comparitive law总结.doc

The Roman Legal System 罗马法 书P17-19 lecture1Definition: Also the Roman law, its influence starts in the West, is the entire Roman legal output of nearly a millennium stretching from Twelve Tables (c.450 B.C) to the Justinian compilations(c.534 A.D). It was as early as the third century B.C, during the Republic, that there appeared a class of men of education and political influence who discussed and wrote about legal problems. What we know as Roman law evolved through the accretion of the opinions they rendered case by case. From Justinians times to the present , the term Roman law, generally has meant that Roman law as it appears in the sixth century Corpus Juris Civilis of Justinian. Which is based on the traditional law and the legislation of the city of Rome, and in form comprises legislation of the assemblies, resolves of the senate, enactments if the emperors, edicts of the praetors, writings of the jurisconsults, and the codes of the later emperor.The Corpus Juris Civilis 民法大全（查士丁尼法典） 书P19 lecture1time：It appears in the sixth century. The date of the publication is A.D. 533.person: Justinian, the Byzantine Emperor in the sixth century A.D.contents: The Corpus Juris Civilis included four parts: 1) a textbook for law students (the Institutes ); 2) a collection of juristic works (the Digest); 3) a collection of imperial enactments (the Code) and 4) Justinians own enactments (the Novels).significance:The Digest was by far the most important in terms of its influence on the civil law tradition, particularly in the areas of personal status, torts, unjust enrichment contracts and remedies. The Digest was a treatise representing the distillation of what was most valuable from the best Roman legal writings from all previous periods. The Digest itself became the principle source of knowledge about what the Roman law of earlier periods had been like. Together, the Digest and the Code were meant to be a complete and authoritative restatement of Roman law.Codification法典编纂 书P31-37 lecture1The Civil Law System (The Code of Civil Law) 法国民法典拿破仑法典The French Civil Code of 1804, drafted in a remarkably short period of time by a commission of four eminent jurists, has a just claim to being the first modern code. （时间，地点，人）Napoleon provided five basic codes：the Civil Code, the Penal Code, the Commercial Code, the Codes of Civil and Criminal Procedure. The three ideological pillars （三大精神支柱）of the French civil code were ：private property, freedom of contract and the patriarchal family. Significance:In any case the influence of Roman law had been only partial, being strongest in areas of law most influence by academic and practicing lawyers, such as contract, property and later tort, whereas family law had been largely determined by custom and administrative law by local legislation. The new Code also gave a new meaning to the Civil Law, because they were primarily concerned with private law. Civil law has also been an important influence in international lawcertainly the law of the European Community.可能考的（不一定）：(To varying degrees, in different parts of the world, American, English and French ideas about equality, democracy, representative government, the separation of powers, and natural rights to life, liberty and property were helping to shape systems of public law.) The primary role of the state(国家的首要作用)P34形式上的三分结构the formal tripartite structure、法律的实体规范substantive rules of law P35-36最下面一段里风格形式in form and style，P36最下面一段法律的功能P37号后面the function of law is Separation of Powers 权力分立 书P61 Topic1 Definition：The separation of powers, also known as trias politica, is a model for governance of democratic states, is a feature more inherent to presidential systems . Under this model, the Roman Republic is divided into three independent branches(the Senate, the Assemblies, and the Magistrates)or estates, each with separate and powers and areas of responsibility. The normal division of estates is into an executive, a legislature, and a judiciary. Montesquieus tripartite system also described division of political power among an executive, a legislature, and a judiciary. The opposite of separation of power is the fusion of powers, often a feature of parliamentary democracies. Comparison with fusion of powers(1) ”Separation of powers” is characteristic of parliamentary systems, whereas “fusion of powers” is characteristic of parliamentary ones.(2) In fusion of powers, one government(invariably the elected legislature) is supreme, and the other estates are subservient to it. In separation of powers, each estate is largely (although not necessary entirely) independent of the others.(3) In a fusion of powers system, the people elect the legislature. Which in “creates” the executive. In a separation of powers, the national legislature does not select the person or persons of the executive; instead, the executive is chosen by other means(direct popular election, electoral college selection, etc.)Branches:The normal division of estates is into an executive,a legislature, and a judiciary.Montesquieus tripartite system also described division of political power among an executive, a legislature, and a judiciary.The government of the Roman Republic devided power into three independent branches: the Senate, the Assemblies, the Magistrates. (书P62) Separation of powers to an American evokes the familiar system of checks and balance among the three coordinate branches of governmentlegislative, executive and judicialeach with its independent constitutional basis.Other branches: the Auditory, the Electoral, the Popular, the Bureaucracy, the Press.Judicial Review 违宪审查 书P63，65 Topic2Definition: Judicial review is the power of the courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher norm. Judicial review is an example of the functioning of separation of powers in a modern governmental system. This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state and state.3 models：U.S. French German:Germany 书P65-66The constitution of the Federal Republic of Germany establishes a separate Federal Constitutional Court of Germany that is empowered with reviewing acts of Federal Republic Congress(the Bundestag) for their constitutionality. The Federal Constitutional Court of Germany do not deal with appellate cases in civil and criminal lawbut rather, just in constitutional cases, and even review and reject constitutional amendments on the grounds that they are contradictory to the rest of the Federal Republic Constitution. This goes beyond even the power of the Supreme Court of the United States, and the Supreme Court of Canada.The United StatesJudicial review in the United states refers to the power of the court to review the actions of public sector bodies in terms of their lawfulness, or to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute , a treaty, or the Constitution itself. The Constitution states in Article III:”The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establishThe judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authorityIn all cases affecting ambassadors , other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdictions, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”France 书P65When France in 1958 instituted a system of constitutional review of laws passed by the National Assembly, it created a special new governmental organ, the Constitutional Council. This body is authorized to review legislation, but only at the request of the executive or a specified proportion of the legislature, only before promulgation, and only for the limited purpose of ascertaining whether the laws are in conformity with the constitutional division of powers between the executive and legislative branches.