Civil Law Countries Research Articles

Recent trend and issues in amending family law in Korea

Civil law countries generally include family law in their respective civil codes. The Republic of Korea is not the exception under this aspect. The Korean Civil Code which was enacted in 1958 and came into force in 1960 is structured on the base of the Pandekten system. Based on it, Part IV of the Civil Code is the law on relatives. The Korean Civil Code since its coming into effect on January 1, 1960 has been amended twenty nine times, among which thirteen amendments concerned the revision of the law on relatives. Given that general reluctance to amend the Civil Code in Korea, the relative regularity of the revisions show how significant the changes were that took place regarding family relations in the Korean society. A study of the history of amendments show that the factors of amending family law are three-fold. First, family law was amended for the purpose of gradual evolution of the Code by shedding elements of premodern law found therein. The amendments of 1962, 1977, 1990 and 2005 took place due to such a factor. Second, there were those amendments that were the result of the Korean Constitutional Court’s decision that determined that particular provisions inheritance were either unconstitutional or non-conformable to the Constitution. Third, family law was also amended in order to reflect the urbanization, industrialization, ageing of the Korean society and the rise of individualism, thereby strengthening the institution of family and affording more protection to the weak within the family. The latest amendment was the result of the latter. Among other things, the article pays some attention to the family legislation of North Korea, its specific features and unique structural differences from both the law of the Republic of Korea and the civilian tradition in general.

Terms of Reference of The Iraqi Commercial Court

In light of the Iraqi Supreme Judicial Council No. (74) for the year 2000 and its influence on the economic and commercial side, this study attempts to illustrate the viability of founding the Iraqi Commercial Court. It is the whole seed. The goal is to make commercial conflicts more swiftly and efficiently resolved through establishing an expert commercial judiciary. Specialized judges with high expertise and knowledge help ensure that court judgments are successful in both processes and causes. In light of the statement published by the Supreme Judicial Council No. (74) for the year 2020, the research focuses on the efficacy of the Iraqi commercial Court in addressing commercial disputes. This article reveals that the Iraqi legislative attempts to attract international investment and the Iraqi executive branch's continued efforts to resolve investor concerns by modifying the Investment Law. The Iraqi court has successfully developed a stable legal environment for multinational firms. Commercial courts, acknowledged as fair by international businesses, were established to accomplish this. As a result of Iraq's communist past, foreign investment was viewed as a source of skepticism and mistrust for many years. These courts will undoubtedly play a significant role in advancing Iraq's progress. However, courts alone will not provide the long-term guarantees needed to transform Iraq's legal framework for domestic and foreign businesses to operate inside. Civil law countries like Iraq necessitate significant reforms to the country's intellectual property, investment, and arbitration regimes.

ОПЫТ ЗАРУБЕЖНЫХ СТРАН ПО РЕАЛИЗАЦИИ ТРЕБОВАНИЙ ДОПУСТИМОСТИ ДОКАЗАТЕЛЬСТВ ПРИ ПРОИЗВОДСТВЕ ПО УГОЛОВНЫМ ДЕЛАМ

This article provides general features of the legislation of common law countries (Great Britain and the United States) as well as civil law countries, in regulating the issue of admissibility of evidence, specifies the definition of admissibility of evidence, their properties, and also describes in detail the categories of inadmissible evidence with a simultaneous comparison with the requirements of the legislation of the Republic of Uzbekistan. Besides, an analysis of the criteria for the inadmissibility of evidence of these countries was carried out, as well as a comparative analysis of the aspects of the inadmissibility of evidence with the disclosure of values, interpretation of the features of applying in the named government, with a simultaneous comparison of the criteria for the inadmissibility of evidence of national legislation, including those recent innovations established to criminal procedure legislation. Moreover, the article provides the positive and negative aspects in the field of admissibility of evidence of each system of law, legal scholars` points of view regarding this issue. The article substantiates the existence of an objective and logical connection between the establishment of high requirements for the admission of evidence and the achievement of the truth in a criminal case, which is characterized as inversely proportional. In the conclusion of the article, the author’s understanding of the meaning of the admissibility of evidence is formulated, with the formulation of the relationship of the system with the goals of the criminal process and the implementation of the rights of participants.

