Civil Law Jurisdictions Research Articles

Constitutional Conventions Concerning the Judiciary beyond the Common Law

AbstractConstitutional conventions are traditionally understood as socially binding, usually unwritten, rules of constitutional importance based on precedent which cannot be enforced before courts. This traditional approach has several limitations, because it debates the normative quality of conventions rather than how to find them and where the real power lies. By doing so it is disconnected from scholarship on informal institutions in social sciences. Moreover, scholarship on constitutional conventions focuses predominantly on common law countries and conventions concerning political branches. This article pushes the boundaries in both directions. It shows how constitutional conventions can be conceptualized in civil law jurisdictions, and also identifies informal practices and constitutional conventions governing the judiciaries. On a broader level, it argues that constitutional conventions as a normative concept can help to filter the informal practices and differentiate between simple repetitive behavior on the one hand and conventions as a subset of informal institutions on the other.

While English Lawyers Say No, Civil Lawyers Say Yes. The Intriguing Case of Frustration of Purpose in Comparative Law

A curiosity in comparative law is found in the doctrine of frustration of purpose, created by the English courts in 1903, which never took flight and remained a rarity of exceptional application, but at the same time, it was looked upon favorably by certain civil lawyers – especially Latin-Americans – who defended the importation of frustration of purpose with urgency. This paper explains that frustration of purpose is unnecessary and redundant for Civil Law jurisdictions.

Rethinking Legislation Governing Academic Integrity in the European Context

This paper argues that legislative intervention rather than deontological rules could be an adequate tool to address academic integrity concerns, particularly in civil law jurisdictions, which is the case in the majority of European countries. The recently enacted Montenegrin law on academic integrity offers a promising foundation for developing such an intervention in the European context, along with suggested improvements drawing upon four years of the implementation experience. Analysis of the law is also conducted with regard to several provisions of the Council of Europe’s recently adopted Recommendation on Education Fraud. The paper does not offer a ready-made concept, but its deliberation can serve as an inspiration for governments trying to improve existing rules on academic integrity. A legal approach will be taken in examining the problems and the relevant legislation.

A Comparative Review of Legislative Drafting Models in Common Law and Civil Law Systems

Purpose: The common law legislative drafting model is aimed at achieving precision and accuracy in a legislative text which is meant to encompass every detail on a subject matter.
 Methodology: Contrarily, the civil law drafting system seeks to introduce the main legal concept addressing a social phenomenon, while issues of detail will be regulated by secondary forms of law. In spite of these differences, some scholars of legislative drafting have in recent years been of the view that there is a meeting point between the two drafting models. Until recently, the comparative analysis of legislative drafting models was not given serious attention by legal scholars in comparative analysis. In this connection, while doctrinal legal approach will be employed as a descriptive and analytical review of the topic, comparative approach will be used to examine the various legislative drafting models. The objective of this paper is therefore to compare the common law and civil law legislative drafting models.
 Findings: The findings show that while there are clear cut differences between the common law and civil law legislative drafting models. There has also been cross-fertilisation of styles particularly in drafting of international instruments involving drafters from common law and civil law jurisdictions.
 Recommendations: This paper therefore recommends the need for legislative drafters in Nigeria to be properly trained with a view to learning the similarities and differences between common law and civil law legislative drafting models.

Diminished criminal responsibility: A multinational comparative review

This article reviews the legal frameworks of diminished criminal responsibility in eighteen civil law jurisdictions across the globe—Brazil, Chile, China, the Czech Republic, Finland, France, Germany, Greece, Italy, Japan, Luxembourg, Poland, Portugal, Russia, Spain, Switzerland, Taiwan, and Turkey. Specifically, it reports the legal standards and main features of partial responsibility, associated penalty reductions, and potential dispositions following a partial responsibility finding. It also surveys empirical data on the prevalence of diminished responsibility as compared to criminal nonresponsibility. This article, which reflects contemporary penal codes and draws from both English and non-English sources, is the only known existing source to compile these partial responsibility standards or to delineate their precise sentencing consequences. It is also the only known source in English to describe Portugal's and Chile's treatment of diminished responsibility. Providing a comparative overview of graduated responsibility in nearly twenty countries invites global discussion on whether and how society should recognize partial responsibility, as well as the punitive and therapeutic consequences that should attend this finding.

