Continental legal system
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n. According to item 76 of the Constitution of Italy legislative decreets concern system of regulatory legal acts. Also the decreets of the president which are valid the law, and regulations concern system of regulatory legal acts in Italy.- the rule of the behavior which has developed on the basis of constant and uniform repetition of given actual relationscustom rare enough in the Romano-German right, in own way the unique phenomenon which not only isn't welcomed understandably, but, on the contrary, is in every possible way limited, and in some national systems legislatively it is forbidden. a whole position of custom in Romano-German system it is right rather originally.can operate not only in addition to the law, but also except the law. Situations when the custom occupies position against the law (for example, in the navigating right of Italy where the sea custom prevails over norm of the Civil code) are possible. the custom has lost character of an independent source of the right on right Romano-German modern development.practice, judicial precedentsis such legally significant behavior of the power which took place at least one only time, but can be an example for the subsequent behavior of this power. Differently, legal precedent is a decision юрисдикционных and administrative bodies on concrete business which is accepted subsequently to the general obligatory rule at the permission of words affairs. judgement based, for example, on analogy of the law or on the general principles, can be perceived by other courts after decision passage through cassation instance as actual precedent.researchers give particular attention to the granted kind of a source of the right.is caused, on the one hand, by the practical importance of precedent as source of the continental right, and with another - discrepancy, is more exact - uncertainty of its position, a place and a role of system of other sources of the roman-German right. same Marchenko M. N allocates three groups. The first group includes the countries which completely support precedent. In other legal systems precedent isn't perceived at all. And in the third group - Romano-German to system precedent takes rather uncertain place in right sources.precedent as one of right sources first of all it is necessary to pay attention, on historically developed in Romano's countries - the German right rather inconsistent traditions and customs. international contractsdevelopment of international communications the great value for systems of the right of the separate countries gets international law. In some states the big validity, than to internal laws is given to the international contracts. The constitution of Germany (1949) For example, establishes that the general norms of international law have advantage before laws and directly generate the rights and duties for inhabitants of federal territory (item 25). to interpretation of norms international the contract that it can be carried to the competence of supranational jurisdictions. In these cases at serious doubts in how such contract should be interpreted, national court it is necessary to refuse its interpretation. The state of affairs with Roman and Parisian contracts by which in 1951 and 1957 different European communities have been created is that. doctrineRomano - the German right the term the doctrine is used widely enough. In Marchenko's work as the doctrine understands the following: as the doctrine, the filosofsko-legal theory; as opinions of scientists-lawyers on those or other questions, concerning essence and the maintenance of various legal certificates, on questions of lawcreation and lawunderstanding; as proceedings of the most authoritative researchers in the field of the state and the right; in the form of comments of the various codes, separate laws, the annotated versions (models) of various regulatory legal acts.doctrine develops receptions and methods of an establishment, interpretation and right realization. Besides creators be right can't be free from influence of legal doctrines: more or it is less realized, but it should take the part this or that legal concept, to perceive its offers and V.K.Babayev's recommendation. the countries of the romano-German legal family as it is possible to allocate the simple administrative circulars, specifying as the administration understands the rule of law and as she intends to apply it. Administrative officials frequently know the right only under office instructions which they receive in the form of circulars; and more often they prefer to be limited to these instructions not to have troubles from the higher heads.
3. General characteristics of civil law legal system
.1 Law system and its structure
system of right for the continental countries of Europe has the structure which is folded, as well as in the Roman law, from two subsystems -- public and private. Imperative (categorical) norms which can not change participants of legal relationships prevail in the subsystem of public law. Non-mandatory norms prevail in the subsystem of private right, and only in that part in which they are not changed the participants of relations. Industries of subsystem of public law: constitutional, criminal, administrative, financial, international public, judicial industries, basic institutes of labour right but and others.of subsystem of private right: civil, domestic, point-of-sale, international private, separate institutes of labour right (on the whole the mixed character has a labour right) and others.
All norms of right have clear connection with concrete industries and institutes of right, which are the result of influence of legal doctrine which accents attention on the necessity of account of object and method of the legal adjusting. The fields of law are acknowledged the most considerable structural element of the system of right.most countries of continental Europe classification of the fields of law is words with German (Switzerland, Spain, Austria). In some countries (Italy, Belgium, Netherlands) the French chart of classification predominates yet. The result of this is that Netherlands, for example, name legal daughter of Francedifferent fields of law in different countries have a different degree of developed and codification. Considerable part of private right is codificated, what can not be said about a public law. Especially it touches an administrative law. It it was developed in France, whereupon entered other European countries. True, an administrative law on the whole is not codificated even in France. Only part of relations which are regulated an administrative law entered in the created collections of legislative and normative acts.some countries (To the German federal REPUBLIC, Austria, Belgium, Italy, Switzerland) the creators of administrative law were administrative courts which decided conflicts of administrative law questions, that, naturally, influenced on originality of forming of this field of law in the noted countries.character of legal thought of lawyers of continental Europe (unlike concrete, precedent thought of common law) allowed to work and systematize the institutes of right.
.2 Distinctive features of the system
features of the Civil Law system:
The uniform hierarchically constructed system of sources of the written right, dominating place in which occupy statutory acts (legislation);
The leading role in right formation is taken away to the legislator who creates the general legal rules of behavior;
Law applier (the judge, administrative bodies, etc.) urged to realize only precisely these general norms in concrete law applying certificates;
There are written constitutions possessing the higher validity;
High level of standard generalizations is reached with the help codificated statutory acts;
Powerful position occupy underlaw statutory acts (regulations, instructions, circulars, etc.);
Division of system of the right on public and private, and also on branch;
The legal custom and legal precedent represents itself as auxiliary, additional sources;
On the first place there are not duties, but human rights and the citizen;
The legal doctrine has special value. It is developed and developing at universities main principles (theory) of construction of the given legal family .
.3 Subgroups in the civil law system
term "civil law" as applied to a legal tradition actually originates in English-speaking countries, where it was used to lump all non-English legal traditions together and contrast them to the English common law. However, since continental European traditions are by no means uniform, scholars of comparative law and economists promoting the legal origins theory usually subdivide civil law into four distinct groups:: France, Belgium, Luxembourg, Quebec (Canada), Louisiana (U.S.), Italy, Scotland, Spain, and their former colonies;: Germany, Austria, Switzerland, Greece, Brazil, Portugal, Turkey, Japan, South Korea, and Taiwan (Republic of China);
Skandinavian : Denmark, Finland, Iceland, Norway, and Sweden.(except Hong Kong) is a mixture of civil law and socialist law. Hong Kong, although part of China, uses common law. The Basic Law of Hong Kong ensures the use and status of common law in Hong Kong., Brazil and Italy have evolved from French to German influence, as their 19th century civil codes were close to the Napoleonic Code and their 20th century civil codes are much closer to the German Brgerliches Gesetzbuch. More recently, Brazil's 2002 Civil Code took inspiration from the Italian civil code, aiming at the unification of private law; legal culture and law schools have also come near to the German