Civil law'' i ''common law'': Dva različita puta do istoga cilja (original) (raw)
2001, Poredbeno Pomorsko Pravo
This paper will not deal with theoretical examination of differences between the common law and the civil law, but will focus rather on various distinctive features of civil law and common law, with several illustrations of resulting differences in both substantive law and procedural law. There is a great num6er of these differences and all of them, of course, cannot be dealt withln a short study of limited scope as this one. Even the books on comparative law which havl extensively examined the differences between the civil law and the common law could not cover all those differences.'Any attempt to make a selection of differences between the civil law and the common law on the basis of their importance would be difficult. Hence, this paper will review only several typical elamples of differences between the civil law and the common law, both in substantive law and civil procedure. These differences will not be examined in detail as they should serve only as illustration of those differences. The scope of this paper will be mainly focused on the civil law issues and will not deal with other areas of law In order to emphasize distinctive features of common law system and civil law system, some important differences which exist within these two "families" (e.g. differences between American and English law, or differences between French and German law) will not be examined and it will be assumed that all common law systems are alike in essential respects, and that all civil law systems are also alike in essential respects.2 The papei will not enter into polemic as to which legal system is better and what are the advantages of common law or of civil law The purpose of this short study is simply to highlight some of the main conceptual differences between common law and civil law systems, and to explore the possibilities of reconciling of some of those differences. II. CIVIL LAW AND COMMON LAW COMPARED Notion of Civil Law Civil law has its origin in Roman law, as codified in the Corpus Iuris Civilis of Justinian. Under this influence, in the ensuing period the civil law has been K. ZWEIGERT & H. KOTZ, INTRODUCION IO COMPARATM LAW (3rd Ed. Clarendon
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