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Slides 7
- 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
- 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
- 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
- 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?
- 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
- 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
Editor's Notes
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