Which legal system does China belong to? Which countries does the civil law system specifically include?

China belongs to the civil law system.

Continental law system

(A) the formation of the civil law system

1. What is the civil law system? Civil law system is also called Roman law system, statutory law system, civil law system or Roman-Germanic law system (because its historical origin is Roman law and Germanic law, in addition to church law, commercial law and city law). It is a legal system with a long history, wide distribution and far-reaching influence in capitalist countries. Represented by France and Germany in continental Europe, it has gradually developed into a worldwide legal system on the basis of Roman law and other legal elements. Within the civil law system, different countries and regions have different legal systems, and there are generally two branches-the Latin branch represented by the French Civil Code and the Germanic branch represented by the German Civil Code.

2. The formation of civil law system is based on Roman law.

(1) In the heyday of Rome, the Roman rulers expanded their territory by force and forcibly applied Roman law. The residents in the conquered areas voluntarily adopted Roman law because of its development and perfection, making Roman law "the first worldwide law in the society of commodity producers".

(2) After the Germanic invasion of Rome, the Germanic law adopted the principle of individualism, which preserved the Roman law. The code compiled by Germanic countries was influenced by Roman law. In the 9th century, with the development of feudal system, the personal theory of law no longer applies, and Roman law and Germanic law merged.

(3) After12 century, the revival of Roman law rose, and the study of Roman law was combined with the actual needs of society and became the authoritative supplementary law of continental countries in Western Europe. Roman law, which has been transformed and developed, has become the common law in Europe, and has the same characteristics and legal traditions, thus laying the foundation for the civil law system.

(4) After the victory of the bourgeois revolution, many western European countries established and consolidated the capitalist system, and the legal systems of these countries further developed with the development of capitalist economy, politics and culture and the exchanges between countries. First of all, in France, under the impetus of bourgeois revolution, under the guidance of classical natural law and rationalism, and under the direct influence of Roman law, a model of formulating a complete statutory law system was created. The Code of France has become a model for European countries to establish their own legal systems, marking the establishment of a modern continental law system model. Subsequently, Germany enacted a series of codes on the basis of inheriting Roman law and absorbing French legislative experience. The German Code has become a typical representative of the era when capitalism developed from a free economy to a monopoly economy.

(5) Because the civil law represented by France and Germany has adapted to the needs of the whole capitalist society, and because it is easy to spread in the form of strict written law, the civil law system has spread across Europe and all over the world since the19th century and the 20th century.

(B) the characteristics of the civil law system

1. In the historical origin of law, the civil law system developed under the direct influence of Roman law. The civil law system not only inherits the written law tradition of Roman law, but also absorbs the system, concepts and terms of Roman law. For example, the French Civil Code is a ladder based on law, while the German Civil Code is a collection based on theory.

2. In legal form, there is generally no case law in civil law countries, and important departmental laws are codified, supplemented by separate laws and regulations, forming a relatively complete legal system. The natural law thought and rationalism advocated by bourgeois enlightenment thinkers are one of the reasons for the codification of civil law countries. 179 1 The "Declaration of Human Rights" in the French Constitution clearly declared that everyone's natural rights can only be determined by statute law. The thoroughness of the bourgeois revolution in continental European countries, represented by the French Revolution, was manifested in law by launching a large-scale codification movement. The strict distinction between legislation and judicature requires that the code must be complete, clear and logical. Once the code is promulgated, judges must faithfully implement it, and the old laws on similar issues will lose their effectiveness. The written statutory system includes: Constitution, administrative law, civil law, commercial law, criminal law, civil procedure law and criminal procedure law.

3. In terms of the role of judges, civil law requires judges to handle cases according to law and have no legislative power. Civil law countries have a clear division of labor between legislation and judicature, emphasizing the authority of written law, and the effectiveness of written law takes precedence over other legal sources. Moreover, all laws are divided into public law and private law, with a complete legal system and clear concepts. Judges can only strictly enforce the law, and may not create laws or violate the spirit of legislation without authorization.

4. Civil law system generally adopts the dual-track system of court system, and attaches importance to the distinction between substantive law and procedural law. The civil law system generally adopts the dual-track system of separating ordinary courts from administrative courts, and judges are appointed by the government after examination, strictly distinguishing substantive law from procedural law, and generally adopting inquisitorial litigation.

