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civil law,as used in this article, a modern legal system based upon Roman lawRoman law,
the legal system of Rome from the supposed founding of the city in 753 B.C. to the fall of the Byzantine Empire in A.D. 1453; it was later adopted as the basis of modern civil law.
..... Click the link for more information. , as distinguished from common lawcommon law,
system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that
..... Click the link for more information. . Civil law is based on written legal codes, a hallmark of the Roman legal system, in which disputes were settled by reference to a written legal code arrived at through legislation, edicts, and the like; common law is based on the precedents created by judicial decisions over time. The tendency in civil law is to create a unified legal system by working out with maximum precision the conclusions to be drawn from basic principles. The civil law judge is bound by the provisions of the written law. The traditional civil law decision states the applicable provision from the code or from a relevant statutestatute,
in law, a formal, written enactment by the authorized powers of a state. The term is usually not applied to a written constitution but is restricted to the enactments of a legislature.
..... Click the link for more information. , and the judgment is based upon that provision.
With a few exceptions, the countries on the continent of Europe, the countries that were former colonies of such continental powers (e.g., the Latin American countries), and other countries that have recently adopted Western legal systems (e.g., Japan) follow civil law. It is also the foundation for the law of Quebec prov. and of Louisiana. Modern countries that do not adhere to the civil law (this includes Great Britain and all the United States except Louisiana) for the most part were colonized by England and apply the system of common law prevailing there.
In general usage, civil law also means the rules that govern private legal affairs; in this sense it contrasts with criminal lawcriminal law,
the branch of law that defines crimes, treats of their nature, and provides for their punishment. A tort is a civil wrong committed against an individual; a crime, on the other hand, is regarded as an offense committed against the public, even though only one
..... Click the link for more information. and, to a lesser degree, public law.
The law that had been in force throughout the Roman Empire when it controlled most of Europe and the Middle East was to some extent supplanted by Germanic lawsGermanic laws,
customary law codes of the Germans before their contact with the Romans. They are unknown to us except through casual references of ancient authors and inferences from the codes compiled after the tribes had invaded the Roman Empire.
..... Click the link for more information. when Germanic tribes carried out their great conquests. The principle of personal (as opposed to territorial) law was observed by the invaders, however, and thus the former Roman subjects and their descendants were permitted to follow the Roman law (leges romanorum) in their affairs with one another. The great Corpus Juris CivilisCorpus Juris Civilis
, most comprehensive code of Roman law and the basic document of all modern civil law. Compiled by order of Byzantine Emperor Justinian I, the first three parts appeared between 529 and 535 and were the work of a commission of 17 jurists presided over by the
..... Click the link for more information. of Justinian, compiled in the 6th cent. A.D. and in use in the Byzantine Empire, served also to keep the old law alive. The medieval church, too, was an important guardian of Roman law, for much of the law used by the church was based upon Roman principles and concepts. Germanic law, although at first adequate, did not have legal concepts that suited the commercial requirements of the late Middle Ages, and there was then heavy borrowing of Roman ideas.
As part of a concurrent revival of interest in classical culture, the late 11th and the 12th cent. saw the resumption of systematic study of Roman law, chiefly in N Italy (notably at Bologna, where IrneriusIrnerius
, c.1055–c.1130, Italian jurist and founder of the law school (c.1088) at Bologna, which became the center of legal scholarship in Europe. Though little is known of his early life, it is generally agreed that he became a professor of rhetoric and dialectic at an
..... Click the link for more information. gave the first lectures in Roman law), in S France, and in Spain. Extensive glosses and commentaries on the Corpus Juris Civilis and on other classical texts were produced. Through the agency of scholars and of judges trained in Roman law principles, these principles (though strongly modified) came to be observed in national courts in all classes of legal disputes, although for a long time courts of local jurisdiction continued to enforce customary law. Scholars of Roman law enjoyed increasing prestige; by 1500 the Corpus Juris Civilis had become the basis of legal science throughout Western Europe. The next step, emulating the systematizing of Justinian, was to state these principles in exact, ordered form, i.e., as a codecode,
in law, in its widest sense any body of legal rules expressed in fixed and authoritative written form. A statute thus may be termed a code. Codes contrast with customary law (including common law), which is susceptible of various nonbinding formulations, as in the legal
..... Click the link for more information. . The Code NapoléonCode Napoléon
or Code Civil
, first modern legal code of France, promulgated by Napoleon I in 1804. The work of J. J. Cambacérès and a commission of four appointed by Napoleon I in 1800 was important in making the final draft.
