The common law system and the Chinese legal system are used respectively

Possible approach for non-compliance.

1. Establishment of liability for damages.

The civil law adopts the principle of fault liability, holding that three conditions must be met for the establishment of liability for damages: (1) there must be the fact of damage. The fact of the damage that occurred must generally be proved by the party requesting compensation; (2) There must be a cause attributable to the debtor.

In principle, the debtor is only liable for losses caused by its intention or negligence; (3) There must be a causal relationship between the cause of the damage and the result of the damage, i.e., the damage is caused by a cause for which the debtor is responsible.

The common law adopts the principle of no-fault liability. According to the common law interpretation, as long as one party breaches the contract, the other party can file a lawsuit for damages, which is not conditional on whether the breaching party is at fault or not, nor whether actual damage has occurred. If the result of the default has not caused damage, the creditor is not entitled to substantial damages, but he may claim nominal damages, i.e. legal recognition that his legal rights have been violated.

2. Form of damages.

Civil law generally provides for restitution as the principle with monetary compensation as an exception. In the case of damage liability under § 249 (1) of the German Civil Code, the damage shall be restored to the original state in which it occurred. Monetary compensation may be claimed only in a few specific cases where paragraph 2 of the article arises.

In common law, damages are mainly used to compensate the victim for the losses suffered by the victim in monetary terms, and it is the first remedy. The common law principle of compensation for actual loss is "to return the injured party to the position in which the contract was performed as far as possible with money". [

3. Definition of the scope of damages.

The laws of civil law countries generally provide that the recoverable losses should include the actual losses and the benefits to be gained as a result of the breach. Article 1149 of the French Civil Code, for example, provides that "damages payable to creditors shall generally include losses suffered by creditors and lost gains, subject to the following limitations". "The so-called loss is the benefit provided for in the contract that has been damaged due to causes attributable to the debtor; Accruable benefits are the benefits that the creditor would have been able to receive if the contract had been performed.

The provisions of the German Civil Code are similar to those of France.

According to the principles of common law, there are three types of damages that can be claimed for breach of contract: (1) direct damages, which refers to the loss directly caused by the breach of contract; (2) Ancillary damages refer to the incidental losses borne by the injured party in addition to the direct losses caused by the breach of contract, such as the expenses incurred for the storage, transportation, inspection and other expenses of the goods; (3) Indirect damages refer to the losses caused by the consequences of the breach of contract, mainly referring to the personal injury or property damage caused by the breach of contract by one party. The above three types of damages are only a general generalization, and certain legal principles must be followed in practice.

Claim for liquidated damages, and you can also request that the contract can be cancelled.

The most important thing is that you don't describe it.

The common law system is characterized by the following:

1. Characteristics of the civil law system:

1) Comprehensive inheritance of Roman law: absorbing many principles and systems of Roman private law, such as giving certain people specific rights and behavioral capacity; the absoluteness of ownership, the various ways of acquiring property, the right of a person to certain things owned by others; torts and the contract system; the system of combining testamentary succession and statutory succession, etc. It also accepted the whole set of technical methods of the Roman jurists, such as the division between public law and private law, the private law system of personal law, property law, and procedural law, the classification of property rights and claims, ownership and possession, use, usufruct rights, easements, and ways of thinking and reasoning.

2) Codification, abstraction and generalization of legal norms. (3) Clarify the division of labor between legislation and justice, emphasize the authority of law-making, and generally do not recognize the law-making function of judges. (4) Jurisprudence plays an important role in promoting the development of law

Jurisprudence has created the theoretical basis for codification and legislation, such as the theory of natural law, the doctrine of separation of powers, the theory of the nation-state, etc., and the task of adapting the law to the needs of social development is completed by jurists. <>

2. The common law system, also known as the common law system and the English law system, is a general term for the law developed on the basis of English law since the Middle Ages, especially on the basis of common law. The common law system first originated in the form of precedents of common law, which gradually developed after the Norman invasion of England in the 11th century.

Common law systems include English law and American law. The English legal system adopts a non-volcanic constitutional system and a unitary system, and the courts have it"The right of judicial review"。The U.S. legal system uses a written constitutional system and a federal system, and the courts have a case-by-case basis to determine whether it is constitutional"The right of judicial review"The main agitated struggle for civil rights was adopted by the Constitution.