5. The form and method of legal reasoning is deductive method. Because judicial power is greatly limited, laws can only be formulated by representative legislature, and judges can only judge cases with established laws. Therefore, in civil law countries, the role of judges is to find the applicable legal provisions from the existing legal provisions, and link them with the facts to infer the inevitable results.

The modern French legal system was established in the Napoleonic era, which not only laid the foundation for the later development of French capitalism, but also had a great influence on the legal system of modern western countries. France is the country that promulgated the most constitutions in modern times, and the Declaration of Human Rights established a series of bourgeois legal principles. France is the earliest and most developed country in western countries. Implementation of French Civil Code 65438 to 0804

This paper introduces the basic principles of bourgeois civil law, which marks the formation of civil law system and is a milestone in the development of civil law after Roman law. French Criminal Code 18 10 is the first criminal code in modern times, which embodies the criminal law principles of the bourgeoisie. French procedural law laid the foundation of civil law litigation system. French law is the representative of civil law system and occupies an important position in the history of world legal system.

(A) the formation and development of the French legal system

1. Formation and development of feudal legal system

The legal system in the feudal period of France generally refers to all the laws of the Kingdom of France that lasted for nearly 1000 years from the first half of the 9th century to the second half of the 8th century. The symbol of its beginning time is the division of Frank Charlemagne's kingdom in 843 AD.

1789 French bourgeois revolution broke out. In the formation and development of French feudal legal system, it went through three stages, namely

From the 9th century to13rd century, customary law was dominant, from13rd century to16th century, customary law became culture, and from16th century to18th century, royal legislation became the main source of law, which laid the foundation for the formation and development of modern French bourgeois legal system.

2. The establishment of the bourgeois legal system

After the victory of French bourgeois revolution, the feudal system was basically destroyed. Because the French Revolution was thorough and guided by a set of mature ideological theories, the legal system established after the Revolution was relatively systematic and complete, which typically reflected the interests of the bourgeoisie and had a great influence on the establishment and development of legal systems in other capitalist countries. From 65438 to 0799, Napoleon staged a coup. During Napoleon's reign, in order to affirm the victory of bourgeois revolution, safeguard the private property system, consolidate bourgeois rule and eliminate the phenomenon of disunity of laws, Napoleon personally led large-scale legislative activities and compiled a series of codes. They are: 1804 French Civil Code, 1806 Civil Procedure Law, 1807 Commercial Code, 1808 Criminal Procedure Law and18 Criminal Code. Together with the French Constitution, these five codes constitute the "six laws" system of France. The appearance of the six French laws marked the formation of the French bourgeois legal system and pushed the legislative activities of modern France to a peak. It should be pointed out that the enactment of Civil Code and Commercial Code not only provided France with the first civil law and commercial law, but also provided many countries with civil law system with a legislative model of separation of civil law and commercial law.

Anglo-American legal system:

First, the concept of Anglo-American legal system

Anglo-American legal system, also known as common law system, refers to the legal system developed on the basis of English law since the Middle Ages, especially its common law. Common law is a concept corresponding to equity, church law, customary law and statute law. Because the common law has the greatest influence on the whole legal system, the common law system is also called the common law system. American law originated from British tradition, but it has developed independently since the late19th century, which has exerted great influence on world law. The distribution of common law system mainly includes Britain (except Scotland), the United States (except Louisiana), Canada (except Quebec), Australia, New Zealand, India, Pakistan, Singapore, South Africa and China. The spread of English legal tradition was mainly achieved through colonial expansion.

Second, the evolution of Anglo-American legal system

(A) the historical evolution of British law

1, the formation of common law

(1) Anglo-Saxon law: Britain was controlled by Anglo-Saxons from the 5th century to 1066. Most of the laws implemented at that time were customary laws, which had little influence on English law.

