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The Differences Between Criminal And Civil Procedure Law Essay

Law and Legal Systems have always been an important part of every society, moreover, they help us take care of conflicts, punish individuals who violate the law, and solve problems. Our society cannot cope with people behavior, violence and unstoppable desire to have whatever, whenever and wherever. In this case, John Locke said that all people are cruel and they need superior entity to control them and that is why he offered to create a contract called social contract to get peace because society need legislation, however that was not ideal contract, it was unwritten. Thus, we need to look deeper into law in general, its history and all branches which it includes. Obviously, I should mention general definition of law which is a system of general rules which are stated by government and accepted by all people to regulate their behavior and people should obey and follow these rules to protect themselves. [1] 

As our president Islam Karimov said “There is no future without knowing history”. Consequently, we need to know at least general information about history, not only, in terms of developing Law and Legal systems, but also in every aspects of our life, to be able to distinguish difference between branches of law. There are three major legal systems in the world which is Civil law, Common law and Religious law.

Common and Continental law legal system

Civil law, also known as Continental European law, nowadays is deeply used in European and Latin American countries and elsewhere. However, to understand Civil law legal system better, we need to commence in antiquity, as Civil Law has its basement in Rome. According to the book “A primer on the Civil law system”, in ancient Roman legal system, they had persons called Jurists, they were not only, judges, but also, persons who “learned in the law” or in other words, legal experts. Their later written works made fundamental contributions to the development of the Roman legal system and had an important influence on history. History of Civil law is very rich and to understand in depth modern civil law, probably need to look into history from the Roman Empire to the recent days.

Continental law tries to solve non-criminal cases, divorce, child custody, property ownership, damage of property, etc. The main feature in Continental Law is that laws are written into a collection, codified, and not determined as in common law, by judges. (Wikipedia, Civil law (legal system), 10 March 2010)

Common law is used in England and in countries colonized by England. The common law was a product of three English courts- King’s Bench, Exchequer, and the Court of Common Pleas; moreover they created a distinctive body of doctrine. [2] The typical characteristic of Common law is that it reflects the law of the courts as expressed in judicial decisions. The judge makes decisions in precedent provided by previous decisions, in comparison to the civil law legal system, which is based on statutes and prescribed texts. The other feature of common law is a trial with participation of jury and the doctrine of the supremacy of the law. (http://www.infoplease.com/ce6/society/A0857483.html, March 14, 2010)

Therefore, the main difference between Civil and Common law is sources of law. In other words, on the basis of common law is case which means all decisions are made by judges on a case by case basis. And civil law system uses codified body of general principles which control the exercise of judicial discretion and applied to all cases such as statute or constitution. One more difference between Continental and Common law is that, one of them uses adversarial system and the other-inquisitorial. So, we can determine inquisitorial system as a legal system in which the court is proactively involved in defining the facts of the case. Therefore, this is the difference of inquisitorial system from adversarial where the defence and prosecution are acting independently to deliver their case. [3] 

Private and Public law

Civil law is divided into two branches, Private law and Public law. So, private law is concerned with the rights and duties of individuals towards each other. [4] Private law deals with Civil law, Contracts, Labour Law, Corporations, Family law, etc. Individuals who are having deal with Private law, can be either physical person or legal entity [5] . However, sometimes, Labour law, social security and other various topics could be referred as “mixed” public and private areas.

Public law, on the other hand, solves problems between governmental bodies or between government and physical person or legal entity. This involves relations between private citizens or organizations and the government, thus which means Public law deals with Criminal law, Constitutional law, Administrative law and Taxation. So, this is the main difference between Public and Private law that Public law concerns with the problems between government and individuals whereas Private law concerns with cases individuals between individuals.