GAR’s guide to IP arbitration (2021): a critical appraisal

The establishment of international dispute resolution chambers by various States, the mediation and arbitration centres envisaged under the Unified Patent Court project in European Union, the adoption of Alternative Dispute Resolution (ADR) processes at trade fairs and the reference of disputes pertaining to licensing of standard-essential patents (SEP) on fair, reasonable and non-discriminatory (FRAND) terms to ADR by judicial authorities underpin the global appeal of IP arbitration. The Guide to IP Arbitration1 (‘Guide’) endeavours to demystify the novel field of IP arbitration from a global perspective and must be commended for its timely fruition. The publication includes contributions by 15 prestigious law firms from varied civil and common law countries. The Guide is divided into five parts spreading across 243 pages, logically and systematically arranged to appraise various substantive and procedural considerations which arise at different stages of resolving IP disputes through ADR. The Guide posits that a choice...

The application of good Faith principle of precontract in common law and civil law contry

In Indonesia, development of application of good faith principle in legal agreement focuses on the application of Civil Code (KUHPerdata) where scope is still placed on the implementation of agreement. It is as if Civil Code has not recognized the existence of good faith principle at pre-contract stage. In comparison, according to modern agreement theory that parties who suffer losses in pre-agreement/contract stage or at negotiation stage, their rights also deserve to be protected. Thus, pre-agreement/contract promises will have legal implications for those who violate them. This will be seen in countries that have common law and civil law systems. An important issue in this case relates to the principle of good faith at the pre-contract stage which creates a gap with the provisions in the legislation. To analyze these problems, legal research was conducted with the black-letter law paradigm. Technique of collecting legal materials in this research used library research. Legal materials are analyzed deductively and utilize the method of interpretation (hermeneutics). Results showed that the application of the principle of good faith at the pre-contract stage in Common Law and Civil Law countries had differences. In the Civil Law system, good faith is highly emphasized in the stage of contractual negotiation. Whereas in the Common Law system, it prioritizes efforts to restore rights of aggrieved party in pre-contract stage. Parties who do not have good faith at the pre-contract stage have legal consequences for cancellation of the agreement.

Use of World Commerce & Contracting Principles in practice by an attorney from a civil law jurisdiction

This essay focuses on the manner in which an attorney from a civil law jurisdiction may use the World Commerce & Contracting Principles dated February 2020 (hereinafter: the WCCP) and how to get the most out of the World Commerce & Contracting Principles in the negotiation and drafting phase of a contract. This essay will outline the issues to which an attorney from a civil law country needs to pay attention to when using World Commerce & Contracting Principles and provide examples of adaptations that may be necessary when using the World Commerce & Contracting Principles as a basis for negotiating and drafting a contract. It should be noted that adjustments of the World Commerce & Contracting Principles advocated in this essay are suggested from the perspective of the author who is a practicing attorney-at-law in a civil law country. Therefore, suggestions made in this essay are by no means intended to be set in stone since the use of the World Commerce & Contracting Principles should remain flexible enough to adjust to the needs of each particular transaction. As argued in this essay, the World Commerce & Contracting Principles represent a good starting point for facilitating successful negotiations. However, these principles do not cover all issues which may arise in the negotiation or drafting phase of a contract so the parties will need to supplement the principles regarding such issues while for other issues which are covered by the principles, the parties may need to adapt the principles, depending on the circumstances of the case.

Legal origins and innovation: Global evidence

This paper presents cross-country evidence on whether and how legal origins affect technical innovation. Using panel data on 120 countries between 1996 and 2019 and the Least Square Dummy Variable (LSDV) approach, we find that common law countries generally perform better in both technology innovation inputs and outputs than their civil law counterparts. Interestingly, we further present that French civil law countries exhibit the worst innovative performance, whereas German and Scandinavian civil law countries might even exceed common law countries in technical innovation. At least, there is no solid evidence to show that common law countries outperform German and Scandinavian civil law countries in technical innovation. Our findings further show that legal origins affect technical innovation via the political channel and the adaptation channel, and that legal origins’ actual role in technical innovation correlates with their impacts on financial development and private property protection. Our study offers new insight into legal origins’ economic consequences.