(Hong KongThe Judicial review, as part of the Common Law, is preserved in Hong Kong. Article 35 of the Basic Law expressly provides the right of citizen to review executive acts in the court of law. Under the Basic Law, the court of Hong Kong is also delegated with the power to interpret the Basic Law. Thus, its recognized by the Hong Kong courts that they have jurisdiction to check whether the executive or legislature are working within the boundaries of the Basic Law. Like the United States, Hong Kong courts also held that they may review as to whether legislation passed by the legislature are in compliance with the Basic Law.)【中国大陆有没有违宪审查，如果有，谁负责违宪审查，是哪种违宪审查制度；如果没有，大陆是否有必要确立违宪审查制度，哪种违宪审查制度合适？】1. 司法审查定义。必须包含consist of两方面：行政审查Administrative review和立法审查Legislative review（合宪性constitutionality，合法性Legitimacy）缺一不可both indispensable大陆现状：有行政审查无立法审查。因此没有真正的司法审查制度。2. 建立司法审查制度，尤其立法审查的必要性：a. 大陆现状：制法权力spread out。行政机关可以制定develop规章regulations and directives，司法机关Judiciary可以制定司法解释Judicial interpretation，效力都与立法机关Legislature制定的法律一致。法律冲突严重Serious conflict of laws。众多下位法Subordinate laws和上位法Higher law，尤其宪法Constitution出现冲突，但法律未授权Authorize, grant authorization任何组织或个人Any organization or individual以宣告法律违反宪法和上位法而无效void的权力。2003年Judge李慧娟案。判决书Verdict，地方法规Local regulations，省人大Provincial Peoples Congress，当然无效Of course void，弹劾Impeach，越权exceed ones powersb. 可解决法律冲突，限制行政机关、立法机关乃至司法机关制定法律法规的任意性Arbitrary，维护法律系统的严谨架构Rigorous structure。3. 哪种制度合适？ 参考德国模式。P66 Legal Education 法律教育 书P75 lecture5Definition：Legal education is the education of individuals who intend to become legal professionals or those who simply intend to use their law degree to some extend, either related to law(such as politics or academic) or business. It includes:a. First degrees in law, which may be studied at either undergraduate or graduate level depending on the country.b. Vocational courses which prospective lawyers are required to pass in some countries before they may enter practice.c. Higher academic degrees.Similarities and Differences in Civil Law & Common Law：书P76-77（比较时要有examples来证明，回归书本！）Similaritiesa. Law training is Undergraduate university education.b. It tends to be general and interdisciplinary rather than professional.c. Organized legal studies, students learn in law school.d. Students become lawyers by passing a bar exam.Differencesthe greatest differences between legal education in common law and civil law system appears in the manner in which the student is initiated into the study of lawCivil Lawa. Legal education was the province of the universities.b. The student typically spends the first days of law school reading cases and having his or her attention directed over and over again to their precise facts.(the civil law beginner is kept at a certain distance from the facts of particular cases.)c. No legal practiced. Typically the professor lectures with the class.Common Lawa. Legal education from early times was in the hands of the bar.b. The student is provided at the outside with a systematic overview of the framework of the entire legal system.(the common law student is taught to mistrust generalization and is expected to ferret out individually whatever patterns and structure are there to be found)c. Legal Practice for 2 yearsd. The professor engages in discussion with the class.Conclusion(3-5句话)(如果不是大题要总结的可以把它归为各自的不同点里)In recent years, to lessen these contracts, both civil law and common law schools are seeking a better balance between theory and practice. Common law professors increasingly consider the case method only one of several useful pedagogical devices. While civil law faculties have come to recognize the importance of practical work, tutorials and small classes.European Union Law 书P304-309 Definition: European Union law(historically called European Community law) is a body of treaties, law and court judgements which operates alongside the legal systems of the European Unions member states. It has direct effect within the EUs member states and, where conflict occurs, takes precedence over national law.Sources: (3个)a. Treaties b. Legislationc. Court decisionsThere are 3 general categories of sources of law in European Union will be mentioned below:1. Treaties The first and foremost in authority is primary legislation, or called treaties, created by governments from all EU Member States acting by consensus. This includes the founding Treaties of the EU, such as the ECSC Treaty of 1951, the EEC Treaty of 1957. Also, the various protocols, amendments, additions and annexes attached to these Treaties are also considered a source of primary legislation.2. LegislationSecondary legislation, which is subordinate in authority to primary legislation but much more common as a source of community norms, includes the body of law made by EU institutions acting within the scope of the Treaties. All EU legislation must be based on a specific Treaty article, which is referred to as its legal basis.(But the treaties havent established any single body as a legislature. Instead legislative power is spread out among the Institutions of European Union, although the principle actors are the Council of the European Union (or Council of Ministers), the European Parliament and the European Commission.)-立法机构方面Union legislation falls into 2 types: directives and regulations. a. Directives set objectives but leave the implementation to the EUs member states.b. Regulations are directly applicable to member states and take effect without the need for implementing measures. In this way, regulations do not need to be transformed into domestic law. Art.249 of the EC treaty states that “a regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.” c. Other legal acts include decisions and recommendations and opinions.3. Court decisionsCourt decisions are and additional important source of law in the EU. They are applicable to the parties before the European Court of Justice (ECJ), to the ref