(Tiểu luận) comparison between the two systems of law civil law and common law take examples of those systems from any countries

B GIO DC V ĐO TO
TRƯỜNG ĐI HỌC KINH TẾ QUỐC DÂN
VIỆN NGÂN HÀNG – TÀI CHÍNH

ESSAY

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SUBJECT: FUNDAMENTALS OF LAW
TOPIC: COMPARISON BETWEEN THE TWO SYSTEMS OF LAW: CIVIL
LAW AND COMMON LAW. TAKE EXAMPLES OF THOSE SYSTEMS
FROM ANY COUNTRIES.
LECTURER: LLM KHANH NGUYEN TRAN
STUDENTS: NGUYEN NAM ANH
LE THI NGOC ANH
LE THI NGOC ANH
NGUYEN HOANG DIEU ANH
PHAM KIEU ANH
CLASS: BFI 64 – FINANCIAL INVESTMENT
Hà Nội, November 24th, 2022


Contents
ESSAY ........................................................................................................................1
I. GENERAL DESCRIPTION ....................................................................................3
1. Definition and importance of law ........................................................................3
2. Introduction of legal system ................................................................................3
3. Types of law ........................................................................................................4
II. Common Law .........................................................................................................4
1. Definition .............................................................................................................4
2. Types of Common Law .......................................................................................5
3. Advantages and disadvantages ............................................................................5

III. Civil Law ...............................................................................................................5
1. What is the Civil Law? ........................................................................................5
2. Types of civil law ................................................................................................6
3. Advantages and Disadvantages of civil law ........................................................7
IV. Comparison between Civil law & Common law ..................................................7
V. Examples ..............................................................................................................10
VI. Exercises .............................................................................................................12

Reference sources:
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I. GENERAL DESCRIPTION
1. Definition and importance of law
- Definition:
+ The Oxford Dictionary defines a law as “a rule established among a community
and enjoining or prohibiting certain action; the system made up of these things; any
rule of procedure”.
+ Law consists of rules that establish modes of behavior and procedures.
- Importance:
+ Defending us from evil
+ Promoting the common good
+ Resolving disputes over limited resources
+ Encouraging people to do the right thing

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Ex: Traffic rules and speed restrictions are in place to ensure that we travel safely.
Ex: The proper training of the people who care for us and frequently hold our lives
in their hands is ensured through licensing for doctors and nurses.
2. Introduction of legal system
- Law includes the legal system which establishes procedures and institutions to
make, administer, adjudicate and enforce the law in the community.
- In our legal system law-making is primarily the responsibility of the
Commonwealth Parliament and the state parliaments.
- Courts (judges and magistrates) are responsible for interpreting the meaning of the
law and resolving disputes when it is claimed that the law has been broken
(adjudicating).
Legal rules differ from non-legal rules in that legal rules apply to the community
as a whole.
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3. Types of law
There are generally considered to be five legal systems in the world today: civil law,
common law, customary law, religious law, and mixed legal systems.
- Civil law systems: have their origin in the Roman legal tradition. Nations with
civil law systems have comprehensive, frequently updated legal codes. Most
importantly, case law is a secondary source in these jurisdictions. France and
Germany are two examples of countries with a civil law system
- Common law systems: while they often have statutes, rely more on precedent,
judicial decisions that have already been made. Common law systems are
adversarial, rather than investigatory, with the judge moderating between two
opposing parties. The legal system in the United States is a common law system
- Customary law systems: are based on patterns of behavior (or customs) that have
come to be accepted as legal requirements or rules of conduct within a particular

country. The laws of customary legal systems are usually unwritten and are often

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dispensed by elders, passed down through generations
- Religious legal systems: are systems where the law emanates from texts or
traditions within a given religious tradition. Many Islamic nations have legal
systems based in whole or in part on the Quran.
- Mixed legal systems: refer to legal systems where two or more of the above legal
systems work together.
II. Common Law
1. Definition
Common law, also known as case law, is a body of unwritten laws based on legal
precedents established by the courts. Courts create common law by trying different
types of cases and setting a precedent for rulings in such cases.