(2) The origin of common law: 1066 After the Duke of Norman conquered England, in order to consolidate his rule, he implemented the system of land enfeoffment and centralization. Among them, the command meeting is an important institution of centralized rule. This institution is a deliberative body attended by the king's cronies, bishops and nobles. It mainly assists the king in handling legislative, administrative and judicial affairs. Later, the institutions dealing with judicial affairs gradually became independent. By the time we arrived in Henry III, the Senate had established three royal high courts, namely, the Financial Court, the General Litigation Court and the Throne Court, to handle major cases directly related to the interests of the royal family. Because the Normans didn't have their own laws before, their laws were formed through the judgments of these courts, that is, case law. These judgments are binding on the judgments of the local courts. With the expansion of the jurisdiction and influence of the royal court. Its precedent has had a great influence on the laws of the whole country. The case law of the Royal Court is the common law applicable to England. Mainly for the common law in various places. In the time after the appearance of the royal court, there appeared a situation in which the royal court coexisted with local courts and church courts. Local courts (including county courts and Baihu courts) mainly apply customary law, while church courts mainly apply church law, which mainly governs marriage, family, inheritance and adultery. The conflict between the three is inevitable. The royal court expanded its influence by issuing an order to start litigation. The so-called litigation commencement order means that the plaintiff can ask the king to uphold justice and then issue a writ through the minister of the king of England. The content of the writ is to ask the county sheriff to order the defendant to meet the plaintiff's requirements or to be tried in the royal court.

2. The rise of equity.

The fundamental reason for the rise of equity is that the writ system and mechanical litigation procedures of ordinary courts are increasingly unsuitable for the needs of reality, especially the development of capitalist relations of production. Many people seek justice from the Privy Council and Congress. These disputes are handled by the Privy Council Minister in charge of judicial affairs. 1474, the Privy Council Minister made the first judgment with his own honor. With the increase of cases. The institution eventually became independent and became a court of equity alongside the Royal Court. The court of equity applies completely different legal rules from ordinary courts when trying cases. The law developed from this becomes equity. Therefore, the rise of equity is mainly to meet the requirements of capitalist relations of production. At the same time, it was also a measure to strengthen the rule of the British king, who wanted to use the equity court to restrict the ordinary courts.

3. Necessary supplement of written law.

In addition, it should be pointed out that in Britain, in addition to common law and equity, statutory law has also developed to a certain extent, the most typical of which is the Magna Carta and the three Westminster Acts in the period of Edward I of England. And Henry VIII's real estate usufruct act.

4. The bourgeois revolution and the formal formation of the common law tradition.

With the victory of the bourgeois revolution, in order to meet the needs of the development of capitalism, English law has been reformed, which is mainly manifested in the conflict, compromise and unification of (1) common law and equity. On the eve of the Great Revolution, the struggle between common law and equity was the expression of the struggle between Congress and monarch. With the victory of the revolution, common law and equity compromise each other and develop harmoniously. By 1873 and 1875, with the promulgation of two judicial laws, ordinary courts and equity courts merged, but the coexistence of common law and equity continued to exist. (2) Restrictions on the jurisdiction of the church courts. 1857, the jurisdiction of church courts over secular cases was abolished, and divorce courts and probate courts were established. (3) A large number of written laws have appeared. Including public law laws, such as the Bill of Rights, the law of succession to the throne, the law of habeas corpus, the unified procedure law, the common law procedure law, the company law, the partnership law, the negotiable instrument law, the goods sale law, the infringement of personal status law, the theft law and so on. The increase of statute law marks the rise of parliament's status. This trend has continued until now. It should be noted that these laws are all one-way laws.

(B) the historical evolution of American law

1, colonial law

From 1607 to 1776. In the early colonial period, namely17th century, English law had little influence on the North American colonies, and the applicable laws at that time were mainly the rough local laws of the colonies. However, in the18th century, Britain strengthened its control over the North American colonies and enforced British laws by coercive means. At the same time, more and more people are familiar with English law, which has played a great role in the spread of English law in North America.

2. The formation of American legal tradition.

1776, the United States began to have its own laws after independence. By the19th century, the American common law tradition was finally established. The most fundamental reason is that Americans are British immigrants with the same language and tradition. Moreover, English law had a certain influence on American law during the colonial period. Coupled with the spread of legal theory. America finally accepted the tradition of common law. However, American law also shows some characteristics different from English law. If a written constitution is adopted, the written law will occupy a greater proportion. Louisiana retains the tradition of civil law. It simplifies the proceedings and eliminates the difference between common law courts and equity courts. After the American War of Independence, its law became an independent branch of the common law system.

