Essay: Civil Law Vs Common Law - Lessons For Vietnam.

Key Differences Between Civil Law and Common Law System

The majority of the countries in the present-day follow one of the two key legal traditions in their jurisdictions, i.e., the common law system or the civil law system. In England, the common law system was first developed in the Middle Ages. It was used in British colonies all across the world during this time period. The civil law tradition began virtually at the same period in continental Europe and spread to European imperial powerhouses such as Portugal and Spain. Many countries that had previously followed a distinct legal history, such as Japan and Russia, began adopting civil law systems in the late 19th century or early 20th century in order to gain political and economic strength as compared to western European nations.

Even in the present day, the legal systems across different nations are divided majorly between the two systems. The key set of differences between these two systems is that the common law based nations give prime significance to the court rulings, while the civil law based nations give prime significance to codified legislation. However, these distinctions are often not very apparent and there is noted the use of a combination of the two systems in different jurisdictions.

The following discussion covers an analysis and comparison of the civil law tradition and the common law tradition, particularly from the perspective of lessons for Vietnam.

Lesson for Vietnam

On September 30th, 1945, Vietnam gained its independence from the United States, and since then the business has established a civil law-based communist legal system. In addition, the Marxist-Leninist philosophy has had an influence on the way this was written. These precise features are covered by the current legal system in Vietnam. The first is that the legislation is deemed as the main and most significant source of law. The second is that the courts act as subordinate to the drafted legislation, to legislation and have to make all the decisions on the basis of drafted legislation. Lastly, the communist Party set policies that can result in key changes in the legislation in the nature in future, as this is the only political party in the nation.

The legal system of Vietnam is based on three key elements. The first is the legal norms that act out as the elementary unit of the system. The next is the legal classes, which are the lawful norms that cover the same features and also regulate the correlative social relations group, and the last are the legal branches, which are the system of legal norms, which cover the same speciality that governs social relations of a specific area of society. There are different legal branches in the Vietnamese law system and these include the branches of land laws, financial laws, banking laws, administrative laws, labour laws, economic laws, criminal laws, civil laws, and constitutional laws.

Vietnam is deemed to be in the middle of judicial and legal reforms since the nation has made attempts toward the construction of a proper framework for success market-based economy. There are high chances that the legal system is evolving for complementing a market economy, which has brought forth an added degree of unpredictability, as there is a degree of legal transplantation involved. The legal rules in Vietnam have been imported from the civil and common law systems, which has essentially changed the country's legal system and has also blurred the earlier set of clear structural lines.

Legal System of Vietnam

There have been plans of the Government of Vietnam to transplant the common law approaches with regard to precedent, as an answer to fill the gap that is created. These gaps were created owing to the reliance placed in this jurisdiction on the sources of law that have a traditional legislative origin, in terms of the laws, ordinances, circulars, codes, resolutions, and decrees, where the customary laws and precedents were not recognized in an official manner. There has been a wide criticism received in the manner in which the law is applied in Vietnam for not being effective, consistent and uniform. With the absence of proper legal interpretation, deficiency in legislation and uncertainty itself present as the shorts of the legal system. The judicial precedents, as is the typical source of law, under the common law system, are deemed to have the merits which make the legal systems stable, certain and predictable. Hence, the strengths of precents can possibly bring stability and certainty that is often absent in the legislation.

Now that the need for clarity has been attained regarding the clashes or problems surrounding the two systems, a context is established with regard to these systems in the context of Vietnam. There is now a need to get into the base of the two systems, to see how they vary and where the similarities between the two systems lie.

In a civil law system, there is usually a written constitution, which is based on certain codes. These enshrine the basic rights and duties through codified documents. The countries, which follow a civil law system, have a comprehensive set of legal codes, which are continuously updated. These codes detail all the matters that can be bright before the court of law, for following the proper processes, and for deciding on the proper punishment for the defined offences. The codes set in this regard help in differentiating between the diverse categorizations of law. For instance, substantive law covers such acts that are subjected to civil or criminal prosecution. The procedural laws cover the manner in which a specific action would be determined or would constitute to be a criminal act. In addition, the penal laws cover the proper penalisation for such acts. The role of the judges in a civil law system is to check the facts of the case and apply the provisions that are applicable basis the set codes. There are cases where the judges usually bring formal charges, investigate the matter at hand, and also decide on the case that is set within a framework, which again is set through a codified set of laws that is comprehensive in nature. The decision of the judges is less crucial thus, in terms of shaping civil law, in comparison to that of the decisions made by the legal scholars and legislators who are responsible for drafting these codes and for their interpretation.