Cross-border spillover of institutional activism: The monitoring role of locally-aggressive foreign institutional investors

Using data from 32 countries for the period 2008–2018, this study examines the previously unexplored monitoring role of foreign institutional investors that are aggressive monitors in their home markets. First, consistent with the short-termist view of cross-border activism spillover, we show that ownership by locally-aggressive foreign institutional investors is negatively associated with firm value. Second, using country-level investor protection and investment horizon, we find that the negative influence on value only holds for common-law and long term locally-aggressive foreign investors. Contrarily, we find that the association between foreign activists from civil-law countries and value is positive and consistent with the managerial-disciplining view of cross-border activism spillover. Findings for total foreign ownership and locally-acquiescent foreign ownership remain similar to those reported in previous studies. Our findings are robust to endogeneity concerns, multiple specifications, and alternative measures of monitoring aggression in home markets.

Protecting image rights in the face of digitalization: A United States and European analysis

AbstractThe star of the movie “Rebel without a Cause,” James Dean, died in 1955. Yet the latest film he will officially be credited in, dates back to no sooner than 2020. Indeed, the movie “Finding Jack” will incorporate a hologram of James Dean, resurrected from the dead to play a character in this brand new performance under his name. This does not represent an exceptional singular case however. Technology is advancing at a drastic pace; which legislation sometimes struggles to keep up with. The novel ways of digitally reproducing human beings have brought along with them serious questions concerning Personality Rights protection. These rights diverge considerably from one jurisdiction to another, on a variety of topics such as the acknowledgement of posthumous protection or the scope of the right to privacy versus publicity rights, for example. This paper offers an evaluation of these rights, based on a comparative analysis across different civil and common law countries, which will hopefully provide an insight into how image rights are being safeguarded at present. The paper concludes proposing a potential future framework to ensure personality right protection in an increasingly digitized world.

The Effects of Legal Origin and Corporate Governance on Financial Firms’ Sustainability Performance

This paper examines the determinants of sustainability performance in the financial industry at the firm, country and legal origin levels. Through the analysis of the ESG score in a sample of 64 countries with 982 financial firms during the period between 2002 and 2018, we find that legal origin is a significant explanatory variable. In particular, our findings indicate that companies based in civil-law countries show higher values of ESG performance than their counterparts in common-law countries, suggesting the prevalence of the stakeholder theory in explaining the willingness of financial firms to engage in sustainability practices. Moreover, and following the assumptions of the “good governance” view, we also assess the joint the effect of corporate governance and legal origin ESG scores, finding that corporate governance structures emerge as a substitution mechanism of sustainability enhancement for financial firms based in common-law countries.

The Formation of the Anglo-American Law and the Power of Judges

Dichotomous explanations of “Civil Law = Statutory Law” and “Common Law = Case Law” are widely used. Still, it is difficult for lawyers and citizens in Civil Law countries to understand case law accurately. How can a case, a resolution for a particular party to a dispute, be a law generally applied to everyone? Although there exists some legal part in the court decision, how can such judgment be called a “law”? When the court interprets statutory law, is it correct to call the court ruling “the law itself,” not the “authoritative interpretation” of the law? While there is a historical background behind the formation of case law, how do judges maintain the tradition of making laws? Is it right to describe the distinctive characteristic of Anglo-American law as “judge-made law” in the present day when the legislative body enacts numerous statutory laws? The article examines judges’ high authority and mighty power in the Common Law tradition to answer these questions. In the birth and development of Anglo-American law, judges exercised strong powers that were difficult to justify with legal theories. The author’s view is that one cannot accurately understand the Common Law system and case law without understanding this unique history and cultural traditions. From this perspective, the article first looks at how Common Law judges historically have acquired and maintained more substantial power than continental law judges. British and American judges can issue a writ of mandamus to direct officials in the executive branch to specific tasks, often order litigants to prohibit certain acts, and severely punish civil contempt with broad discretion. Lawyers in the Anglo-American legal tradition continue to believe that the law does not exist in abstract legislation but concrete court rulings. Therefore, even in modern times, when the legislature actively enacts statutes, Anglo-American lawyers never abandon the belief in “judge-made law.” Whether to recognize case law as a primary source of law, allowing judges to have mighty power, and maintaining the principle of separation of power thoroughly is not a matter of right or wrong, or better or worse. All legal systems should aim to protect the liberties and rights of the sovereign people and promote their happiness, so they should be evaluated as helpful in achieving this goal. It seems that many British and American lawyers and citizens believe that granting strong power to judges helps protect civil liberties and rights better.