Anti-suit Injunctions at Crossroads: Navigating Unique Jurisdictions

Anti-suit injunctions are typically treated differently in common law and civil law jurisdictions. While common law jurisdictions may favour anti-suit injunctions as enforcing the parties’ agreement to arbitrate, civil law jurisdictions are generally concerned that anti-suit injunctions risk interfering with the jurisdiction of foreign court proceedings. The United Arab Emirates (UAE), where common law and civil law jurisdictions intersect, presents a unique example. The on-shore UAE courts apply civil law while the off-shore Dubai International Financial Centre (DIFC) and Abu Dhabi Global Market (ADGM) Courts apply common law, bringing a new dynamic to the availability and enforcement of anti-suit injunctions. The interaction of these courts and the fine balance achieved has resulted in remarkable developments in the UAE. However, both in the UAE and further afield, certain challenging issues such as interim anti-suit injunctions, interim measures filed in parallel court proceedings, and anti-suit injunctions against third parties related to the dispute serve to test this balance. Nevertheless, with new developments in the region, a positive attitude appears to have emerged on the availability of anti-suit injunctions, opening it up to potential advancements as the jurisprudence continues to evolve. anti-suit injunctions, arbitration, foreign court proceedings, UAE, arbitration agreement, enforcement

Modified Hierarchical-Attention Network model for legal judgment predictions

The impact of Artificial Intelligence in Legal Research has reached a high level in simulating human thought processes. Case Pendency is a long-lasting problem in many countries. The judicial system has to be more competent and reliable to provide justice on time for any developing country. Litigants and attorneys devote more time and effort to trial case preparation in the courtroom. The task of decision prediction is to automatically forecast the type of charge, law article, and term of punishment. Most of the earlier works for verdict prediction focused to work on civil law jurisdictions. Some of the challenges in the task are case facts are highly unstructured lengthy documents with a lack of annotations and mainly used machine learning techniques. While most research works ignore the information loss at the encoding stage, our proposed MHAN overcomes the above issue and long-range dependency problem using the attention model over hierarchical encoders with three tiers namely Sentence encoder, word encoder, and character encoder. To avoid information loss, a brand-new judgment prediction framework called MHAN is developed in this study effort. It is built on a modified Hierarchical-Attention network and a specially designed domain-specific word embedding model. Additionally, it emphasizes the feature extraction phase by joining features obtained using MHAN with an improved cosine similarity feature. Finally, a hybrid Self Improved RNN is employed to provide the projected results. Furthermore, the proposed model is trained on 10 types of real-time criminal cases from the Madras High Court of India and Supreme Court of India. It has outperformed prior methods in terms of verdict prediction. By applying different variations of the deep learning model and ablation tests, the proposed model achieves consistent results over baseline models.

PUNISHING DOMESTIC HOUSEBREAKING

Housebreaking is pre-eminently a crime of violation. From the earliest times the interest of a person in the safe and private habitation of his home has been treated reverently and regarded as deserving of special protection by the law. This is reflected in the original rationale for the crime, in its Common Law manifestation, as an offence against the habitation. Domestic housebreaking, consisting of the breaking and entry into a dwelling for the purposes of committing a crime within, is thus the classic form of the housebreaking crime, involving the violation of the dweller's sanctuary from external attack (for, as Coke has enquired, “where shall a man be safe if it be not in his house?”). The consequences of domestic housebreaking are not only (in the typical case) material loss, but a significant degree of psychological or emotional trauma. The victim has to contend with more than just the initial shock however. Research has indicated that feelings of fear and nervousness, along with changes in eating and sleeping patterns, may persist long after the housebreaking has taken place. Where the incident of housebreaking goes beyond simple transgression of property interests, with a concomitant infringement of the victim's territoriality, and results in a confrontation between housebreaker and victim, it follows that the resulting harm may be notably amplified.
 It brooks no denial that housebreaking is a paradigmatic criminal act. This is reflected in its ubiquitous presence as a substantive offence in all jurisdictions based on English “Common Law”, usually as “burglary” or “breaking and entering”. Moreover, the conduct associated with housebreaking is criminalized in civil law jurisdictions, usually as either an aggravated form of the crime of theft or a trespass offence. Given the consensus that the conduct associated with the housebreaking crime is deserving of criminalization, this leads as a matter of course to the issue of punishment – what factors ought to be taken into account in determining the sentence of the convicted housebreaker?

