Comparative civil procedure
刘春
【关键词】比较法
民事诉讼法 两大法系
【全文】
Beijing Fangyuan Law Firm
Since Common Law and Civil Law are two distinguished different legal systems, there are an immense number of books and articles address the differences between civil procedures in these two legal systems. Nevertheless, it is novel to address the differences from the point of which are important for legal practice. It is interesting and useful for practice lawyer to focus on this topic, which can help the lawyers to keep their foreign clients as well as attract similar clients. In this paper, I will general speak the different civil procedures of the two legal systems first, then point out two differences which I think to be particularly important for legal practice, and I will explain their relevance for international legal practice in the end.
I. The different civil procedure of common law and civil law.
There are many differences between civil law legal system and common law system in the area of civil procedure. Just like what professor David Gerbersaid, some of the differences are: ①The manner of trial is distinguished. Just like people have defined, the distinct difference is that civil procedure in civil law is inquisitorial, while the civil procedure in common law is adversarial. Interrogatory in American is impossible for the judge cannot do that.②Deference in discovery. During discovery procedure in the United States, the judge does not judge what is good or not, while in civil law system after commencement, it does not cost a lot but the judge can reject some issue during discovery.③Another significant difference is that the way towards witness is different. American lawyers are high quality towards the witness, and the judge cannot bring witness without any party’s offering. While the German lawyers have limited power towards the witness. In German, the parties offer witness. The judge brings in the witness and asks the witness to tell the story to the court, but the lawyer cannot ask the witness only the judge can do that. The American lawyers cannot believe it. Because in American, the lawyers are totally free to ask the witness. ④Whether has jury or not is poles asunder.There is no jury in civil law civil procedure, while jury is a characteristic of common law. In civil law system, people cannot believe a group of nonprofessional persons have the competence to handle the complex legal issues otherwise it does not need law students spend too much time on studying law in school. While in the United States, the Constitution provides that any case which the amount of dispute exceeds $20 may be judged by jury. We can find that trail by jury is a constitutional issue. Thus clearly demonstrates that jury is a critical point in the trail in American. ⑤In the two legal system, the status of the experts witness are different. In American, both parties pay for his own experts, and the experts speak what the part need them to say. But in German, the experts are chosen by the court, the experts’ opinion can be adopted as evidence by the court directly. ⑥A very noteworthy difference is about the appeal.
