สรุปสาระสำคัญจากการบรรยายพิเศษ หัวข้อ “Introduction to the Civil Law” จัดโดยศูนย์กฎหมายแพ่ง คณะนิติศาสตร์ มหาวิทยาลัยธรรมศาสตร์ วันอังคารที่ 24 สิงหาคม 2564
- Assistant Professor Dr Lasse Schuldt อาจารย์ประจำคณะนิติศาสตร์ มหาวิทยาลัยธรรมศาสตร์
- นายกรณัฐ จันทร์วีระเสถียร นักศึกษาชั้นปีที่ 4 คณะนิติศาสตร์ มหาวิทยาลัยธรรมศาสตร์ ภาคปกติ ศูนย์รังสิต (ผู้สรุปสาระสำคัญ)
- ผู้ช่วยศาสตราจารย์ ดร.กรศุทธิ์ ขอพ่วงกลาง ผู้ช่วยคณบดีฝ่ายพัฒนานักศึกษา คณะนิติศาสตร์ มหาวิทยาลัยธรรมศาสตร์ (ผู้เรียบเรียง)
Introduction to the Civil Law
The most influence on the Thai legal system has come from Civil Law countries. Thailand has become a country of the Civil Law traditions. Thailand is currently classified as a Civil Law country.
The Drafting of the Thai Civil and Commercial Code
The Thai Civil and Commercial Code (CCC) is the main piece of legislation in Thailand in the 19th century. In Thailand, the CCC could be considered as the backbone of the Thai legal systems because it has not been changed for such a long time. The changes have been rather minor.
In 1908, the CCC was initially draft by the French draftsmen. This draft was entered into force in 1923. Then, the new drafting committee changed to consist of more Thai than French members. To get a new draft in a reason amount of time, the committee decided to look at the 1898 Japanese Civil Code (JCC) and the 1900 German Civil Code (BGB). There was a misconception that JCC was a copy of BGB. Instead, JCC had mix sources. The choice of provisions from JCC or BGB often based on linguistic rather than legal doctrine. The new drafting team resulted in the first two Books (Book I and II) of the Thai CCC in 1925. Consequently, Book III, IV, V and VI was later published in 1928, 1931, and 1935.
The principles and provisions of the CCC was similar to the BGB. For example, section 823 of the BGB regarding liability in damages (a person who, willfully or negligently, unlawfully injures the life, body, health, freedom, property, or another right of another person is liable to make compensation to the other party). This is similar to section 420 of the Thai CCC because the elements of these two provisions are the same. This situation could be called as a legal transplant.
Legal transplant could result in the transplant of provisions, doctrines, theories, principles, procedural rules, juristic methods, and legal institutions. For instance, Thai Constitutional court could be considered as a result of legal transplant from German Constitutional court.
There are debates on pros and cons of legal transplant.
On the one hand, Alan Watson believes that legal transplants is feasible because law can be abstracted from society. In fact, laws have largely developed through transplants. The underlying issues are development vs. legal imperialism.
On the other hand, Pierre Legrand thinks that legal transplant is impossible due to difference in cultures or mentalities. He argues that every legal rule is a mirror of society. If the underline cultures or mentalities are different, the laws could be rejected.
History of the Civil Law Tradition
In Roman time, the city of Rome was founded in 753 B.C. The Roman Republic was founded in 509 B.C and Roman Empire was founded in 27 B.C.
In 449 B.C., the twelve tables were formally promulgated. They were the consequence of the Plebeians’ demands certain rights from Patricians. These twelve tables laid down legal rights and duties of the people of Rome. They were made of ivory and put in the middle of Rome for everyone to know. The twelve tables included private law (property law, tort law and inheritance) and court procedure. It was an example of the written law tradition.
Legal Professions in Rome
Praetor has pre-trial and partly legislative powers. The praetor issued edicts and formulas for specific cases. The praetor chose procedures and decided on the laws for the case and the claim concerned.
Iudex is the judges. Iudex had judicial power to decide the facts of the case.
Iuris consulti is jurisconsults. The writing of old legal scholars is important to understand Roman law. These legal scholars are called Iuris consulti. They are legal advisers and scholars. They advised the judges, praetors, and litigants. They also wrote commentaries, complied case law.
The Corpus Iuris Civils
In the year of 395, there was a division in East and West of Rome. The year of 476 was the fall of Rome but the Byzantine continues to exist, afterwards.
The 2nd century was the time of the Classical Roman laws. Many laws were written by famous legal scholars such as Gaius, Papinian, and Ulpian.
In the year of 525-565 (the 6th century), Justinian was the Roman emperor. He was aware of conflicting authorities of law. He set up the law commission in 529. He ordered the commission to gather and order Roman laws which later became the Corpus Juris Civilis (CIC).
The CIC was issued between 529-534. However, the name of ‘Corpus Juris Civilis’ was developed later.
The CIC consists of four parts.
1. Codex is the collection of imperial enactments.
2. Digest is the compilation of the most valuable legal writing of the best Roman jurists. It is the most significant part of the CIC.
3. Institutioners is the law textbook for students.
4. Novellae is the new imperial legislation by Justinian.
Selected Aspects of Roman Law
Roman law developed based on decisions and procedural law, not written law. Roman law could be considered as a system of plaints and defences. The plaints are called ‘actio’. The ‘actio’ was defined by the praetor. The praetor defined the procedure and goal of the process. If there was no procedure, making a claim was impossible. In other words, the Romans considered that the claims only exist if enforceable by ‘actio’. It can be seen that the way of thinking of the Romans was so procedural.
Individualism and property rights
The Romans developed a legal system that was largely based on individual free will.