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The common-law system prevails in England, the United States, and other countries
colonized by England. The common-law system is also used in Canada, except in
the Province of Quebec, where the French civil law system prevails.
2. Types of Common Law
There are two types of Common Law:
- General common law is where laws are created for situations and circumstances
that do not have a precedent. Contract law is an example.
- Interstitial common laws are temporary laws created by the courts through
interpretations of existing statutes. An example of this type of law is the choice to
exclude wheelchairs from a “no wheeled vehicles on sidewalk” ordinance.
3. Advantages and disadvantages

As with any legal system, common laws have their own pros and cons.
- Advantages: Through the use of precedents, common law systems represent a

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chain of thought regarding a particular issue. The precedents and reasoning that
connect these thoughts parallel the thinking and the issue’s role in society. As such,
common law is remarkably consistent and logical in its handling of cases.
- Disadvantages: Common law systems can become outdated because they heavily
rely on past rulings. Society is constantly in a state of flux and past rulings, which
may have seemed right then, may no longer apply in new cases.
III. Civil Law
1. What is the Civil Law?
- Civil Law or Continental is one of the systems with the longest history of
development compared to different legal systems in the world.
- Today, the scope of influence of the Civil Law system is relatively wide, including
continental European countries (France, Germany, Italy...), Quebec (Canada),
Louisiana (USA), Japan and some European countries. Latin America (Brazil,
Venezuela...).
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~ In short Civil Law is:
- A comprehensive system of rules and principles that are usually organized by rule
and easily accessible to citizens and jurists.
- A well-organized system favoring cooperation, order, and predictability, based on
a logical and dynamic classification developed from Roman law and reflected in the
structure of codes.
- An adaptive system, with civil rules that avoid excessive detail and contain
general provisions that allow adaptation to change.

- A system that is primarily legislative, but still leaves room for the judiciary to
adapt the rules to social change and new needs, by way of interpretation and
innovative jurisprudence.
2. Types of civil law
- French Civil Law: in France, Spain, and former French colonies

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- German Civil Law:in Germany, Austria, Switzerland, Greece, Japan, Korea, and
the Republic of China (Note: Current Chinese law and Vietnamese law, according
to academic tradition, are classified under the legal system. society, but in practice
many civil regulations, proceedings and court systems have many features of Civil
Law)
- Civil Law of Scandinavian countries: Denmark, Sweden, Finland, Norway and
Ireland. Portuguese and Italian law is also influenced by France and Germany, but
19th century civil codes are closer to Napoleonic law and 20th century civil codes
are more similar to German civil law. In terms of legal training, these countries are
more similar to the German legal system. Laws in these countries are often referred
to as complex phase (mixed) legal systems. The law in the Netherlands or the civil
law in the Netherlands is difficult to put into any group, but it must be admitted that
the Dutch civil law has had a significant influence on the modern private law of
many countries. For example, current Russian civil law is directly influenced by
Dutch law.
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3. Advantages and Disadvantages of civil law
- The advantages of the civil system are that it better applies the principle of
legality, in such a way that the average person is or can be fully aware of the
consequences of his actions by referring to written law.
This warning is given beforehand in such a way that the person can only be judged
according to a known law and not an arbitrary one. Laws passed in Civil law
jurisdictions aren’t retroactive. They only apply for the future (with few exceptions)
which means that the legislature cannot arbitrarily apply laws to whoever it wants.
In addition to that, while it doesn't play a major role, judges often use jurisprudence
(or previous cases) to judge issues where the law remains silent or unclear, giving
the judge some freedom.)
- The disadvantages of such a system are that it remains static.

A judge can never interfere in the domain of law by giving wide interpretations. He
can only apply written law with a narrow margin of appreciation. This can lead to

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injustices, some of which might sound ridiculous, but nevertheless are the result of
applied law. Otherwise, this system gives too much power to legislators and not
enough to judges. A Civil law legislature can unilaterally (at least in parliamentary
systems) pass any law, even the most arbitrary of them, which also leads to
injustices.)
IV. Comparison between Civil law & Common Law
Civil Law

Common Law

Both systems have similar sources of law- both have statutes and
Evolution

both have case law, they approach regulation and resolve issues
in different ways, from different perspectives

Legal System

Legal system originating in

The legal system is

Europe whose most prevalent

characterized by case law, which

feature is that its core

is law developed by judges

principles are codified into a

through decisions of courts and

referable system that serves

similar tribunals
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as the primary source of law.