Improving board diversity around the world: the role of institutional investors

PurposeThis study aims to examine the role of institutional investors in improving board diversity for the companies in which they invest (investee companies) using evidence from corporate board characteristics across the globe. Additionally, this study also investigates the association between institutional investors and board diversity under various institutional settings, including varying economic conditions (pre-crisis, crisis and post-crisis), legal systems and ownership structures.Design/methodology/approachUsing a sample collected from 15 countries for the period 2006 to 2012, the paper uses panel data analysis to examine the association between institutional investors and board diversity.FindingsThe study provides evidence that institutional investors do not promote board diversity and show that in general there is no association between institutional ownership and various board diversity attributes such as gender, age, nationality and education. However, the study finds that institutional investors are positively associated with the educational diversity of boards during times of crisis and are negatively associated with board age diversity during pre-crisis and post-crisis periods. Furthermore, while in common law countries institutional investors are found to be negatively associated with board age diversity, they do not influence board diversity outcomes (i.e. gender, age, nationality and education) in civil law countries. The results also show that the associations between institutional investors and board diversity are mixed and insignificant according to different ownership structures (family and non-family owned firms). The main findings of the study are robust and apply to various estimation methods.Originality/valueThis study provides a unique perspective on the impact of institutional investors on board diversity using a sample collected from 15 countries. Furthermore, the study provides an insight that the institutional settings should be considered when investigating the activism of institutional investors in improving governance practices.

The Influence of Political Uncertainty on Commercial Banks in Emerging Market Countries

ABSTRACT An emerging question in the midst of this debate is that if and how political uncertainty may affect bank performance in emerging markets where corporate governance is often intervened by state financial institutions in local banking sectors. This paper uses a new dataset from 20 emerging economies to reassess the relationship between political uncertainty and bank efficiency. Using a stochastic frontier approach (SFA) to estimate bank cost efficiency, we find evidence that political uncertainty during election years tends to impede bank efficiency. Our results also reveal that commercial banks located in civil law countries and parliamentary systems tend to be less efficient during election years, while changes in efficiency among banks in common law countries and presidential systems are not driven by political uncertainty. These findings highlight the implications of the political environment for bank efficiency and are relevant to bank regulators who are considering additional regulations on bank management.

Imposing versus Enacting Commitments for the Long‐Term Energy Transition: Perspectives from the Firm

Imposing versus Enacting Commitments for the Long‐Term Energy Transition: Perspectives from the Firm

Cost Sharing in a Condo Under Law’s Umbrella

How to share the cost of an improvement in a condo? In France, as in most European civil law countries, the law does not provide any precise method for answering this question. This vagueness of the law calls for further investigation. Focusing on how to distribute costs that are collectively incurred by a group of players, cooperative game theory is a priori an appropriate framework for dealing with this topic. In this theory, the Shapley value is a widely used cost-sharing method. We analyze the interest of using this concept to solve our problem by considering the case of a three-storey condo. We show that taking into account the legal requirement that any decision concerning improvements be made by a majority of the votes affects the characteristic function of the game. We then identify a pitfall of the Shapley value: it almost never receives an affirmative vote from the co-owner association.

Standards of Proof: A Comparative Overview from the Ukrainian Perspective

The article addresses the issue of standards of proof from a comparative perspective. The author sketches the conventional distinction between common law and civil law countries in this regard, as well as some approaches that query the validity of the rigid division. The main purpose of the article is to characterise the Ukrainian approach to the standards of proof against the background of comparative analysis. The author concludes that recent developments in Ukrainian law have paved the way for a distinction between criminal and civil standards of proof. However, the doctrine is not yet elaborate enough to warrant a coherent application of the two different standards. There is a view that in civil law countries, not much attention is paid to the standard of proof. We would rather not take the liberty of generalising about all civil law countries, but with regard to Ukrainian doctrine, the assertion seems rather justified. However, some recent developments in procedural legislation give reasons to believe that the approach is being gradually changed. The disregard of the issue, underpinned by the sacred belief in the attainability of absolute truth, fades in comparison to the acknowledgement that standards of proof may differ in civil (commercial) and criminal cases. It is this inflexion point in Ukrainian evidence law that may entail far-reaching repercussions. Therefore, open discussion of the issue is needed to elaborate a doctrinal approach that could serve as a basis for the development of a coherent jurisprudence.

