PHILOSOPHY AND CIVIL LAW
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The most obvious difference between civil law and the common law system is that the civil law system is a codified system, followed by legislation covering this area, while common law is based mainly on case law. The basic principle that applies is that earlier court decisions, usually of higher courts, made in a similar case, should be followed in later cases, ie that precedents should be respected. The paper points out that in civil law the main principles and rules are contained in the text of the law, while case law is only a secondary source of law. On the other hand, common law is predominantly based on court decisions already made. Civil law is based on the application of the law, and common law on the creation of rights. Courts in the civil law system resolve specific cases by applying and interpreting legal norms, while in common law courts, while resolving disputes, and also provide guidance on how similar disputes should be resolved in the future, so that court decisions create legislation.
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Abstract This chapter has two aims. The first is to provide a brief historical introduction to mental capacity law and adult guardianship law. The second is to compare and contrast how these laws operate in states within the common law tradition, which originated in England, with their operation in civil law countries, where the laws were derived from Roman law.
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The Draft of Qing Dynasty’s Civil Law,mand at the end of Qing Dynasty,is called The First Draft of Civil Law.It firstly breaks down the old systems,such as united systems,inseperation of civil and criminal laws.It is the beginning of Civil Law code,which provides naional goverment with the basis of making civil law.In the process of making it,not only does it recommend a large number of modern western principles and systems,but also remains chinese traditional systems and embodies fully the conflict of Traditional Law and Import Law.
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The author cites seven points of false revision in thesis on ruling by of Tao Xijin's Collected Works,which discusses exposion of Tao Xijin about Law and Private Law,and sums up law of revising.Firstly,all points involving guiding principle of civil law,which stated as to rinciple of law,but not law,are altered into argument of the principle of law with law.Secondly,all points involving nature of civil law,such as our civil law belongs to rinciple of law,but not law,are changed into statements of our civil law not only belongs to law,but also law,or socialist civil law doesn' t belong to pure law,or cut out.Thirdly,there are two points deleted in Tao Xijin's Collected Works,which quoted Lenin's discussion on public and private law.From all aspects of arguments,expound and prove of Tao Xijin's statements on public and private law,as a result of textual research,the author puts forward arguments,such as Tao Xijin didn't,and impossily reduce view of combining law with law,and view of our civil law not only belongs to law,but also law,and so on.And restore Tao Xijin's view of Public nature of civil law.
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In this chapter, the author studies Scheid's reconstruction from the point of view of Roman law. First, he deals with the comparison of noxae deditio in sacred, civil, and international law. Then, he compares Scaevola's regula on impiety with a responsum that the same Scaevola gave in a (civil law) case of unlawful damage. The central question in this contribution is the extent to which pontifical law was connected with civil law. According to Scheid, they had enough in common to allow reconstructing procedures of pontifical law with the help of civil law procedures. This chapter concludes by saying be that there is only a parallel in procedures in a non-technical sense. In the Roman republic, sacred law and civil law were closely linked because they were created and interpreted by the same persons using the same methods. Keywords:civil law; international law; pontifical law; sacred law; Scheid
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Error system involves many conflicts of interests,legislator should balance the conflict of interests when designing related rules of error.Civil law of civil law system adopts and develops the rules of error of the Roman law,but has different models of legislative act in the balance of interests.The relative rules of gross misunderstanding in our civil law actually is the content of the error of civil law system,but gross misunderstanding of our civil law has the disadvantage of unbalance in interests evaluation.
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