Role of judges

Chief investigator; makes

Makes rulings; sets precedent;

rulings, usually non-binding

referees between lawyers.

to 3rd parties. In a civil law

Judges decide matters of law

system, the judge’s role is to

and, where a jury is absent, they

establish the facts of the case

also find facts. Most judges

and to apply the provisions of

rarely inquire extensively into

the applicable code. Though

matters before them, instead

the judge often brings the

relying on arguments presented

formal charge.

by the part

Spain, China, Japan,
Germany, most African
Countries

nations, all South American

United States, England,
Australia, Canada, and India

nations (except Guyana), and
most of Europe
Always

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Constitution

Only used to determine
Precedent

administrative of
constitutional court matters
In cases of civil law, the
opinion of the jury may not
have to be unanimous. Laws
vary by state and country.

Role of jury

Juries are present almost
exclusively in criminal cases;
virtually never involved in
civil actions. Judges ensure
law prevails over passion.

History

Not always
Used to rule on future or present
cases

Juries are composed only of
laypersons — never judges. In
the U.S., juries are employed in
both civil and criminal cases.
Their function is to weigh
evidence presented to them and
to find the facts and apply the
law.

The civil law tradition

Common law systems have

developed in continental

evolved primarily in England

Europe at the same time and

and its former colonies,
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was applied in the colonies of

including all but one US

European imperial powers

jurisdiction (Louisiana) and all

such as Spain and Portugal.

but one Canadian jurisdiction
(Quebec). For the most part, the
English-speaking world operates
under common law.

1. Constitution
2. Legislation – statutes and
subsidiary legislation
3. Custom
Sources of
Law

4. International Law
5. Nota bene: It may be
argued that judicial
precedents and conventions
also function within

2. Legislation – Statutes and
subsidiary legislation
3. Judicial precedent – common

law and equity
4. Custom
5. Convention
6. International Law

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Continental systems, but they

1. Constitution (not in the UK)

are not generally recognised.
Inquisitorial. Judges, not
Type of

lawyers, ask questions, and

argument and

demand evidence. Lawyers

role of

present arguments based on

lawyers

with the evidence the court
finds.

Adversarial. Lawyers ask
questions of witnesses, demand
the production of evidence, and
present cases based on the
evidence they have gathered.

Evidence demands are within
the sovereign inquisitorial

Widely understood to be a

function of the court — not

necessary part of the litigants’

Evidence

within the lawyers’ role. As

effective pursuit or defense of a

Taking

such, “discovery” by foreign

claim. Litigants are given wide

attorneys is dimly viewed,

latitude in US jurisdictions but

and can even lead to criminal

are more limited outside the US.

sanctions where the court’s
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role is usurped
V. Examples
Justice System:
Judges genuinely make decisions in the civil court systems of other nations. When
necessary, they gather evidence, frame the issues, and make legal decisions. Judges
control the process rather than leaving it to competing lawyers, who will always
look for an advantage. To determine the parties' legal claims from the outset of the
action, they impartially apply the law to the facts. The parties must lend a hand.
Particularly the German system offers a crystal-clear illustration of how a civil
justice system can function more effectively.

GERMANY (CIVIL)

THE UNITED STATES (COMMON)

Parties in Germany are required to

In contrast, plaintiffs in the United

inform judges of their claims right away.

States provide few facts and scant

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German plaintiffs must provide evidence

evidence in their complaints. They had

to back up their assertions in their

to at least state the facts before 1938.

complaints. They must specify the
supporting documentation they intend to
use, and defendants must, whenever
possible, substantiate their denials with
facts.
German judges are involved in cases

Judges do not typically review

from the beginning. Plaintiffs' complaints complaints before service or at any other
are initially read by judges, not by

time in the United States. On the

defendants. Judges review complaints

defendants' request, they may review

after they are filed to ensure that they

particular areas after service, but this

comply with procedural requirements and post-service review is more timeto decide whether the facts asserted will

consuming and expensive than its

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justify judgements if proven. The

German counterpart. The requirement

defendants are only served with

that there be a determination which the

complaints after judges have considered

asserted claims are legally "plausible"

them; unfounded complaints typically

(embodied in two recent Supreme Court

don't proceed this far.

decisions, Twombly and Iqbal) was

received with vociferous criticism.

