The Influences of Common Law on the Brazilian New Code of Civil Procedure

2018 ◽  
Author(s):  
Lucas Alves Edmundo Gomes
Keyword(s):  
Common Law ◽  
Civil Procedure

The Africanisation Of South African Civil Procedure: The Way Forward

2020 ◽  
Vol 6 (1) ◽  
Author(s):  
Fawzia Cassim ◽  
Nomulelo Queen Mabeka
Keyword(s):  
Common Law ◽  
Civil Procedure ◽  
African Culture ◽  
Legal Proceedings ◽  
Seventeenth Amendment ◽  
Procedural Law ◽  
Lower Courts ◽  
The Law ◽  
Court Proceedings ◽  
The Impact

Civil procedure enforces the rules and provisions of civil law.  The law of civil procedure involves the issuing, service and filing of documents to initiate court proceedings in the superior courts and lower courts. Indeed, notice of legal proceedings is given to every person to ensure compliance with the audi alteram partem maxim (“hear the other side”). There are various rules and legislation that regulate these court proceedings such as inter alia, the Superior Courts Act, 2013, Uniform Rules of Court, Constitution Seventeenth Amendment Act, 2012 and the Magistrates’ Courts Act of 1944. The rules of court are binding on a court by virtue of their nature.  The purpose of these rules is to facilitate inexpensive and efficient legislation. However, civil procedure does not only depend on statutory provisions and the rules of court.  Common law also plays a role. Superior Courts are said to exercise inherent jurisdiction in that its jurisdiction is derived from common law.  It is noteworthy that whilst our rules of court and statutes are largely based on the English law, Roman-Dutch law also has an impact on our procedural law. The question thus arises, how can our law of civil procedure transform to accommodate elements of Africanisation as we are part and parcel of the African continent/diaspora? In this regard, the article examines the origins of Western-based civil procedure, our formal court systems, the impact of the Constitution on traditional civil procedure, the use of dispute resolution mechanisms in Western legal systems and African culture, an overview of the Traditional Courts Bill of 2012 and the advent of the Traditional Courts Bill of 2017. The article also examines how the contentious Traditional Courts Bills of 2012 and 2017 will transform or complement the law of civil procedure and apply in practice once it is passed into law.

scholarly journals COMMON LAW PLEADINGS IN CIVIL PROCEDURE OF THE USA

2018 ◽  
Vol 4 (4) ◽  
pp. 1-1 ◽  
Author(s):  
Дмитрий Князев ◽  
Dmitriy Knyazev
Keyword(s):  
Common Law ◽  
Civil Procedure ◽  
The Usa

Inherent Jurisdiction and the Limits of Civil Procedure

2020 ◽  
pp. 269-290
Author(s):  
Stuart Sime
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
Civil Procedure ◽  
England And Wales ◽  
High Court ◽  
The Rule Of Law ◽  
Procedural Law

This chapter considers the modern scope and limitations on the use of the court’s inherent jurisdiction in common law jurisdictions. It considers the underlying juridical basis for the jurisdiction, and the underlying theories, namely that residuary powers were vested in the High Court in England and Wales by the Judicature Acts, and that all courts have inherent powers to prevent abuse of process. It considers the ramifications of the distinction between inherent jurisdiction and inherent powers. Changes in the legal landscape since the seminal articles by Master Jacob and Professor Dockray, including the codification of civil procedure in many common law jurisdictions, and modern understanding of the rule of law and the separation of powers, are considered. It is argued that while existing applications of the inherent jurisdiction should be retained, it is no longer acceptable for the English High Court, and equivalent courts in other jurisdictions, to generate new procedural law by resorting to the inherent jurisdiction.

The Statutorification of Common-Law Fields

2019 ◽  
pp. 212-290
Author(s):  
G. Edward White
Keyword(s):  
World War I ◽  
Criminal Law ◽  
Common Law ◽  
Legal Education ◽  
Legal Profession ◽  
Civil Procedure ◽  
World War ◽  
Commercial Law ◽  
The 1960S

This chapter describes the process, over an interval between the years after World War I and the 1960s, in which most of the fields considered “basic” common-law subjects in legal education and the legal profession were dramatically affected by statutory developments that sought to modify common-law rules and doctrines in the fields. By the 1960s the “statutorification” of torts, contracts, commercial law, and criminal law was partially in place, and new rules for federal civil procedure had been promulgated.

scholarly journals Comparative Study of Civil Procedure in Common Law and Civil Law Systems

2016 ◽  
Vol 9 (5) ◽  
pp. 267
Author(s):  
Nader Ghanbari ◽  
Hassan Mohseni ◽  
Dawood Nassiran
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Judicial System ◽  
Specific Method ◽  
Legal Systems ◽  
Separate Branch ◽  
The Common ◽  
The Comparative Study