The scope of the common law system, except for the United Kingdom (excluding Scotland) and the United States, is mainly countries and regions that were former colonies and dependencies of the United Kingdom, such as India, Pakistan, Singapore, Myanmar, Canada, Australia, New Zealand, Malaysia, etc. Hong Kong, China is also a common law area.

Characteristics of the common law system: (1) English as the center, English common law as the basis; (2) take case law as the main form of expression and follow precedent; (3) Change is relatively slow and conservative"Look back"habits of mind; (4) judges play a prominent role in the development of law; (5) The system is complex and lacks systematization; (6) Pay attention to procedures"Litigation centrism"。

The common law system is characterized by the following:

In terms of the form of law, case law occupies an important place, traditionally the case law of the common law system is dominant, but from the 19th century its enactment has also increased, but the enactment law is still subject to the interpretation of case law. Case law generally refers to the principles or rules of law established in the judgments of the High Court. Such a principle or rule is binding or influential for subsequent judgments.

Case law is not written law, and since these rules are created by judges when they hear cases, they are also called law of judges.

In addition to case law, common law countries have a certain amount of statutory law, and at the same time, there are some legal codes. Such as the Uniform Commercial Code of the United States, the United States Constitution, etc. However, compared to civil law systems, its enactment and codification are still very small, and its impact on the legal system is far less than that of case law.

There are several reasons why common law legal classifications are more pragmatic:

1. From the very beginning, the common law system attached great importance to the writ and the form of litigation, and this division of the form of litigation itself lacked logic and systematization, so it hindered the scientific research of English jurists on the classification of laws.

2. The common law system emphasizes case law and opposes codification, and the precedents do not focus on practical experience and ignore abstract generalizations and theories.

3. The common law system is divided into ordinary courts and courts of equity in the setting of courts, and the division of common law and equity is a manifestation of the struggle for power between Congress and the king from a political point of view, and from a legal and technical point of view, it is a modification and supplement of the defects of the common law by the law of equity, and the law of equity is based on the common law. His explanatory value lies in pointing out the conflicts and contradictions between general justice and individual justice. There is no distinction between ordinary courts and administrative courts.

4. In the development of the common law system, judges and lawyers play a major driving role. Moreover, the education method is also based on apprenticeships, which determines that they are more concerned with specific cases. and despise the classification of law in the abstract theoretical sense.

Moreover, as mentioned earlier, the common law system has a long tradition of dividing the common law from the law of equity, and although there is no distinction between the courts of common law and the courts of chancery, the distinction between the common law and the courts of equity has been preserved to the present day.

1. The classification is different, common law system.

It is divided into common law and equitable, civil law system.

Divide public law into private law.

2. The status of judges in litigation is different, the common law system pursues the party doctrine, the judge is a neutral, and the civil law country, the judge is dominant

3 Common law countries include case law in different sources.

Civil law countries do not include.

4. The form of codification of laws is different, civil law countries adopt the form of codification, but common law countries do not.

There are clear differences between common law and civil law systems, which are manifested in:

1) The main sources of law are different: In the common law system, the main source of law is case law; In the civil law system, the validity of precedents is generally not recognized, and a relatively systematic system of statutory codes has been established in various areas of departmental law;

2) the degree of succession to Roman law varied: the common law system did not follow the path of a complete revival of Roman law; The civil law system, on the other hand, developed on the basis of a comprehensive succession to Roman law;

Civil law system refers to the general term for laws that are based on Roman law and have a common legal cultural tradition or a common external expression.

The common law system, also known as the common law system. First originated in the United Kingdom, it refers to a general term for laws that have developed on the basis of English common law.

1) The main sources of law are different.

The civil law system is a statutory law system, and its laws exist in the form of statutory law, that is, statutory law, and its legal sources include various normative documents formulated by the legislature, various administrative regulations promulgated by administrative organs and international treaties to which the country is a party, but does not include judicial regulations. The legal sources of the common law system include both statutory law and precedents, and the case law constituted by precedents occupies a very important place in the entire legal system.

2) The degree of inheritance of Roman law is different.