TRANSPLANTASI HUKUM DI NEGARA-NEGARA ASIA: SUATU PERBANDINGAN

This research discusses legal transplants in Asian countries. Legal transplantation (legal transplantation) is a theory that began to be widely used by some comparative and socio-legal law scholars in the mid-1970s. Using a normative juridical research method, this study chooses a historical, comparative, case and conceptual approach in examining legal transplantation in Asian countries. The results of this study indicate that there are two types of legal transplants carried out by common law and civil law countries in Asia, namely historical legal transplants and practical legal transplants.

The Insured's Post-Contract Duty of Notification of Increase of Risk: Comparative study in Iranian, Chinese insurance law and principles of European insurance contracts

Risk management in insurance contract is very important due to the continuous and onerous nature of such a contract. Considering the importance of risk management in insurance contracts; insurance law systems have established institutions for managing such a risk. Warranties in common law and the alteration or increase of risk in the civil law countries are the institutions which assist the insurer to control risk increase. However, benefiting from such right requires the insured’s subordinate duty to inform the insurer about the increased risk. The question that come to mind in this regard is: what are the conditions of establishment and the sanction for breaching this duty? In this respect, the insurer's obligation must be determined in a way that it does not entail the imposition of the burdensome obligation on him and meanwhile, it must be determined by considering the degree of insured’s fault and proper application of causal connection. By using descriptive-analytical method in line with explaining insured’s duty to notify, realization conditions of this duty, and sanctions of breaching such a duty; this article is seeking to provide a proper sanction template in order to modify the bugs and eliminate deficiencies in the Iranian insurance act and regulations of Supreme Insurance Council.

Investor protection, corporate governance and private information-based trading

PurposeThis study aims to examine the effects of investor protection (PROT), internal and external corporate governance (CG) on private information-based trading (PIBT).Design/methodology/approachThis study uses a sample of 3,438 firms from 42 countries for the period 2002–2015 to examine the effects of the broad and specific measures of PROT, internal CG and external CG (product market competition and block ownership [BOWN]) on a more accurate measure of PIBT using regression analysis.FindingsThe results show that PROT and BOWN are effective in reducing PIBT. However, the specific measure of PROT (strength of PROT) is not significant in emerging markets and civil law countries. The internal CG is also significant but has a positive effect on PIBT.Research limitations/implicationsThe results suggest that PROT law matters in the efforts to prevent PIBT. Policymakers and securities market regulators, particularly in emerging markets and civil law countries, should focus more on refining existing securities laws and enacting detailed securities rules that explicitly prevent specific market manipulation and PIBT.Originality/valueThis study provides evidence for the importance of specific and detailed securities rules in different market and legal environments. Furthermore, this study uses the segregated private information-based speculative trading component to accurately measure the PIBT.

The impact of mandatory adoption of XBRL on firm’s stock liquidity: a cross-country study

PurposeThe purpose of this paper is to examine the impact of the mandatory adoption of eXtensible Business Reporting Language (XBRL) on firm’s stock liquidity.Design/methodology/approachUsing a random-effects model, this study examines the impact of the mandatory adoption of XBRL (ADOPXBRL) on firm’s stock liquidity of 980 companies pertaining to 13 countries for a period from 2000 to 2016.FindingsThis paper finds that the mandatory ADOPXBRL affects negatively and significatively Amihud’s (2002) illiquidity ratio. Therefore, mandatory XBRL adoption enhances the firm’s stock liquidity. In addition, this paper finds that the impact of the mandatory ADOPXBRL on firm’s stock liquidity is more pronounced in civil law countries than in common law countries.Originality/valueThis paper contributes to the literature on the advantage of XBRL especially for the civil law countries by examining the impact of the mandatory ADOPXBRL on firm’s stock liquidity.