The Legislative Text as a Legal Story: a Storytelling Approach to Contemporary Legislative Drafting

A recent approach to legislative drafting, seen in common law jurisdictions which particularly praise plain and accessible legal communication, includes the presentation of legislative provisions to readers in a storytelling format. The legislative story develops progressively, by introducing legal characters, and describing relations, activities, and events. The paper draws on a number of drafting techniques, namely narrative-style drafting, the location of legal definitions in the structure of a legislative act, new types of legal definitions, the formal identification of terms and their signposting, as well as directness and personal tone. Based on various Commonwealth drafting directions, a legislative text is perceived and analyzed as a legal story written by lawyers and legislative drafters. This is in line with the discursive approaches of text linguists, such as De Beaugrande and Dressler, or van Dijk and Kintsch, who looked at the text as a process. Thus, text linguistics might be an adequate methodological framework to describe a legislative narrative. To successfully tell a legislative story, the identified elements of the storytelling approach are needed, such as a coherent conceptual framework, clear formal identification of terms, their adequate location in the structure of a legislative act, and more. The storytelling approach in common law legislation may be worth considering in continental (civil law) jurisdictions to improve the readability, accessibility, and clarity of laws.

Rape-By-Deception in China: A Messy But Pragmatically Desirable Criminal Law

China’s Criminal Law defines rape to include circumstances where a perpetrator “by violence, coercion, or any other means rapes a woman.” We critically investigate whether and how this provision is applicable to the use of deception to obtain sexual intercourse, and make three contributions. First, through a quantitative and qualitative analysis of contemporaneous scholarly commentary and a systematic survey of court judgments from 2015 to 2020, we demonstrate that religious fraudulent sex, medical fraudulent sex, and impersonation of intimate partners are punished as rape in China. Second, we argue that the current Chinese law is normatively desirable vis-à-vis the general consensus among scholarly commentary and legal practices elsewhere. Third, we highlight the unique starting point of Chinese sexual offenses provisions as compared to both common law and civil law jurisdictions, and explain how this “blank slate” contributed to a legal evolution process that prioritizes attaining desired legal outcomes at the expense of neat, coherent principles. More broadly, our case study of China challenges the prevailing assumption in English-language literature that civil law jurisdictions are less receptive towards fraudulent sex criminalization. It also cautions against the practice of reviewing statutory provisions in isolation when determining the substantive law of civil law jurisdictions.

Fiduciary duties and the 1985 Hague Trusts Convention

Abstract This article considers the ongoing work and application of the Hague Conference on Private International Law (HCCH) Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition (Trusts Convention). The article analyses fiduciary duties found across the trusts legislation and draft legislation of selected common and civil law jurisdictions. The commonalities of fiduciary duties across jurisdictions are presented here to provide a foundation for discussion among legal experts regarding their possible future inclusion in the HCCH Trusts Convention or in supporting materials developed by the HCCH as a list of fiduciary duties. Such a list of duties would foster certainty and predictability for those involved in legal relationships created by trusts.