..... Click the link for more information. (1804), the most famous of such works, had many successors.
In England there was some interest in Roman law during the Renaissance; there, however, the early centralization of the legal system and the existence of an independent class of lawyers with an interest in the law as administered in the courts ensured the triumph of the common law. Nevertheless, civil law influenced the common law in the fields of admiralty law, testamentary law, and domestic relations, and civil law became part of the basis for the system of equityequity,
principles of justice originally developed by the English chancellor. In Anglo-American jurisprudence equitable principles and remedies are distinguished from the older system that the common law courts evolved.
..... Click the link for more information. .
See A. T. Von Mehren, The Civil Law System (1957); A. N. Yiannopoulos, ed., Civil Law in the Modern World (1965); A. Watson, The Making of the Civil Law (1981).
the branch of law that regulates property relations and the personal nonproperty relations connected with them. In some instances provided for by statute, the civil law also regulates other personal nonproperty relations. In the USSR and other socialist countries the parties to relations that are regulated by civil law are state enterprises and other state organizations, kolkhozes and other cooperative organizations, and citizens. In instances provided for by the law, other organizations may also be parties to these relations. Foreign citizens—with specific exceptions—may also acquire and exercise civil rights and liabilities.
Soviet civil law regulates not only property relations that arise among the aforementioned parties within the domestic economy of the USSR but also foreign trade transactions, if the trade deal is made in the USSR and the applicability of foreign civil legislation to the transaction has not been stipulated by agreement of the parties.
The basic object of regulation by civil law is property relations—that is, relationships involving the possession, use, and disposition of the means of production and consumer goods. The basis of property relations in the USSR and other socialist countries is the socialist system of production relations, which is based on socialist ownership of the instruments and means of production. Soviet civil law does not regulate all property relations, but only those that originate in socialist society in connection with the use of the commodity-money form in the process of building a communist society. The use of the commodity-money form and consequently of commodity equivalent exchange relations (for example, in buying and selling or delivery of goods) within the framework of a planned socialist economy requires the recognition of equality (equal opportunities) between the participants in commodity exchange or commercial relations. As long as the commodity-money lever is used in socialist economy, the basic and determining category of property relations regulated by civil law will be exchange relations. However, civil law also regulates relations that are based on the equal standing of the parties but that arise from gratuitous presentation of property (for example, gifts).
Relations arising from acts of economic administration between agencies regulating the state plan on one side and state enterprises subordinate to them on the other are regulated not by civil but by administrative law. even though these acts are directed at property goals (for example, the act of distributing the means of capital construction among enterprises by the agencies of economic administration or the act of authorizing enterprises to acquire raw and other materials and equipment through centralized allocation).
Among the categories not regulated by civil law are family, labor, and agricultural relations based on membership in kolkhozes and matters involving taxes and the budget. (Although these categories concern property relations to some degree, they are not commodity relationships.)
The parties to relations regulated by civil law are distinguished from each other by their respective property rights. Although the Soviet state is the single and only subject of the right of socialist state ownership, it conducts the practical administration of its property through state enterprises and other state organizations. A certain portion of state property is allocated to each state enterprise or organization, in order that it may fulfill the economic production goals and other tasks assigned to it. Within the framework defined by the law, each organization possesses, uses, and disposes of state property in accordance with its goals under the economic plan and the purpose of the property. This means that state organizations are subjects of property rights and obligations as legal persons.
The civil law secures and protects the relative independence of state enterprises in their economic productive activities and property relations. The growing significance of the civil law is associated in particular with the economic reform that has been implemented in the USSR on the basis of the decisions of the September (1965) Plenum of the Central Committee of the CPSU and the Twenty-third Congress of the CPSU. The reform broadened the use of commoditymoney levers and material incentives in the work of enterprises, which entailed an increase in the regulation of their activity by civil law.
The government organizations (institutions) operating under the state budget (estimated financing) for the implementation of their administrative and social-cultural tasks may enter into property relations as subjects of a civil legal relationship, because each of these organizations has an independent budget estimate, which is separate from the estimate of every other state budget organization.
