Differences between American Law and China Law

China law belongs to the civil law system (controversial); American law belongs to the common law system, hehe, that's all I know, Khan, I'm sorry. ......

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Continental law system and Anglo-American law system are two major legal systems in the world today, covering some major countries in the world. The representatives of civil law system are German, French and China. Anglo-American legal system is of course represented by Britain and America. The comparison of differences between civil law system and common law system has always been a hot topic for comparative jurists. There are great differences between the two legal systems in many aspects, and I only compare them from the aspects of litigation procedures.

For a long time, comparative jurists tend to assume that similar needs are always met in a similar way in all developed legal systems in the world. [1] However, the huge differences in litigation procedures between civil law system and common law system break this assumption. Such as the preparation and conduct of summary civil litigation, the way to state the facts to the court, the way to choose or ask witnesses or experts, etc. , all make this assumption untenable. There are so many differences between the two legal systems, which are influenced by many reasons, such as regional differences, national habits, cultural characteristics, historical traditions and so on. But I think the main reason is the influence of ideology and cultural tradition. The thinking habits of the two legal systems are different in many aspects, which has created great differences between the two legal systems.

As a matter of fact, many characteristics of the proceedings in the Anglo-American legal system are caused by a decisive fact, that is, the proceedings originated from the jury system. Nowadays, it is generally believed that the jury system is only used in criminal cases in Britain, and only when the defendant claims that he is "innocent" in a serious crime. [2] Nevertheless, the tradition of jury system still permeates the civil litigation in Britain. The influence of the jury system has led to many specific proceedings in civil and criminal trials. [3] This also makes its litigation procedure different from that of civil law countries.

In the civil law system, litigation can be divided into multiple trials at intervals. Therefore, for the unexpected opinions or evidence put forward by one party in court, the other party can have enough time to present further evidence to refute it in the next trial. However, in the common law system, it is quite different. Because it is a one-time trial, in order to prevent the same thing from happening, lawyers should not only think clearly about their own arguments and evidence, but also understand the arguments and evidence of the other side. Because in the trials of common law countries, if unexpected evidence appears, neither party can easily ask for an adjournment. This makes it necessary for the lawyer to meet his witnesses before the trial to know what they will say and do in court. For this kind of behavior, German lawyers think it is against professional ethics. [4] It is not difficult to imagine why lawsuits in common law countries often have unexpected results, and why lawyers who can make love in court are always respected. However, the trial in civil law countries always gives people a step-by-step feeling, which is not exciting enough, so it is difficult for lawyers to have a very exciting performance.

Since common law countries adopt the mode of one-time trial, what is the role of judges? Before the trial began, the lawyers made careful preparations, but the judge was extremely unclear about the controversial issues and related evidence. It is believed that judges rely on lawyers to provide all the necessary facts and laws through oral statements. [5] As we all know, in the courts of common law countries, lawyers independently decide which witnesses to call and ask. Every witness was questioned by one party and then by the other. Questioning witnesses is also the embodiment of lawyers' wisdom. Good lawyers can often make the testimony of opposing witnesses unreliable and unacceptable to judges or juries, thus losing the effectiveness of evidence.

Lawyers question witnesses, and judges generally only pay attention to the testimony of witnesses. When a judge speaks, it is usually only a judgmental statement such as "valid objection" or "invalid objection" to decide whether the questions of the parties can be adopted. Judges in common law countries can ask witnesses, but in order to avoid being involved in conflicts and remain neutral, they often ask fewer questions. There was a case that explained the wisdom of the judge from the opposite side, that is, "Jones v. National Coal Commission": the judge asked too many questions in the first instance of the case, which caused both parties to fail to present evidence in the best way they thought, and the Court of Appeal only sent the case back to the lower court for retrial on this basis. [6] This case also illustrates the principle of "procedure is superior to rights" in the common law system.

Judges in Britain and America are passive everywhere in the trial. They knew nothing about the case at the beginning and had to know it during the trial, so the parties and their lawyers must play a major role. This is mainly because, in common law countries, it is generally believed that the best way to obtain the real situation in the court trial process is to let the parties debate the real situation, and the judge only acts as the supervisor of the court rules, that is, "confrontational" litigation. But in civil law countries, the situation is just the opposite. They believe that if judges can play a greater role, it may be more conducive to discovering the real situation. Therefore, the judge has the obligation to ask questions, inform, encourage and persuade the parties, lawyers and witnesses, so as to obtain all the true information from them and avoid the parties losing the case. Civil trials in civil law countries still have some "inquisitive" nature and some bureaucratic characteristics. [7] The court is the main body of litigation and evidence investigation, and the judge presides over the court trial as an active judge. In the United States, the litigation procedure of "adversary system" is very strict. This is mainly because, as long as it is a common law request rather than an equitable request, there is still a jury in the trial stage of civil litigation.