Recognition of property in terms of individual movable and immovable property. The property rights were also recognised including the protection against dispossession, damage and other impacts, the right to sell or dispose of the property and freedom to make a will or testament.
The Romans divided obligations to contracts and torts. These are different categories in terms of obligation. The tort law in Roman was quite brutal and could be considered as a private criminal law. The person who destroyed other property could be punished in corporal way such as cutting certain part of body. Later, the role of the tort law then changed to only compensate.
The father had a central role in the family in Roman. Children (had only capacity to contract on behalf of the father. The father was only one who have the legal capacity and could be the partner of the contract. For the children below the age of 25, any contract that the children required the consent of the father. For peculium, sons did not need prior consent from the father in certain situations such as for the purpose of agriculture works. The father could sell the children to other. If the children were sold more than three times, they would be free.
It was based on the idea of individualism. The testament had priority over the legal succession. The testator made the testament to make the legal heirs to be disinherited. Then, there was Lex Falcidia. This law limited that at least ¼ share should be reserved for the legal heirs. Therefore, the legal heirs could no longer be disinherited anymore.
However, the Thai laws adopted only the right to testament, not the compulsory share system of the Roman laws.
The Rediscovery of Roman Law
The copy of Corpus Juris Civilis (CIC) was rediscovered in Bologna, Italy. The digest which is the important part of the CIC was studied again by legal scholars who came all over Europe. Bologna is the place of the first university was founded in the world.
Then, the scholars went back to their countries and the influence of Roman laws grew again across Europe. This led to more harmonise legal system influenced by the Roman laws.
Roman Law, Canon Law and Commercial Law
The Canon law is the written law of the Catholic church. In the middle age, the church became powerful because Romans collapsed. Then, the church became very influential and had been used in political way. The Canon law influenced legal systems in Europe.
Roman law and Canon law are referred as Ius Commune in Europe. These two groups of law are everywhere in Europe.
Then, the Canon law lost their significant. There was an introduction of the nation state which separate the church and the state. Religion was excluded from the legal systems.
Commercial was developed from the commercial customs and practices. There are gaps between Roman law and Commercial law. Commercial law remains unwritten as the Common Law system.
Nation states came with the idea of nationalism. Nationalism believes that people within the territory can be unified by the national narrative that all people in this area shared origin and culture. These people should form a nation.
Every nation states also develop its own legal system. The unification of laws is also the power. The reformed nation states should have their own law that applied to the whole territory.
French Civil Code
The 1804 Code Civil Des Français (French Civil Code) was the first codification that developed by the new nation state in Europe. It reflected the spirit of the Revolution in 1789. The French Civil Code incorporated Roman laws, royal ordinances, and Germanic local customs. It is the milestone of Civil Law tradition.
German Civil Code
The German Civil Code (BGB) entered into forced in 1900. It was the second large codification of private law. BGB was a product of 20 years of drafting. It referred as it was written by lawyers and for lawyers. It includes extensive scientific systematization of past German legal systems. Savigny had the idea to develop German private law from historical origin and historical school. He pushed the moment of making the code as far as possible in order to have time to study and systematise German laws.
Civil Law Characteristics
How to distinguish legal traditions?
Zweiger and Kötz developed the term of legal style. There are five factors including history, mode of legal thinking, legal institutions, source of law and ideology.
Classic sources of law
Civil Laws are written law. Statutes are rules enacted by the legislature (parliament). Regulations are rules issued by an administrative agency deriving authority from the legislature. Customs are norms that may be accepted as long as there is no contrary statute or regulation.
Additional sources of law
Constitution is a recent phenomenon in the development of law. The written constitution has been developed since 16-17th century.
International law or supranational law is created by international organisations or the regional associations.
Jurisprudence or case law is the source of law in Common Law tradition. However, judges in the Civil Law countries only applied and interpreted the laws. In other words, judges do not make law in the Civil Law systems.
Legal scholarship is not the source of law but is the authority of interpretation.
Public and Private law
The Romans laws considered the distinction of private law and public law.
In Civil Law countries, there are two branches of legal study: public and private law. Public law is what regards the welfare of the state. Private is what regards the interests of individuals persons.
The Common Law tradition has the different way of thinking. Generally, the government is not solely distinct from the general public.
Mode of legal thinking
Civil Law tradition tends to use abstract terms, principles and concepts. It has high level of precision in legal terminology. It adopts the deductive legal reasoning (from general to specific).
1. Abstract rule or principle: The owners of the animals must be responsible for the damages caused by the animals.
2. Consideration of the facts: Your animal bit another person.
3. Application of the rule/principle to the facts: Your animal caused damages, so you have to be responsible for the damage.
4. Conclusion: You have to pay for the damage.
However, in the Common Law countries, there is no rule or principle. Instead, there is the president made by the judges.
Role of legal scholars
In Civil Law system, legal scholars are important interpret and teach the law. They also observe, review and critique courts. Law considered as a science based on logic. Therefore, legal scholars have the important laws. The study of law focuses on textbooks written by legal scholars, not casebooks.
Substantive/ Procedural law
Since the 16th century, there was the focus of legal rights which exists regardless of procedure. There was a clear distinction between substantive law and procedural law. In Civil Law system, rights lead to remedies. This is the different ideas from Roman law or Common Law.
Civil Law countries have the inquisitorial procedure which the judge have a strong role. The private parties have less important role. The judges are in charge and lead the case.
Modern Time and Civil Law
Legal systems have influenced each other across border, due to globalization.
The nation-states are less important. Instead, the legal harmonisation become a new trend such as EU, CISG, GATT. However, in the AEC, there are variation of legal system and culture. Therefore, the harmonisation of laws within the AEC is more challenging.