eDiscovery: Rules and Regulations in Common Law vs. Civil Law Countries

Legal systems in countries worldwide are categorized into civil law systems and common law systems. Originating in Europe, civil law is a system in which underlying principles are codified into a referable code that serves as the primary source of law. The Common law system, on the other hand, is based on case law or law developed by judges through decisions made in relevant tribunals or courts.

Around 150 countries are classified as primarily civil law countries, while 80 nations function under common law systems. Examples of common law countries include England, Australia, the US, Canada, and India, whereas civil law countries include Japan, China, Germany, France, Spain, most other European countries, all nations in South America except Guyana, and most African countries.

Differences in Regulations Between Common Law vs. Civil Law Countries

Before we go into the rules, let’s not miss out on the fact that countries following a common law system are usually former British colonies, whereas civil law countries are typically former Spanish, Portuguese, German, or Dutch colonies.

A key point is that in the European context, members of the European Economic Area (EEA) that have adopted a civil law approach do not have the concept of the discovery process in litigation support, while those following the common law approach do. In the litigation process of civil law countries, there’s no discovery expectation.

Apart from this, the opinion of the jury in civil law systems doesn’t have to be unanimous. They’re almost exclusively present in criminal cases but never involved in civil actions. However, juries in common law systems are only made of laypersons, not judges. They’re more focused on assessing the evidence presented to them, identify facts, and apply the law.

A common law system may not always have written codified laws or a written constitution, but the civil law system generally involves a written constitution based on certain codes, such as codes relating to corporate law, tax law, constitutional law, administrative law, and civil code, issuing basic duties and rights. It’s important to note here that administrative law in the civil law system is normally less codified, where the judges behave more like common law judges.

In civil proceedings, lawyers still represent their client’s interests, yet have a less central role. They have less importance for engaging in oral argument, active lawyering and giving in-court presentations. Whereas, lawyers in common law countries examine witnesses and make presentations to the judge or the jury themselves. They play a very active role in legal proceedings, standing before the court and convincing others on facts and points of law.

Moving on, judicial decisions in the common law system are binding. This means that decisions taken by the highest court can only be overturned through legislation or by that same court. For example, actions defined as crimes by existing laws are governed by aspects of the common law. This can include cases involving theft, assault, murder, or other acts regarded as crimes. In such cases, the ruling is based on whether the weight of evidence indicates the guilt or not. Considering the verdict issued by the jury, the judge will then make decisions based on past legal precedents.

In civil law systems, however, only decisions enacted through legislation are binding on all. Although civil law judges tend to rely on previous judicial decisions, there’s no real scope for judge-made law in civil, commercial, and criminal courts. Administrative and constitutional courts in a civil law country can discard the laws and regulations. While the precedents do carry some weight, the judges in civil court are not necessarily bound to follow a narrow interpretation of existing laws. They’ll examine how those laws apply in the case at hand. It can alter, expand, or change a law that has previously been in effect when rendering a decision.

Civil law also comes into play in case there are claims of negligence or other damages that aren’t linked to alleged criminal activities. These might include damage to property, personal injury, or other negative effects that arise due to unintentional or intentional negligent conduct of the accused. The outcome in civil law countries solely focuses on the plaintiff and the defendant. For instance, if there’s a conflict pertaining to the terms governing an offshore term deposit account, the only entities impacted by the court’s ruling will be the account holder and the bank the account is held in. It won’t affect any third party. The outcome may form the foundation of new legislative or judicial action that becomes law, but the decision made or award granted applies to that specific case. They do not establish punitive damages for future cases.

Moreover, the common law system is characterised by extensive freedom of contract. This means that although provisions designed to safeguard private consumers might be implied, few provisions are implied into the contract by law. In contrast, there’s less freedom of contract in the civil law countries, in which many provisions can be implied into a contract by law, many of which can’t be contracted out by parties.

Besides, the writings of legal scholars in some civil law countries often have a significant influence on the courts, whereas, in common law countries, they have little influence.

Final Word

To wrap it up, each country has its own policies and traditions. Some follow the common law approach, while others adopt the civil law system for litigation support. There are a number of key differences in rules and regulations between common law countries and civil law countries. We’ve tried to cover the most important disparities in this guide so you know what you are dealing with.

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