Keith Mack
Civil law, also known as Continental or Romano-Germanic law, is the most widespread legal system in the world, in force in about 150 countries. It is a legal system rooted in the Roman Empire, with modern codification first appearing in the Justinian Code. Civil law systems are characterized by their reliance on legal codes that function as the primary source of law. Civil litigation typically involves two main parties: the plaintiff (or petitioner, claimant, or appellant) and the defendant (or respondent). The plaintiff initiates the complaint or files a lawsuit, while the defendant is the accused party. In civil matters, victims may be able to represent themselves or become a partie civile. Civil law disputes often involve monetary compensation and the resolution of disputes between people and/or corporations.
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What You'll Learn
Plaintiffs and defendants
In civil law, the parties involved are the plaintiff and the defendant. The plaintiff is the party taking action, bringing the civil legal action, or making the claim. The defendant is the party being sued, or the party against whom the claim is made.
In most English-speaking jurisdictions, including Hong Kong, Nigeria, Australia, Canada, the United States, Northern Ireland, and the Republic of Ireland, the term "plaintiff" is used. However, in England and Wales, the term "claimant" is used instead. In Scottish law, a plaintiff is a "pursuer" and a defendant is a "defender". In the Federal Court of Australia, plaintiffs are usually called "applicants", except in admiralty and corporations law matters where they are called "plaintiffs".
The plaintiff has the burden of proof in civil cases, which is a lower standard than in criminal cases. In a civil case, the plaintiff must show that the defendant is responsible "by a preponderance of evidence", which means that the fact at issue is more likely true than not. In other words, the plaintiff must persuade the jury that it is "more likely than not" that the defendant caused the harm. In criminal cases, the burden of proof is "beyond a reasonable doubt", which is a higher standard and depends on the circumstances.
Civil law disputes involve individuals and/or corporations resolving disputes, often involving monetary compensation. For example, a plaintiff may demand compensation for medical expenses, lost income, pain, suffering, inconvenience, physical impairment, and other losses resulting from an injury. A plaintiff may also seek compensation for losses resulting from a car accident caused by another person. In such cases, the plaintiff must show that they suffered an injury due to the defendant's negligence, recklessness, or criminal act.
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Judges and magistrates
In civil law disputes, a plaintiff lodges a claim against a defendant or respondent, typically involving monetary compensation. These cases are heard before a magistrate or judge, who determines the legal issues and makes orders. The magistrate or judge may be appointed or elected, and their role can vary depending on the country and jurisdiction. For example, in England and Wales, magistrates are typically trained volunteers appointed to deal with criminal and civil matters in their local areas. In Russia, magistrates handle minor criminal and civil cases, and they are the only judges at the regional level, with other courts being federal. In Finland, a "magistrate" refers to a local administrative office responsible for tasks like keeping population information and conducting civil marriages.
In civil law systems, the term "magistrate" can have different meanings. In some European countries, it is a generic term that comprises both prosecutors and judges, distinguished as the 'standing' versus 'sitting' magistrature. For instance, in France and Italy, examining magistrate judges represent the victim and oversee investigations from the beginning of a case. In Portugal, the term is also used to designate certain government officials. In Mexico, a "magistrado" (magistrate) is a superior judge who reviews cases seen by a judge in a second term if any of the parties disputes the verdict.
The role of judges in civil law systems is crucial. They interpret and apply the law, ensuring that the rights and duties outlined in the codes are upheld. Judges may also have the flexibility to adjust rules through interpretation and creative jurisprudence to adapt to social change, as civil law codes often contain general clauses that permit adaptation. In some countries, like the United States, there are different types of judges, including district judges, court of appeals judges (circuit judges), and magistrate judges. These judges handle civil and criminal cases, supervise the pretrial process, and determine whether the law was applied correctly in lower courts.
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Monetary compensation
Civil law involves disputes and the resolution of disputes between individuals and/or corporations. It usually involves some form of monetary compensation from one party to another. In civil law disputes, the parties involved are the plaintiff and the defendant or respondent. The plaintiff is the person who lodges the claim against the other party, seeking to regain something that may have been lost to them unlawfully. The defendant is the party against whom the claim is lodged, and they are required to comply with a set of obligations in how they behave and conduct the civil claim.
In civil law claims, each party gathers, files, and serves their evidence. This evidence is then heard before a magistrate or judge in court, who determines the legal issues and makes orders in favour of or against a party. Legal costs are then incurred, with the losing party usually ordered to pay the winning party's legal costs.