Comparing the legal systems is a specific method in which due to its important function is considered as a separate branch in law. None of the branches in law can place its knowledge merely on ideas and findings within the national borders. Several basic objections have been given regarding the definition and purpose of comparative study in civil procedure. In addition there are specific problems regarding studying practically the similar systems in a legal system like differences in purpose, definition and concept. In different legal systems like civil law and common law systems in which there is a divergence, even the judicial system`s organs and judges` appointment and judicial formalism are different, which add to the problems of the comparative study. Reviewing these differences could lead to a better understanding of these legal systems and recognizing the common principles in making use of each other`s findings considering these differences and indicate the obstacles of comparative study in this regard.

scholarly journals Realization of res judicata principle in civil proceedings: the experience of foreign countries

2020 ◽  
pp. 220-225
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Legal Certainty ◽  
Res Judicata ◽  
Foreign Countries ◽  
Negative Effect ◽  
The Subject

  The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary.  The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved. It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties. In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.

scholarly journals SIDE-EFFECTS OF THE GROWING TREND TOWARDS THE INSTITUTIONALIZATION OF MEDIATION

2018 ◽  
Vol 1 (1) ◽  
pp. 187-221
Author(s):  
Humberto Dalla Pinho
Keyword(s):  
United States ◽  
European Union ◽  
Alternative Dispute Resolution ◽  
Common Law ◽  
The United States ◽  
Civil Procedure ◽  
Access To Justice ◽  
The European Union ◽  
Mortgage Crisis ◽  
And Diffusion

For some time, Europe, Brazil and the United States have been suffering from the systemic inefficiency of their Courts, with a significant impact on the guarantee of access to justice for their citizens, making alternative dispute resolution (A.D.R.) a constant presence in both civil and common law systems of jurisdiction. The upshot has been the institutionalization of ADRs, taking the form of a routine presence in codes of civil procedure, while their practice is connected to the courts. However, both institutionalization and the obligation to take part in mediation programs before or after starting the suit are exceptional measures, which must be adopted with caution. The experience of the European Union with its Directive, the Brazilian experience of inserting mediation into the project for the new Code of Civil Procedure and the use of mediation to overcome the conflicts arising from the serious mortgage crisis in the U.S.A. will be analyzed in this article, seeking to demonstrate that the progress and diffusion of ADRs does not necessarily entail a breach with their underlying foundation, and particularly with regard to mediation, the loss of its identity, for it to be inserted into the context of access to justice.

Part VI Providing and Obtaining Assistance, B Obtaining Assistance, 21 Judicial Cooperation Including Obtaining Evidence

2017 ◽  
Author(s):  
Peddie Jonathan
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Large Degree ◽  
Civil Procedure ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
Evidence Gathering ◽  
Criminal Matters ◽  
Over Time

This chapter argues that there is potential for conflict between common and civil law jurisdictions where the approach to preparation for trial, and through that the taking of evidence, differ to a large degree. In common law jurisdictions, where it is usual for private parties to be proactively involved in the evidence gathering process, it will not seem irregular for evidence to be taken by an agent of a foreign court for the purpose of proceedings on foot in that court. Such an approach may, however, offend the rules of civil law jurisdictions, where the obtaining of evidence, at least in criminal matters, is primarily the role of the judiciary. To address this potential for conflict, a number of pieces of legislation and bilateral and multilateral civil procedure conventions have evolved over time to facilitate official intervention in order to obtain cross-jurisdictional assistance in the gathering of evidence for the purpose of both civil and criminal proceedings. The various ways in which assistance may be sought by or obtained from the English courts are explored in this chapter.

Access to Information and Evidence

2021 ◽  
pp. 136-173
Author(s):  
European Law
Keyword(s):  
European Union ◽  
Common Law ◽  
Civil Law ◽  
Relevant Information ◽  
Civil Procedure ◽  
Access To Justice ◽  
Access To Information ◽  
The European Union ◽  
The Common ◽  
Law Of Evidence

This chapter explores the provision and testing of evidence, which is central to civil procedure. Effective access to information and evidence are basic tools that ensure access to justice is a real rather than a merely theoretical right. There is a great deal of variety across European jurisdictions in respect of the approach taken to evidence-taking, and particularly to access to relevant information. This is a consequence of a variety of factors: the distinction between the civil law/common law; legal history; and procedural culture, and particularly the distribution of roles between the court, judiciary, and parties. This divergence in approaches to evidence may be the source of difficulties in cross-border litigation. The chapter identifies the common core of the law of evidence and the best, or more convenient, rules, including those related to the management of evidence, in use in European jurisdictions. To do so, it looks at the ALI/UNIDROIT Principles, the IBA Rules of Evidence and of legal instruments addressing the issue of evidence and access to information within the European Union.

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