil law
systems by parties
• Lawyer makes proposal to instructing judge that
witness be called to testify – “offer of proof”
• No cross-examination
• Opposing counsel may make suggestions to
instructing judge about wording of record
• Opposing counsel may argue that witness is
disqualified on basis of bias

22. Criminal procedure

23. Criminal procedure
• Inquisitorial procedure originally civil law only
– Common law: “accusatorial” private suits

24. Criminal procedure
• Inquisitorial procedure originally civil law only
– Common law: “accusatorial” private suits
• Common law: shift to public prosecutor
– Private barristers still used
– Importance of jury trial means not inquisitorial
– Eg English fully centralised public prosecutor
(Crown Prosecution Service) only est 1985
– Ireland: DPP est 1974

25. Criminal procedure

26. Criminal procedure
• Typical civil law system inquisitorial procedures:
– Investigative phase: under direction of public prosecutor,
helped by police
– Examining phase:
• Examining judge investigates and prepares written record
(France, Belgium, NL)
• Judge decides what witnesses to be called
• Public prosecutor participates eg by suggesting questions to
ask D
• Abolished by Germany 1975
• France’s changes – L’affaire D’outreau; role goes to parquet
http://www.youtube.com/watch?v=6VLienmAM4k
– Outcry: The end of independent investigations?
• Movement towards concentration of trial

27. Criminal procedure
• Typical civil law system inquisitorial procedures:
– Investigative phase: under direction of public prosecutor,
helped by police
– Examining phase:
• Examining judge investigates and prepares written record
(France, Belgium, NL)
• Judge decides what witnesses to be called
• Public prosecutor participates eg by suggesting questions to
ask D
• Abolished by Germany 1975
• France’s changes – L’affaire D’outreau; role goes to parquet
http://www.youtube.com/watch?v=6VLienmAM4k
– Outcry: The end of independent investigations?
• Movement towards concentration of trial
• Who carries out these steps in common law trials?

28. Criminal procedure

29. Criminal procedure
• Trial
– Different function to common law trial: record already
written
– Right to a jury not as absolute as common law
• Though does exist for serious offences in some countries (eg
France if 10+ years punishment possible)
• Juries abolished Germany 1924
– Public (contrast common law origins)
• What is the purpose of publicity in criminal trials?
– Different approach to “plea bargaining”
• Rationale of common law approach?
• Eg US in 2003: 96% of criminal convictions from guilty pleas
• Though now German, Italy, France accept (for less serious
cases)

30. Right to a jury

31. Right to a jury
• No right to a jury
– Contrast role of jury in common law systems:
• IRL? What is the function of a jury? UK? US?

32. Right to a jury
• No right to a jury
– Contrast role of jury in common law systems:
• IRL? What is the function of a jury? UK? US?
• Why the difference? How best to discover the
truth?
– Contrast: judicial control of sentencing in common
law jurisdictions
– Who sits on juries?

33. Right to a jury

34. Right to a jury
• Implications of right to a jury
– Exclusionary rules of evidence necessary
• Eg rule against hearsay
– No similar exclusionary rules in civil law
• Witnesses may be disqualified on grounds of bias
• Witness can be asked by other party to swear an oath
as to his knowledge of the fact at issue (“decisory
oath”)
– Sets limits on appeal (only eg error of law,
evidentiary error etc)
– No reasons for decision

35. Criminal procedure

36. Criminal procedure
• Procedural safeguards:
– Right to representation
– Right to inspect examining judge’s file
– D can refuse to answer questions

37. Criminal procedure
• Procedural safeguards:
– Right to representation
– Right to inspect examining judge’s file
– D can refuse to answer questions
• Advantages of civil law procedure?
– Avoids underfunding of criminal defence?
– More appeals possible?
– More discretion on hearsay?

38. Criminal procedure
• Procedural safeguards:
– Right to representation
– Right to inspect examining judge’s file
– D can refuse to answer questions
• Advantages of civil law procedure?
– Avoids underfunding of criminal defence?
– More appeals possible?
– More discretion on hearsay?
• Common misconceptions about civil law systems:
– No right to a jury trial in criminal matters
– No presumption of innocence in criminal matters
• Eg French law 2000
– No oral procedure