In civil cases, damages are the remedy that a party requests the court to award to make the injured party whole. Damage awards are typically monetary compensation to the harmed party. Damages are imposed if the court finds that a party breached a duty under contract or violated some right. The sum of money included in the damages can be compensatory damages, calculated based on the harmed party's actual losses, or punitive damages intended to punish the wrongdoer. Compensatory damages can be further classified into two types: actual and general. Actual damages are intended to provide the monetary amount necessary to replace what was lost and nothing more. General compensatory damages, on the other hand, include estimates of loss not involving actual monetary expenditure. Some courts use the "multiplier method" to calculate general damages, multiplying the sum total of actual damages by a number that signifies the seriousness of the injury. In contrast, the "per diem" method attaches a dollar value to each day a plaintiff suffers and adds up these values.
Civil damages are monetary awards granted when a person suffers a loss due to the wrongful or negligent actions of another party. They are owed to a winning plaintiff by the losing defendant in a civil case. The purpose of civil damages is to provide plaintiffs with resources to restore them to their pre-injury conditions, although a full restoration may not always be possible. Estimating liability in civil cases depends on the type of damages, with compensatory damages being relatively straightforward to calculate since they are equal to the plaintiff's costs, including legal fees. In contrast, punitive damages are often the most challenging to estimate, as they depend on the nature of the defendant's misconduct.
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Individual rights
Civil law, also called continental or Romano-Germanic law, is a legal system rooted in the Roman Empire. It is the most widespread legal system globally, practiced in about 150 countries. Civil law is primarily concerned with individual rights and interests, such as contractual interests, that have been violated by another individual or organisation. It is broken down into four fields: contract law, property law, family law, and tort law.
Contract Law enforces and interprets agreements between people, businesses, or groups related to the exchange of money, services, goods, or property. It covers the legal relationships between individuals, including natural and legal persons, and encompasses areas such as contracts, torts, family law, property, and trusts.
Property Law governs the different forms of ownership regarding personal and real (land) property. Family Law involves issues related to family relationships, including child custody, divorce, adoption, paternity, and emancipation.
Tort Law covers most civil suits and involves the law that protects and compensates people who have been injured by the recklessness or negligence of wrongdoers. Civil law disputes involve a plaintiff and a defendant or respondent and usually involve people and/or corporations resolving disputes involving money. The plaintiff is the person who lodges the claim against the other party, seeking to regain something that may have been lost unlawfully. The defendant is the party against whom the claim is lodged, and they are required to comply with a set of obligations in their behaviour and conduct of the civil claim.
In civil law systems, judges play a more investigative role, focusing on applying the law to the facts rather than interpreting prior rulings. The system is primarily legislative, but it allows room for the judiciary to adjust rules to social change and new needs through interpretation and creative jurisprudence. Civil law codes are easily accessible to citizens and provide a clear expression of rights and duties so that remedies are self-evident.
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Criminal law differences
The civil law system, also known as neo-Roman law, Romano-Germanic law, or Continental law, is the most prevalent legal system in the world, practiced in about 150 countries. Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law systems are characterized by their reliance on legal codes that function as the primary source of law, in contrast to common law systems, which rely on judicial precedent. Civil law deals with disputes and the resolution of disputes between people and/or corporations, typically involving monetary compensation from one party to another. Civil cases are initiated by a private party (the plaintiff) and are usually decided by a judge, with punishments almost always consisting of monetary awards.
Criminal law, on the other hand, deals with the regulation of conduct that the government, on behalf of society, considers against the interests of the community. Criminal cases always involve the Crown (government) bringing the case to court, with the prosecution representing the government in court. Criminal cases are prosecuted in criminal court and involve offenses against the state, even if immediate harm is done to an individual. Criminal cases are decided by a jury, and punishments for serious charges often consist of imprisonment and/or fines. Defendants in criminal cases are afforded significant protections, such as protection against illegal searches and seizures under the Fourth Amendment.
In terms of procedure, civil law claims involve each party gathering, filing, and serving their evidence, which is then heard by a Magistrate or Judge who determines the legal issues and makes orders. The losing party in a civil case typically bears the legal costs of the winning party, which is not the case in criminal law. While both civil and criminal cases can arise from the same conduct, only criminal charges can result in a prison sentence.
In summary, the key criminal law differences include the involvement of the government or Crown in prosecuting cases, the focus on offenses against the state or community, the reliance on jury decisions, the imposition of imprisonment or fines as punishment, and the robust protections afforded to defendants. Civil law, on the other hand, centers on disputes between private parties or corporations, the role of judges in deciding cases, and the emphasis on monetary compensation as a form of punishment.
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Frequently asked questions
The plaintiff, petitioner, claimant, or appellant, and the defendant or respondent. The plaintiff is the person who lodges the claim, and the defendant is the party against whom the claim is lodged.
The plaintiff is the person who has been wronged and undertakes the civil action by filing a complaint with the court and "serving" a copy of the complaint to the defendant. The plaintiff may seek monetary compensation or ask the court to order the defendant to stop the harmful conduct.
The defendant is the accused and can be a person, a group, or an organization. The defendant responds to the plaintiff's complaint and may file a counter-claim.
