大陆法系渊源于罗马,形成于西欧,主要 代表是法国和德国,其他国家和地区还有 瑞士、意大利、比利时、卢森堡、西班牙、 葡萄牙、荷兰、日本、整个拉J美洲、非 洲近东一些国家、美国路易斯安那州、加 拿大魁北克省等。 我国也属大陆法系国家
• 大陆法系渊源于罗马，形成于西欧，主要 代表是法国和德国，其他国家和地区还有 瑞士、意大利、比利时、卢森堡、西班牙、 葡萄牙、荷兰、日本、整个拉丁美洲、非 洲近东一些国家、美国路易斯安那州、加 拿大魁北克省等。 • 我国也属大陆法系国家
三、两大法系的比较 1. Different Ways of reasoning and Determining the bindina l eaal rules In civil law. the main In common law principles and rules are the law has been dominantly contained in codes and statutes. created by judicial decisions Civil law is based on the theory while a conceptual structure of separation of powers is often lacking whereby the role of legislator is to legislate, while the courts And the courts are given the should apply the law main task in creating the law Lawyers tend to be more ayers are considered to be conceptual more pragmatIc
• 三、两大法系的比较 • 1. Different Ways of Reasoning and Determining the Binding Legal Rules In civil law, the main principles and rules are contained in codes and statutes. Civil law is based on the theory of separation of powers, whereby the role of legislator is to legislate, while the courts should apply the law. Lawyers tend to be more conceptual. In common law, the law has been dominantly created by judicial decisions, while a conceptual structure is often lacking. And the courts are given the main task in creating the law. Lawyers are considered to be more pragmatic
2 Different roles of case law and precedent One of the main differences is the binding force of precedents The courts apply and interprete legal norms The courts are supposed not only to The case law does not have binding decide disputes between particular force parties but also to provide guidance as to how similar disputes should be The courts decisions are not binding settled in the future on lower courts in subsequent cases The interpretation of a legislation and it is not uncommon for courts to reach opposite conclusions in similar given by a court in specific case is binding on lower courts cases The courts do not creat the law but The courts decisions will make the only apply and interpret it basis for interpretation of legislation
2、Different Roles of Case Law and Precedent One of the main differences is the binding force of precedents. The courts apply and interprete legal norms. The case law does not have binding force. The courts decisions are not binding on lower courts in subsequent cases, and it is not uncommon for courts to reach opposite conclusions in similar cases. The courts do not creat the law, but only apply and interpret it. The courts are supposed not only to decide disputes between particular parties but also to provide guidance as to how similardisputes shouldbe settled in the future. The interpretation of a legislation given by a court in specific case is binding on lower courts. The courts decisions will make the basis for interpretation of legislation
3. General Characteristics of the two Major Legal Legal system Content Civil Law Common Law Theoretical basis Positive law Natural law Status of law Independent of govemment Superior to government Legal rules Based on general principle Based on specific circumstances Scope Private law Private law, Public law Basic source Codes Case law Most influenced by Legislators Judges Reasoning Deductive Inductive Procedural Inquisitorial adversarial Fact finder Judge Jury Use of case law as precedents Respected Required Constitutional review by Special agency or category of Regular courts(no written courts constitution in England Review ofgovernment agencies Special agency or category of Regular courts
• 3. General Characteristics of the Two Major Legal SystemLegal system Content Civil Law Common Law Theoretical basis Positive law Natural law Status of law Independentof government Superior to government Legal rules Based on general principles Based on specific circumstances Scope Private law Private law, Public law Basic source Codes Case law Most influencedby Legislators Judges Reasoning Deductive Inductive Procedural Inquisitorial Adversarial Fact finder Judge Jury Use of case law as precedents Respected Required Constitutional review by Special agency or category of courts Regular courts(nowritten constitution in England) Review ofgovernment agencies Special agency or category of courts Regular courts
四、国际商事交易中的法律风险 Legal risk of international Business transactions 1, Legal risk is risk from uncertainty due to legal actions or uncertainty in the applicability or interpretation of contracts, laws or regulations 2, Four categories of international business risks a Cultural and language b Currency CLegal and political d Analyzed transaction risks
四、国际商事交易中的法律风险 Legal Risk of International Business Transactions 1、Legal risk is risk from uncertainty due to legal actions or uncertainty in the applicability or interpretation of contracts, laws or regulations. 2、Four categories of international business risks: a.Cultural and language b.Currency c.Legal and political d.Analyzed transaction risks