The benefits and dangers of using machine learning to support making legal predictions

AbstractRule‐based systems have been used in the legal domain since the 1970s. Save for rare exceptions, machine learning has only recently been used. But why this delay? We investigate the appropriate use of machine learning to support and make legal predictions. To do so, we need to examine the appropriate use of data in global legal domains—including in common law, civil law, and hybrid jurisdictions. The use of various forms of Artificial Intelligence, including rule‐based reasoning, case‐based reasoning and machine learning in law requires an understanding of jurisprudential theories. We will see that the use of machine learning is particularly appropriate for non‐professionals: in particular self‐represented litigants or those relying upon legal aid services. The primary use of machine learning to support decision‐making in legal domains has been in criminal detection, financial domains, and sentencing. The use in these areas has led to concerns that the inappropriate use of Artificial Intelligence leads to biased decision making. This requires us to examine concerns about governance and ethics. Ethical concerns can be minimized by providing enhanced explanation, choosing appropriate data to be used, appropriately cleaning that data, and having human reviews of any decisions.This article is categorized under: Commercial, Legal, and Ethical Issues > Legal Issues Commercial, Legal, and Ethical Issues > Fairness in Data Mining

Attacks on trusts in civil law jurisdictions

Abstract Modern trust litigation is distinctly international, but what happens when jurisdictions without an established law of trusts become embroiled in claims following the misapplication of trust assets? This article considers how the involvement of such non-trust jurisdictions affects claims to trace or follow equitable property rights, and in respect of dishonest assistance and knowing receipt. The latter is of particular significance in view of the 2022 decision of the Court of Appeal in Byers v Saudi National Bank—now headed for the Supreme Court—which held that actual, beneficial receipt is required to found a knowing receipt claim.

THE WAR AGAINST CORRUPTION IS “A LOST CAUSE” WITHOUT ROBUST MEASURES TO REPATRIATE STOLEN ASSETS TO COUNTRIES OF ORIGIN

The paper discusses the impediments inherent in using anti-corruption laws to repatriate stolen assets to the victim state. It examines both state laws and the international legal frameworks aimed at overcoming these obstacles. The assets in question are accrued by public officials from the proceeds of corruption, money laundering, tax avoidance and other forms of illicit financial transactions in countries where they have been hidden. While less developed countries are often the countries of origin, destination countries of stolen assets tend to be developed Western countries. There is ample evidence showing that the recovery and repatriation of stolen assets to countries of origin is more easily said than done, given the barriers they face. Victim states not only suffer a loss of revenue as a result of economic criminality, but they also incur huge expenses in attempting to recover criminal assets, without any guarantee that they will succeed in doing so. In essence, this article looks into the generic issues related to asset recovery. It examines the approaches adopted by both common law and civil law jurisdictions in Africa with respect to the repatriation of stolen assets, and explores the practicality of harmonising anti-corruption laws across the African continent, as has been done amongst member states of the European Union.

Доверительная собственность (траст) в законодательстве, правовой доктрине и судебной практике стран романо-германской правовой семьи

As of today, some civil law jurisdictions have adopted domestic trust legislation acknowledging a trust as a form of ownership. Several civil law jurisdictions have recognised foreign trusts in recent years as a regulatory and tax matter, in order to find and document the offshore assets of their taxpayers and other jurisdictions have adopted the Hague Trust Convention on the Law Applicable to Trusts and on Their Recognition 1985, simplifying the construction and recognition of foreign trusts, because the Convention imports specific conflict of law provisions into the law of the countries that have adopted it. In the other civil law jurisdictions that have not adopted the Trust Convention, the election of law made by the settlor will generally be recognised if their laws authorise an election. Notwithstanding the fact that an election of a foreign law or a foreign forum is made in the trust deed, the court is going to turn to its domestic laws and among other things to its own conflict of law provisions to determine the validity of the election made. The construction and recognition of foreign trusts will rely uniquely on case law in a jurisdiction where there is no conflict of law provisions for trusts. In all civil law jurisdictions transfers in trust are generally void to the extent they deprive an heir of her forced share or a spouse of her share in a community property, if the trust violates rule against perpetuities or any other mandatory provision of domestic legislation. In light of the aforementioned, the aim of the article is to show that сivil law jurisdictions search for new ways to afford the benefit of trusts in a variety of settings.