Third, the main characteristics of the Anglo-American legal system

(a) In the way of thinking and operation of law, the common law system uses the distinguishing technique. The mode of this method can be summarized as: 1. Inductive method is used to summarize the legal facts in previous cases; 2. Inductive method is used to conclude and judge the legal facts of the case; 3. Divide the legal facts in the two cases into substantive facts and non-substantive facts; 4. Compare and analyze whether the substantive facts of the two cases are the same or similar. 5. Find out the rules or principles contained in the precedent. 6. If the substantive elements in the two cases are the same or similar, the rules or principles contained in the precedent can be applied to the pending case according to the principle of following the precedent. There are three ways to deal with precedent: 1, follow precedent; Generally speaking, the lower court should follow the precedent of the higher court, and the court of appeal should also follow its previous precedent. 2. Overturn the precedent. In the United States, both the federal Supreme Court and the state supreme courts have the right to overturn previous judgments. 3. Avoid precedents; It is mainly applicable to the case that the lower court is unwilling to apply the precedent but is unwilling to publicly overturn it, and this precedent can be avoided on the grounds that there are substantial differences between the first and second trial cases.

(2) In the legal form, case law plays an important role. Traditionally, the case law of Anglo-American law system is dominant, but its statute law has been increasing since the 9th century, but the statute law is still restricted by the interpretation of case law. Case law generally refers to the legal principles or rules established in the judgment of the High Court. Such principles or rules are binding or influential on future judgments. Case law is also a statute law. Because these rules are created by judges when trying cases, they are also called judges to make laws.

In addition to case law, there are a certain number of written laws and some codes in common law countries. Such as the Uniform Commercial Code and the Constitution of the United States. However, compared with the civil law system, its statutes and codes are still few, and its influence on the legal system is far less than that of case law.

On the relationship between case law and statute law, it is an interactive and mutually restrictive relationship. Statutory law can change case law. At the same time, in the application process of statute law, case law can amend statute law through the interpretation of judges. If this interpretation deviates too much from the intention of legislators, it will be changed by legislators in the form of written law.

(3) In terms of legal classification, the Anglo-American legal system has no strict concept of departmental law, that is, there is no systematic and logical legal classification, and their legal classification is more practical. The reasons are as follows: 1. Anglo-American legal system attached great importance to writ and litigation form from the beginning, and the division of this litigation form itself lacked logic and systematicness, which hindered the scientific research of legal classification by British jurists. 2. Anglo-American legal system emphasizes case law, but opposes codification. Case law emphasizes practical experience and ignores abstract generalization and theoretical discussion. 3. The common law system is divided into ordinary courts and equitable courts in court setting. From a political point of view, the division between common law and equity is the expression of the struggle between the parliament and the king, and from a legal and technical point of view, equity is the modification and supplement to the defects of common law. Equity is based on common law. The value of his explanation lies in pointing out the conflicts and contradictions between universal justice and individual justice. There is no difference between ordinary courts and administrative courts. Therefore, there is no obvious difference between cases involving political power and ordinary private cases. This also hinders the classification of laws, especially the formation of concepts of public law and private law. 4. In the development of Anglo-American legal system, judges and lawyers are the main driving forces. Moreover, the mode of education is mainly apprenticeship, which determines that they are more related to specific cases. And despise the legal classification in the abstract theoretical sense. In addition, as mentioned above, the common law system has a long tradition of dividing common law and equity. Although there is no distinction between common law courts and equity courts at present, the difference between common law and equity still exists today.

(4) In the aspect of legal education, the common law system mainly focuses on American vocational education. Students have obtained a bachelor's degree before entering school, and the teaching method is case teaching method, which attaches importance to cultivating students' practical operation ability. After graduation, the doctor of law degree (J, D) is awarded, and each school has greater autonomy and is not restricted by the educational administrative organ. In Britain, legal education in universities is somewhat similar to that in continental law system, and it also pays attention to systematic teaching. But before they graduate from college, they have to go through the training of law school or bar association. At this time, the education was mainly vocational education, which was still influenced by the tradition of apprenticeship education.

(5) in the legal profession. Professional mobility is great, and judges, especially judges in federal courts, are generally lawyers. Lawyers are very active in politics. The social status of judges and lawyers is also higher than that of civil law.