The history of the development of equity, the difference between equity and common law

Difference Between Common Law and Equity:

1. The objects of adjustment are different, the objects of common law adjustment are all-round, involving almost all areas of law, and the objects of equity adjustment are limited, only involving the fields of private law that cannot be adjusted by the common law;

2. The sources are different, the common law is mainly based on customary law, and the law of equity is mainly based on Roman law;

3. The procedures are different, the procedures of the common law are complex and rigid, and the procedures of the equity law are simple and flexible;

4. The remedies are different, the common law remedies are only damages, and the equitable remedies are many.

The common law is a law other than the fundamental law, the common law must not contradict the fundamental law, and the law of equity is a compensatory system for the common law, so when the rules of the two conflict, the object of adjustment of the common law is all-round, involving almost all areas of the law; The object of equitable adjustment is limited, involving only different sources in the field of private law that cannot be adjusted by the common law.

Legal basis

Legislation Law of the People's Republic of China

Article 7: The National People's Congress and the Standing Committee of the National People's Congress exercise national legislative power. The National People's Congress enacts and amends criminal, civil, state-owned and other basic laws. The Standing Committee of the National People's Congress formulates and amends laws other than those that shall be enacted by the National People's Congress; When the National People's Congress is not in session, some supplements and amendments are made to laws enacted by the National People's Congress, but they must not contradict the basic principle of the law.

Article 8 The following matters can only be enacted by law:

1) Matters of national sovereignty;

2) The formation, organization, and powers of all levels of people's congresses, people's courts, people's courts, and people's procuratorates;

3) The system of regional ethnic autonomy, the system of special administrative regions, and the system of grassroots mass autonomy;

4) Crimes and punishments;

5) Compulsory measures and punishments for deprivation of civil and political rights or restriction of personal liberty;

6) The establishment of taxes, the determination of tax rates, and the management of tax collection and other basic tax systems;

7) the expropriation and requisition of non-state-owned property;

8) the basic civil system;

9) the basic economic system and the basic systems of finance, customs, finance and foreign trade;

10) Litigation and arbitration systems;

11) Other matters on which laws must be enacted by the National People's Congress and its Standing Committee.

Although common law and equity.

Both are in the form of precedents, and their generation relies on royal power, but there are still differences between the two:

1) The object and content of the adjustment are different. The object of common law regulation is all-encompassing, involving almost all areas of the law, mainly including criminal law and contract law.

Civil Liability Law, etc.; The objects of equitable adjustment are limited and only cover areas that cannot be adjusted by the common law, mainly including corporate law.

Inheritance law, bankruptcy law.

Wait. 2) the sources are different, and the common law is mainly based on customary law; The law of equity is based on Roman law.

3) the litigation procedure is different, the common law procedure is more complex and rigid than that of Hiroshi Mori, and there is a jury system, and the case is tried by oral defense; The procedure of equity is relatively simple and flexible, and there is generally no jury and a written trial

4) The remedies are different, the common law remedies are only damages, including monetary compensation and the return of property, which are usually based on monetary compensation; There are many remedies in equity, in addition to damages, there are also performance according to contract, injunction, etc.

5) The legal terminology is different.

Legal analysis: (1) The objects of adjustment are different, and the objects of common law adjustment are all-round, involving almost all areas of law; The object of equitable adjustment is limited and involves only areas of private law that cannot be regulated by the common law. (2) the sources are different, and the common law sources are mainly common law letters; The law of equity is based on Roman law.

3) the procedures are different, and the common law procedures are complex and rigid; The process of equity is simple and flexible. (4) the remedies are different, and the common law remedies are only damages; There are many equitable remedies.

Legal basis: "Criminal Law of the People's Republic of China" Article 101 The general provisions of this Law shall apply to other laws that have provisions on criminal punishments, except where other laws have special provisions on slippery and lenient provisions.

Mr. Xu Guodong in his "Interpretation of the Basic Principles of Civil Law".

The book proposes that the civil law system.

There is also equity.

Why does China have a law of equity, but no one knows it? The reason is that China does not have a judge who is responsible for applying the law of equity, so it leads to the illusion that there is no law of equity in practice.

Equity is to make up for the shortcomings of normative provisions, and the legal principles applicable to achieve individual justice are the basic principles of civil law. In judicial practice, in order to make individual judgments that conform to the fairness and justice of the law, it is necessary for the magistrates not only to have a profound foundation in legal philosophy, but in today's legal education in China, the identity of departmental law and legal philosophy is artificially separated.

The philosophy of law belongs to the philosophy of law, and the departmental law belongs to the departmental law, which leads to the return of what is said and the return of what is done, and there are half-barrel masters everywhere, so they cannot take on the big responsibility.

This issue is more complicated, and I suggest you take a look at the 18 articles of the amendments to the Procedural Law that we have drafted. There is the true meaning of equity.