Every kolkhoz (or other cooperative organization) is an independent cooperative owner. Thus, kolkhozes and cooperatives are subjects of civil law. For the same reason, public organizations as property owners are also parties to relationships under civil law.
The USSR also recognizes and protects the personal ownership of consumer goods by citizens. In acquiring and using the property that they own under the right of personal ownership, citizens enter into property relations regulated by civil law with socialist organizations and with other citizens.
Soviet civil legislation proceeds from the principle of uniformity in regulating socialist property relations, irrespective of the composition of the parties involved. The uniformity of the legal regulation of socialist property relations does not exclude but presupposes differentiation in this regulation, with peculiarities in the situation of different subjects of civil legal relationships. There are rules in civil law that apply only to socialist organizations (for example, the rules concerning delivery contracts and independent-work contracts for capital construction). In some legal relations one of the parties must be a citizen (for example, contracts for the lease of housing). In addition, the peculiarities of the situation of different subjects of civil law are taken into consideration in the rules on legal acts and the limitation of actions, and other legal questions.
The civil law also regulates private nonproperty relations that are connected with property (for example, copyright law and the law of invention). In instances provided for by the law, the civil law regulates personal nonproperty relations (for example, relations involving honor and reputation).
Property and personal rights that have been violated are protected by civil law through various means, among which the most basic is the restoration of the condition that existed before the right was violated. If restoration in kind is not possible, the injured person receives monetary compensation (compensation for damages), insofar as property relations are concerned.
As a rule, the civil legal rights of citizens and kolkhozes are protected by adversary proceedings before a court. The civil legal rights of other socialist organizations are protected by arbitration and, in instances provided for by the law, by mutually agreed arbitrators and comrades’ courts, trade unions, and administrative agencies.
On the whole, Soviet civil law promotes the strengthening and development of the socialist economy, economic accountability, discipline in contractual and planning relations among socialist organizations, protection of the material and cultural interests of the citizens, fair balancing of their interests against the interests of the entire society, and development of creative initiative in science and technology and literature and art.
The sources of Soviet civil law are the Basic Principles of Civil Legislation of the USSR and the Union Republics, which were approved by the Supreme Soviet of the USSR in 1961 and have been in force since May 1, 1962. On the basis of these principles, civil codes were drawn up and adopted in the union republics between 1963 and 1965. There are also a large number of all-union and republic civil law regulations that specify the rules of the all-union principles of civil legislation and the civil codes (for example, the Statutes on Deliveries of Productive Technical Goods and Consumer Goods). There are also statutes that regulate relations that are objects of civil law but are not included in the principles of civil legislation and civil codes.
The civil law of bourgeois countries is based on private ownership of the means of production, and it regulates the property and personal relations of capitalist society in the interests of the ruling class of the bourgeoisie. In the period of industrial capitalism—the epoch of free competition—the civil codes of bourgeois countries paid attention primarily to the protection of individual property and the freedom to dispose of it, as well as to unlimited freedom of contracts in the sphere of economic turnover. In the period of state monopoly capitalism, during which the participation of the state in the sphere of civil law relations has increased, civil legislation ensures primarily the protection of the large-scale private property of associated capitalists—the monopolistic corporation—to the disadvantage of small and medium proprietors, and civil legislation essentially limits the formal freedom of civil contracts. The monopolistic corporations engage in such practices as dictating conditions to their economically weaker business partners and fixing prices. So-called dictated contracts, merger contracts, and the “standard form” law have been developed. The other contracting party has no alternative but to merge under the standardized conditions dictated to him, as expressed in a standard contract form. The civil codes and statutes often contain so-called elastic clauses that permit the court or administrative agency to interpret them as necessary. At the same time, regarding civil legal capacity, the capitalist countries retain formal inequality based on race, sex, and so forth.
REFERENCESAlekseev, S. S. Predmet sovetskogo sotsialisticheskogo grazhdanskogo prava. Sverdlovsk, 1959. (Uchenye trudy Sverdlovskogo iuridicheskogo instituta, vol. 1, seriia Grazhdanskoe pravo.)
Ioffe, O. S. Sovetskoe grazhdanskoe pravo. Moscow, 1967.
Bratus’, S. N. Predmet i sistema grazhdanskogo prava. Moscow, 1963.
S. N. BRATUS