A common law system is an uncodified system. In other words, there is an absence of a comprehensive compilation of lawful statutes and rules. However, there is reliance on some of the scattered statutes under common law, which predominantly are the legislative decisions taken basis, the set precedents. To put it simply, these are based on the judicial decisions, which have already been undertaken in cases, which are similar in nature. The referred precedents in such matters are the ones, which have been maintained over time, be it through the records of the courts, or through the historical documents of case law collections, often referred to as the yearbooks and the reports. The precedents that become applicable to the new case decisions are determined on the basis of the understanding of the presiding judge. Thus, the judges take centre stage in shaping the common law systems. The common law functions essentially act out as an adversarial system, whereby the two opposing parties come before a judge, who then moderates the case, and decide on the contest between the two parties. There is a jury of common individuals, who decide on the facts of the case, without any legal training. After this, the judge decides the proper sentence on the basis of the verdict of the jury.

Legal Reforms in Vietnam

Even though there is a similarity between the two legal systems, there are also points of difference between the two systems. Hence, it becomes crucial to compare the two approaches, to get better clarity regarding the common law and civil law traditions. When it comes to the approaches regarding the legal process in the two systems, there are fundamental differences between two systems. The main rules and concepts under the civil law system are written in form of statutes and legislation that become applicable by the courts. Hence, the main or the ruling aspect under such a system acts out to be legislation and codes, while the precedents act out as the secondary sources of law. Conversely, in the context of the common law system, there is a high reliance on precedents and they act out as the primary source of law. There is often little regard given to the conceptual structure in such a system.

When it comes to the civil law system, the ideology is based on the separation of power. This means that there are three separate aspects, i.e. executive, legislative and judiciary. The role of the legislative body is to legislate or create the laws that will be applicable in any jurisdiction. The next aspect is the executive, which has the responsibility of implementing the laws that have been created by the legislative branch. Lastly, there is the judiciary, which has the role of ensuring that where the laws are not followed, corrective actions in terms of punishment are taken so as to ensure that the role of the legislative and executive branches is not laid waste. Thus, the role of the court is restricted to the implementation of the laws that have already been created by the legislative branch. On the other hand, under the common law systems, there is no such separation of power. And as a result of this, the courts take centre stage in the creation of the law and its implementation as well. Even the manner, in which a case is approached by the lawyers, differs in the two systems. As civil law is based on the codes, which cover logical linkage to the regulations and concepts, the start has to be with the main principles and have to progress to the specific laws. As a civil lawyer, the situation should thus start with establishing a legal standard that is covered under the legislation, and the conclusions in a specific situation are deduced basis that. On the other hand, under the common law system, the start is with the comparison of cases, where the legal concerns that are the same or comparable in nature are looked at, as have been earlier dealt with by the courts, set out in form of precedents. Essentially, the binding law or the rule is taken from the induction of such pertinent precedents. Thus, the main differences between the two systems in terms of the approach of attorneys, which in the civil law system tends to be more on the intellectual aspects, while the ones in common law tend to be more on the practical aspects.

Challenges Faced by Vietnam's Legal System

Under the civil law system, the main task of the court is to decide the case based on the application and interpretation of the established laws. On the other hand, the common law systems cover the courts not only deciding on the dispute brought to them by the parties but also providing the necessary guidance regarding the manner in which a similar dispute of such kind would have to be dealt with in the future. The interpretation of the legislation done by a higher court becomes applicable to the lower courts and the decision of the court continues to act as the founding stone for the interpretation of legislation under the common law. Under the common law system, the contract does not have a binding effect till the time the same is backed by a proper value of consideration. As per the rules set out regarding consideration in the common law, the contract needs to have something of law, be it in terms of a price or product or a promise to do something. On the other hand, under the civil law systems, a contract cannot exist in absence of a valid clause. The clause is different from the consideration aspect in that the reason with which a part associates itself with the control does not essentially have to be one where the person gets something in return. An example of this can be seen in a gratuitous contract that is created by a party that binds it for executing a duty that benefits another party, even when they do not compensation in return for doing so. Under common law, such a contract would not hold good as the absence of consideration would leave the contract unenforceable. The main distinction between the two systems thus can be reflected in the clause and compensation aspects, as the common law does not accept such a contract, which is in the interest of a third, party beneficiary.

Conclusion

On the basis of the analysis of the different legal systems undertaken in the previous parts, it can be concluded that both the civil law traditions and the common law traditions have their own set of unique features. The civil law tradition is based on a set of clearly codified laws, while the common law system is based on the precedents that have been set by the courts. The significance of the courts in both systems is there, but it is higher in cases of the common law tradition, as the court acts out as the law-making body and also acts as the check on the laws being followed, by taking action on the deviations of set law. In the civil law system, the courts act only in the capacity of the judicial body, which does not play the role of the law-making body.

In Vietnam, there is the applicability of civil law traditions, as there is a codified system of laws that are applicable in this jurisdiction. As stated earlier, there have been contentions regarding possible changes in the Vietnamese legal system, but the present civil system already presents a comprehensive system for the nation. Thus, the possible changes to the legal system can be explored, even when they do not seem warranted. This can particularly be stated through the comparison of the two systems drawn earlier, which shows that the civil law system is a more standardized and formalized system, albeit the common law is the more practical one.

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