In Germany, parties and courts work

Early pretrial conferences are not

together to frame disputes. German

frequently held by courts in the United

judges typically order parties to enter

States, and when they are, they are

joint conferences when they approve

typically used to set deadlines rather

complaints for service. Judges consult

than to outline concerns. They hardly

with both sides at these meetings, not just ever demand the presence of the
their attorneys but also the parties to the

plaintiffs. Parties are not obligated to

dispute themselves. The problems that

work together (although the Federal

they must consider in order to judge

Rules Committee is currently

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cases are framed during negotiations with considering one).
the parties. They establish which facts are
relevant and in dispute, they define what
the plaintiffs are asking for, and they
specify which legal principles may be
involved. Parties have a legal obligation
to cooperate, which requires them to
provide judges with complete responses
and, where necessary, to substantiate
claims with offers of proof.
Judges in Germany only take evidence on In contrast, the parties themselves
disputed matters of material fact. Judges

decide what evidence should be sought

don't waste their time on evidence that

in the United States. They may compel

isn't relevant to their decisions, i.e.,

their opponents to reveal any material

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evidence that doesn't help settle a

they deem "relevant" to a claim or

contested material issue. Parties may

defense without a court order and

request the court to take evidence for

outside of court. They are not restricted

matters that are important and in dispute.

to gathering evidence related to

Judges make decisions about these

important and contentious issues,

requests in written orders that specify the

resulting in exorbitantly expensive and

issues on which individual witnesses'

time-consuming evidence-gathering

testimony may be used as evidence. They

free-for-alls.

only gather evidence in court. A statutory
duty of clarification imposes on judges
the requirement that they refrain from
issuing unfavorable decisions on key
issues without first informing the parties
that they must present evidence or
otherwise challenge the specific issue.

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German judges give reasons for their

In bench trials, which are very

choices. German trial judges are

uncommon in the United States, judges

obligated to properly explain their

do provide justification for their choices;

decisions, which includes stating the

however, jury trials leave the parties in

uncontested facts of the case, outlining

the dark.

the parties' divergent positions, and
outlining their justifications for how they
chose to resolve the disputed matters.
VI. Exercises
1. The current legal system of Vietnam is
A. Common Law
B. Civil law with modifications from Maxist-Leninist ideology
C. Feudal legal system
D. Civil law with modifications from French legal system
2. The principle of the State of Vietnam is
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A. Democratic decentralism
B. Centralism and decentralism
C. Democratic centralism
3.The basic functions of Government are
A. administration of Laws, abolishment of Laws
B. enforcement of Laws, promulgation of Laws
C. administration of Laws, enforcement of Laws
4. Purposes and Functions of Law
A. Establishing standards, Maintaining relationships, Resolving disputes,
B. Protecting conflicts.
C. Establishing relationships, Maintaining order, Resolving disputes, Protecting
D. Liberties and rights.

E. Establishing standards, Maintaining order, Resolving disputes, Protecting
liberties and rights.
5. The law will protect humans from
A. Justice system

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B. Other people who want to do harm to mankind
C. Groups fighting for specific rights
6. The law
A. Promote the common good
B. Promote special organizations
C. Promote special social groups
7. The law is a guide post for minimally acceptable behavior in society
A. True
B. False
8. In Common law
A. Judicial cases are the most important source of law
B. Codes and statutes cover all eventualities
C. Judges do not contribute to rules
9. In Civil law
A. Judicial cases are the most important source of law
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B. Codes and statutes cover all eventualities
C. Judges can contribute to rules
10. In Common law
A. Judges are more like investigators
B. Judges are rather arbiters

C. Judges are more like guides
11. In Civil law
A. Judges are more like investigators
B. Judges are rather arbiters
C. Judges are more like guides
12. In Common law
A. Judges ask questions and demand evidence
B. Lawyers ask questions of witnesses and demand production of evidence
C. Lawyers are arbiters
13. In Civil law
A. Judges ask questions and demand evidence

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B. Lawyers ask questions of witnesses and demand production of evidence
C. Lawyers are arbiters
14. Vietnamese Law
A. Is supported by state coercion
B. Applies to a specific part of country
C. Is an unstable and diversified system
D. Is a system of relations
15. The country uses Common Law:
A. Japan
B. Spain
C. China
D. The UK
16. The country uses Civil Law:
A. The USA
B. Australia
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C. Germany
D. Canada

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