The civil law system inherited the tradition of ancient Roman law, and was accustomed to using the form of a code to make a unified system of norms made by a certain legal department, and the code formed the backbone of the legal architecture. The common law system rarely has a codification, and it is customary to use the form of a separate law to make special provisions for a certain type of issue, so its legal system is structured to develop based on individual law and case law.

3) The role of the legal system and judges is different.

The civil law system emphasizes that judges can only use the provisions of the written law to adjudicate cases, and the judge's interpretation of the written law is also strictly limited by the written law itself, so the judge can only apply the law and cannot create the law. Judges in common law systems can use both statutory law and their own precedents to adjudicate cases, and under certain conditions, they can use the techniques of legal interpretation and legal reasoning to create new precedents, so that judges not only apply the law, but also create the law within a certain scope.

4) The organization of the judiciary is not the same as the emphasis on procedural law.

The litigation procedure in the civil law system focuses on the judge, highlights the functions of the judge, has the characteristics of the interrogatorial procedure, and most of the judges and jurors form a court to try the case. The common law litigation process is focused on the plaintiff, the defendant and their people, and the judge is only the "arbiter" of the dispute between the two parties and cannot participate in the dispute, and this adversarial procedure exists at the same time as the jury system, the jury is mainly responsible for making factual conclusions and legal, and the judge is responsible for making specific conclusions in law, that is, judgment.

5) Different concepts, terminology, and technical styles.

In civil law systems, judges hear cases, first consider how the enacted law provides, and then make a judgment in accordance with the relevant provisions and the facts of the case; Common law judges, on the other hand, first consider similar cases in the past, compare the facts of the case with the facts of previous cases, and summarize the rules of law that can be applied to the case. This difference actually reflects different philosophical tendencies, with the civil law system mainly showing a rationalist tendency, while the common law system embodies more empiricist characteristics.

6) The classification of the law is different.

The basic classifications of civil law national law are public law and private law. In common law countries, there is no distinction between public and private law, and the basic classification of law is common law and equity.

1. The sources of law are different.

In civil law countries, formal sources of law refer only to statutory law, whereas in common law countries, both statutory law and case law are sources of formal law.

2. The classification of laws is different.

The basic classification of law in civil law countries is public law and private law, and in common law countries there is no distinction between public law and private law, and the basic classification of law is common law and equity.

3. Differences in codification.

Civil law countries inherit the tradition of ancient Roman law and generally adopt the form of codification, while common law countries usually do not tend to adopt the form of codification, and the enactment of laws is often a single law and regulation.

4. The litigation procedure and judgment procedure are different.

Civil law countries generally adopt a trial approach and pursue interventionism, while common law countries adopt an adversarial system and practice party doctrine, and judges generally play the role of passive and neutral adjudicators.

Case: The American jurist Cardoso in "The Nature of the Judicial Process" and the German jurist Koin in "The Philosophy of Law" gave a preliminary demonstration of the judgments and precedents of judges in common law countries

The first step is to compare the case at hand with the precedents of other days, seek appropriate precedent rules, and if the later case is found to be consistent with the precedent, the judgment will be based on the precedent.

From a jurisprudential point of view, the precedent here is the formal source of law. Following precedents to make judgments is a fundamental task for judges, which is eternal and unchanging, and it realizes the value of stability, fairness and efficiency of the law.

This stage belongs to the application stage of precedents, and judges have little freedom of choice. After most cases have completed this step, the verdict has basically been determined.

The second step is to expand the precedent as much as possible to apply to the new situation if it is found that the precedent of the other day does not fully match the case pending today, but the value pursued by the two cases is basically the same. At this point, it is not the first choice to overturn the precedent.

The third step is to find the ultimate source of law and create new precedent rules when there is a loophole in the law. or when the rules of precedent hinder the development of society, the old rules are abolished by creating new rules.

Cardoso believes that this is what is needed for a vibrant legal system to evolve. When a suitable precedent could not be found, the prudent work of a wise judge was just beginning.

In this case, the judge is required to decide on a certain principle that he himself considers to be fair and proper, and the judge is more free to choose this principle.

To the surprise of many civil law judges, judges are so unfettered in their choice of sources of law (in the sociological sense).

Various values and policies (political, ethical, domestic, foreign) are gradually clarified and harmonized in the mutual agitation, guiding judges to make judgments that meet the needs of the development of the times.

People's Daily Online - Characteristics of the common law system of precedents.