Civil and Criminal procedures

Why do we need procedures? A procedural system helps apply substantive law to real disputes and a good procedural system gives guidance to information which is received by judge or jury. Moreover, it helps to present this information in an appropriate way and so on. In other words, good procedure makes sure that similar cases will be treated similarly, by the court. [6] Civil procedure consists of the rules by which courts conduct civil trials (http://topics.law.cornell.edu/wex/civil_procedure, 2010). Also, we need to distinguish substantive law from procedure itself, which includes contract law, tort law, etc. So, substantive law determines the rights and duties of everyday conduct. So, civil procedure, generally deals with non criminal cases which means cases ended with paying fine by one party to the other. Other civil remedies include restitution or transfer of property, or an injunction to restrain or order certain actions [7] . Also, civil procedure concerns relationships between two or more people who can be physical persons, legal entity or government. This may be considered as the main difference between Civil and Criminal procedure, because criminal procedure takes an action between State and individuals. The punishment for committing crime could be paying fine, probation or imprisoning to jail, because it is important for government to protect peaceful life of their people. The usual criminal process in civil law system divided into three main phases: investigation, examination and the trial. At investigation stage public prosecutor collects evidence and decides whether it is reliable or not. Typically, examining phase is writing part where judge check all written records and decides whether should this particular case goes to trial. At the trial stage defendant can be questioned. Due to examining phase, trial itself differs immensely from a common law criminal procedure, probably because the record is already taken and equally available to both prosecutor and defendant before the trial. [8] 

Conclusion

To sum up, I want to say that it is really important to differentiate law and its branches because they differ from each other with their sources, proceeding systems, etc. We should understand that law is a huge science and has a lot of offsets which are as important as law itself. For example, three main law legal systems- Common, Civil and Religious legal systems. Civil law itself also have branches- Private and Public law, while into these systems, there are also other sub systems such as adversarial and inquisitorial systems. So, taking everything into consideration, I can conclude that people all over the world need law, i.e. supreme State which would control people’s behavior and keep peace in the country.

Bibliography

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Common law: Characteristic features of Common law [Internet], Common law. Available from http://www.infoplease.com/ce6/society/A0857483.html [Accessed 14 March 2010].

Laval, K. (2007) Legal systems: Common law vs. Civil law [Internet], Legal systems. Available from http://lgsg.wetpaint.com/page/Legal+Systems:+Common+Law+vs+Civil+Law [Accessed 14 March 2010].

Civics library (2006) What is civil law [Internet], what is civil law. Available from http://members.mobar.org/civics/WhatisCivilLaw.htm [Accessed 10 March 2010].

Wikipedia (2009) Civil Law [Internet], Civil law. Available from http://en.wikipedia.org/wiki/Civil_law_(area) [Accessed 9 March 2010].

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Wikipedia (2010) Civil procedure [Internet], civil procedure. Available from http://en.wikipedia.org/wiki/Civil_procedure [Accessed 14 March 2010].

Apple, J.G. and Deyling, R.P., A primer on the Civil-law system: the history and development of civil law [Internet], the history and development of civil law. Available from http://www.google.co.uz/url?sa=t&source=web&ct=res&cd=3&ved=0CBsQFjAC&url=http%3A%2F%2Fwww.fjc.gov%2Fpublic%2Fpdf.nsf%2Flookup%2FCivilLaw.pdf%2F%24file%2FCivilLaw.pdf&rct=j&q=civil+law+system&ei=WLycS_yjCM_14AaL_sB2&usg=AFQjCNENtPYqke3xlDh--_c1n4mz3E7fpw [Accessed 10 March 2010].

Apple, J.G. and Deyling, R.P., A primer on the Civil-law system: The legal process [Internet], the legal process. Available from http://www.google.co.uz/url?sa=t&source=web&ct=res&cd=3&ved=0CBsQFjAC&url=http%3A%2F%2Fwww.fjc.gov%2Fpublic%2Fpdf.nsf%2Flookup%2FCivilLaw.pdf%2F%24file%2FCivilLaw.pdf&rct=j&q=civil+law+system&ei=WLycS_yjCM_14AaL_sB2&usg=AFQjCNENtPYqke3xlDh--_c1n4mz3E7fpw [Accessed 11 March 2010].

Law essays UK: Inquisitorial and Adversarial systems [Internet], Inquisitorial and adversarial systems. Available from http://www.law-essays-uk.com/free-essays/inquisitorial-system-of-criminal-justice.php [Accessed 17 March, 2010].

Wikipedia (2010) Inquisitorial system [Internet], Inquisitorial system. Available from http://en.wikipedia.org/wiki/Inquisitorial_system [Accessed 17 March, 2010].

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