Managing and preventing cross-border disputes arising with the increasingly popular use of succession substitutes

Abstract As the world becomes increasingly interconnected, many people are faced with increasing challenges in the planning and execution of wealth-transfer strategies upon death when they have property in different countries. At the same time, the rising popularity of succession substitutes or, as they are called in the common law world, will substitutes or non-probate devices that transfer property at death otherwise than by succession, is increasingly posing challenges for cross-border legal disputes, particularly in the absence of uniform choice of law rules relating to succession substitutes. In this article, Professor Jeffrey Talpis reviews the existing approaches for managing and preventing cross-border disputes involving, for example, the use by parties in civil law jurisdictions of common law non-probate devices, such as acquisitions in joint tenancy, pay-on-death or transfer-on-death accounts, and revocable inter vivos trusts. The author first defines and classifies succession substitutes used in domestic laws, then examines different approaches for managing cross-border disputes involving these devices in civil law and common law jurisdictions. While the author continues to promote the adoption of an international instrument to provide uniform solutions to resolve cross-border disputes arising from the use of succession substitutes, he proposes certain suggestions that, in the interim, could assist prevention of such conflicts of law.

Anabolic-androgenic steroids: Considerations for forensic psychiatry, sports psychiatry, and the law

Anabolic-androgenic steroids: Considerations for forensic psychiatry, sports psychiatry, and the law

Integrity at Sentencing and the Issue of Judicial Discretion from a Dworkinian Perspective

Ronald Dworkin wrote nothing or very little about the fundamental political issues of crime and punishment. This article proposes a Dworkinian reading of such issues. It focuses on two aspects of Dworkin’s work: 1) his criticism of judicial discretion, and 2) his “law as integrity” theory (legislative and adjudicative principle). Integrity of Law in Western legal traditions is examined from a bifurcated approach: on the one hand, in civil law jurisdictions, with a strong culture of legal positivism, the legislative principle is prominent; on the other hand, in common law jurisdictions, statutory provisions are less relevant, and other sources of law prevail (e.g., case law). Building upon Dworkin’s writings, we examine statute-oriented, sentencing models from civil law jurisdictions, and the sentencing guidelines systems from the U.S. and England and Wales. Despite their differences, we set out to find some convergence between both models, aiming at promoting greater integrity at sentencing.

Co-existence and harmonisation of different legal traditions in South Africa

This essay introduces a contemporary description of the mixed jurisdiction of South Africa. It depicts how in South Africa co-existence, harmonization and resistance are found in different fields of law and identifies both pitfalls and benefits of mixity. Several components are introduced: civil law, English common law, local customary law, the Bill of Rights and international legal instruments. The successful harmonisation of civil and common law is ascribed to introduction of the English administration of justice. The British institutions, structure and process placed the focus on legal procedure and succeeded to avoid conflict between different legal cultures as economic transactions ignored different value systems and doctrine. The same model was, however, not applied in respect of indigenous customary law, where from the onset choices between values and doctrine were cast in stone with the consequent conflicts. The new constitution of 1996 is transformative and the courts are instructed to develop common law and indigenous law to promote the rights, values, spirit and purport of the Bill of Rights. Thus, in all fields of private law court decisions attempt to realise such transformation by harmonising constitutional values with legal tradition while strong impetus has been provided by legislation. As it appears that the need for harmonisation between civil and common law is experienced mainly in the commercial field, the question arises whether civil law jurisdictions can transform themselves into a mixed jurisdiction by way of legal transplants to facilitate the global market. Mixed legal systems developed mostly as the result of colonial history. Civil law and common law were able to mix because the common law court system and procedure made it possible for English trained judges to successfully merge certain areas of private law, primarily in the commercial field. This means that the court system and the law of procedure, but especially training, qualification and selection of judges are of paramount importance.

A Comparative Study of Judicial Review in Common Law and Civil Law Jurisdictions

A Comparative Study of Judicial Review in Common Law and Civil Law Jurisdictions