Standard Of Proof Common Civil Law Comparative Perspective Law Essay - Free Essay Example

Sample details Pages: 8 Words: 2283 Downloads: 10 Date added: 2017/06/26 Category Law Essay Type Compare and contrast essay Did you like this example? In both legal systems, common law and civil law, criminal and civil matters are the majority of issues occurring in legal proceeding. Criminal matters are legal affiliation between governments and citizens in which governments take a superior position. Criminal process, typically although not exclusively, is initiated by the government or an agency of government, and is directed towards the punishment of an individual who is alleged to have contravened a rule of conduct for which such punishment has been made the sanction.  [1]  In contrast, civil matters concern legal relationship among citizens with in which every party has an equal position. Civil matters are related to protection of personal rights considering loss of the breach of private obligations.  [2]  Consequently, this broad distinction influences any processes during examination in courts, particularly in the standards of proof, in both common law and civil law systems.  [3] The scope of this essay focuses on the proof process in courts. This essay will initially explain the differences between common law and civil law. Then, it will compare the standard of proof in both criminal and civil matters in common law jurisdiction. Next, it will also contrast the differences between standard of proof in both criminal and civil matters in Indonesia as a civil law country. In this context, common law refers to a legal system which comes from the English legal system, whereas civil law refers to a legal system which comes from the European continental system or Roman law and the Germanic tradition.  [4]  It can be seen that both system are products of western civilization.  [5]  There are three main differences in the characteristics of common law and civil law, namely applying and interpreting the law stated in a statute to cases, the roles of jury and judges, and the binding force of precedents.  [6] In the common law system, laws are usually created by judi cial decision, and thus law contained in code is a secondary resource.  [7]  On the contrary, in civil law, courts should be denied any interpretative function and should be required to refer problems of statutory interpretation to the legislature itself for solution.  [8]  This difference is affected because of the difference of role of legislator. In common law, the legislator provides the main task of courts to create law, while in civil law courts should apply the law which is created by the legislator.  [9] The role of jury has significant influence in courts in common law tradition.  [10]  The jury is representative of citizens to establish decision. On the other hand, in civil law tradition, judges decide cases based on the evidence in examination process. Jury is unknown in civil law tradition.  [11]  After examining evidence and witnesses, and hearing indictment and pleading, judges discuss and then formulate verdict of a case. Therefore, in civil law c ourts, judges roles include leading trial process, examining evidence and witnesses, and create a verdict. Courts decisions should be similar to previous decisions. This is a consequence of the doctrine of precedents in the common law system. However, in civil law system, this doctrine is not applied. Every judges decision could be different from other or previous decisions. The main role of the court is to establish the law legislated by legislator to cases. Beside three main differences, there are also some differences between common law and civil law. The common law procedure is usually called adversarial, while civil law it called inquisitorial.  [12]  Another difference is in the common law, oral evidence usually is positioned over written evidence, whereas in the civil law, written evidence prevails over oral evidence.  [13]  Moreover, common law tradition is known preparation of witnesses, but in civil law, preparation of witnesses is not allowed. In common l aw, a standard of proof in criminal law and civil law trials are different. The standard of proof in criminal proceedings is beyond reasonable doubt, while in civil proceeding is balance of probabilities. This dissimilarity might be because of the difference between criminal and civil matters are. It has been explained above, that criminal matters are legal affiliation between governments and citizens in which governments take a superior position. On the other hand, civil matters are related to protection of personal rights considering loss of the breach of private obligations.  [14]  Therefore, the distinction influences many aspects during examination process. In criminal proceedings, the burden of proof is on the prosecution. The prosecution have the burden of proving the quilt of the accused person beyond reasonable doubt.  [15]  It means that the prosecution should convince the jury that the defendant is guilty by showing evidence. Moreover, the defendants also have the rights to persuade the jury by preset their own evidence. Therefore, it can be said The prosecution and defence have only two polar options to choose from when bargaining to settle the criminal case.  [16] The judges, in criminal trials, are actively pursuit ultimate truth. The judges also have obligation to organise criminal proceeding in order to ensure that every party: the prosecutor, the defendant and the jury, is able to serve their rights. Furthermore, one of the functions of the judge is to inform the jury about the meaning of key terms, the principles of the applicable law, and the facts which must be proved to justify their verdict.  [17] In civil proceeding, on the contrary, judges are less active to examine evidence and witnesses. The parties in dispute has obligation to present evidence and witnesses and it can be established cross examination. They have to provide sufficient evidence to support their position.  [18]  In the other word, the party with the burden of proof need only prove his claim by a so-called preponderance of evidence.  [19]  Moreover, the plaintiff prevails only if the preponderance of the evidence is in the plaintiffs favour.  [20] Indonesia is a civil law country. Historically, this is because Indonesia received the legal system from Dutch colonial government and as a consequence of concordance principle. Indonesia, recently, has revised most of the acts which it received from the Netherlands government. In criminal law, Indonesia revised the main procedural act in 1981 (KItab Undang-undang Hukum Pidana/KUHAP),  [21]  but the main substantive law is processed in the parliament. On the contrary, Indonesian main acts associated with civil matters have not been revised. Consequently, Indonesia still imposes both the main substantive and procedural law in civil matters legislated before Indonesia become independent. Therefore, Indonesian Criminal Procedural Code could be in compliance with social ch ange, while the civil procedural act might be unable to be suitable with Indonesian social movement. Based on this situation, it seems that the distinction contributes to the implementation of criminal and civil procedural acts. Standard of proof, particularly, in civil matters and criminal matters are quite different. There are four main differences in this area, namely the main purpose of examination on the court, the judges roles and the kinds of evidence and reasons in judges decision. In common law jurisdiction, there are beyond reasonable doubt in criminal matters and balance of probabilities in civil matters. Similarly, in civil law jurisdiction, there are material truth in criminal matters and formal truth in civil matters as the main standard of examination on courts. Basically, criminal courts must actively find and obtain a material truth or at least closest to the ultimate truth.  [22]  Material truth constitutes as the essential aim for all parties (judges, at torney and defendant) in criminal court to prove the evidence completely as the fact of a case. In contrast, civil court must decide cases based on evidence provided by both parties. It seems that both parties have responsibility to present evidence. Consequently, a party is obliged to produce only those documents which are referred to in its pleadings.  [23]  In addition, in civil law the complaint actually determines the parameters of the case.  [24]  It means that civil courts would only focus on the complaint in the examination process. In criminal trial, attorneys must draw prejudgement in the beginning as a reference of examination.  [25]  The prejudgment contains defendants acts and rules related with the acts.  [26]  Thus, the responsibility for proving the acts is on the attorneys. This is because of the principle of presumption of innocence.  [27]  The attorneys have more responsibility to make the judges believe that the defendant is guilty by sh owing the proof.  [28]  Moreover, judges must decide cases based on prejudgment. If in the court, prejudgment could not be proved because the attorneys make mistakes in applying rules, consequently, judges will decide to release the defendant.  [29]  Even though, defendants acts were proved completely. The consequence of material truth is judges must also actively find facts of cases.  [30]  It is called inquisitorial.  [31]  Judges not only examine the evidence or witnesses showed by attorneys and defendants, but also they could command attorneys and defendants to present others evidence and witnesses. The judge does not have to wait for the counsels to present evidence, but he or she can actively initiate introducing of relevant evidence and may order one of the parties to disclose evidence in its possession.  [32]  This is for the reason that judges want to make sure that the defendant is guilty or not. Even though, if defendants admit a crime, but there is no evidence, judges will decide to release them.  [33]  This is because judges must meet with real truth. On the other hand, in civil trials, judges are rather passive when examining evidence and witnesses. This passive way also means that if the parties in dispute agree to finish the conflict, the judges cannot impede the agreement.  [34]  In addition Civil law procedure is usually called inquisitorial, because the judge examines the witnesses, and the parties in dispute practically have no right of cross-examination.  [35]  In Indonesian civil trials, burden of proof is on a party that have the greater opportunity to prove it.  [36]  Moreover, there is a principle called audi et altera parte. It means that judges are not allowed to justify a statement from a party, unless they clarify to the other party.  [37]  Finally, the judges decide that the party who could show more solid evidence would be considered as the winner. There are five kinds of evidence in Indonesian criminal courts.  [38]  This evidence is stated in KUHAP from the strongest to the weakest. First position is witnesses explanations, then experts information. There are three criteria of people who can be a witness. They are those who are or have experiencing, seeing and hearing something related directly to a case.  [39]  Indonesia practices unus testis nullus testis principle, which says judges decision cannot be only based on one witness, it must be based on at least two witnesses.  [40]  On the contrary, experts must present information that is only related to their knowledge.  [41]  Furthermore, the third form of evidence is written documents, and followed by clues. Documents are which is issued by the authority.  [42]  Clues are information or acts which can be linked logically one to another, and thus they create a logical conclusion.  [43]  In addition, defendants explanations take the last position. Defendants explanation can be withdr awn during the examination process.  [44] In civil court, there are five sorts of evidence. Similarly, the evidence is stated in HIR from the strongest to the weakest.  [45]  First evidence is documents. Based on HIR article 165-167, documents are signed letters containing incidents and constitute as basis of rights and agreements for making evidence. Different with evidence in criminal court, witnesses take the second position. The classifications of witnesses in civil courts are quite similar with criminal courts. Witnesses are people experiencing, seeing and hearing something related directly to a case.  [46]  The principle of unus testis nullus testis is also applicable in these courts. Moreover, the third position is presupposition. Presupposition means a conclusion which is created from information in documents and witnesses.  [47]  The last two positions are admission and oath. Admission is a partys statement justifying the opposite partys rights or an event.   [48]  As a consequence of this, the opposite party is not obligated to prove its rights or event.  [49]  Additionally, based on 155, 156, 158,177 HIR oath in this terms does not mean how to make an oath, but information or statements which are given under oath.  [50] Indonesian criminal courts practice Negatief Wettelijk Stelsel as the reason for judges to make verdict. Negatief Wettelijk Stelsel means that decision of judges based on prejudgement must be based on two reasons.  [51]  First, judges strongly believe that a defendant is guilty. Secondly, the belief is supported by at least two pieces of evidence which have been determined by rules.  [52]  Consequently, judges belief and proved evidence are united and cannot be separated. In Indonesian civil courts, a judges decision must consist of adequate and faultless reasons and considerable.  [53]  Additionally, judges decision must show articles from acts and unwritten rules as reference for judging.   [54]  Moreover, judges cannot decide something which is not requested or claimed by the parties. Therefore, the decision could grant or not grant all or some of the requests or claims, but it cannot add something which is not requested or claimed by the parties.  [55] There are broad distinctions between civil law and criminal law, particularly in the proof process, in both the common law and civil law system. Based on the arguments mentioned above, it can be concluded that the distinctions seem insignificant. Basically, it can be seen that justice could still be reached, even though there is a difference in the manner of proof process. Moreover, standard of proof in civil law and criminal law can be said to be similar. Beyond reasonable doubt in common law, and material truth in civil law have the same purpose to obtain certainty of facts. Similarly, the balance of probabilities in common law and formal truth in civil law have the same goal. The important thing is the di fferences which exist between civil law and common law should not be exaggerated.  [56] Don’t waste time! Our writers will create an original "Standard Of Proof Common Civil Law Comparative Perspective Law Essay" essay for you Create order

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Bureaucratic Procedures and Cultural Control-Samples for Students

Question: Identify two of the four forms of control (Knights and Willmott, 2012) which have been used in Unit 2 as a framework. You should therefore choose TWO from the following: Direct supervision. Bureaucratic procedures. Cultural control. Output and self-regulation. Use these two frameworks for organising ideas, concepts and theories that relate to the different techniques associated with getting employees to do what the organisation wants them to do. Answer: Bureaucratic procedures: Bureaucracy within an organization refers to the system and its procedures which contribute in maintaining the authority and a sense of uniformity within the organization. This form of control within the organization is mostly common for the large organizations where the administrator has a specific rule of controlling the internal behavior. It is basically a structure of the organization which defines the rules and regulations of the organization. According to Grove and Hinton (2013), bureaucracy is the superior to any other organizational form and within any large organization, the bureaucratic procedures are indispensable. However, this practice becomes omnipresent in the formulation and implementation of any policy within the organization. The implementation of any policy in the organization also strengthens the bureaucratic procedures and its operational spheres (Stamatovic, Maksimovic and Tornjanski 2016). The theories of motivation and control such as Herzbergs Two-Factor Theo ry of Motivation and Vroom's expectancy theory indicate the form of direct control over the employees. Within the bureaucratic procedures, there are three frameworks which indicate the reflection of the comparative performance of these forms along with the shifts in the cultural issues with the organizational performances. The frameworks are discussed below: Functional Performance The formal organizations are methods of governing the performance and the administrative behaviors along with the fact that the organizational forms only increase while they are capable of providing solutions. Cultural Prescriptions This framework suggests that the formal organizations have infused the value across the technical requirements of the organization. As stated by Stamatovic, Maksimovic and Tornjanski (2016) every organization carries a particular cultural value and its expectations but the organization only flourishes when it matches both the organizational expectations and the expectations of the employees. Power Distributions This framework suggests a conflict over the standard of performances. With a large organization, there is always a power struggle amongst the administrative figures (Grove and Hinton 2013). If the bureaucratic organization declines, it shows a regular shift in the power relations which brings several new kinds of problems. In the bureaucratic organizations, there are mostly full time employees with the employment contract of life-long, organized salaries, careers and pension plans, promotion after a certain gap of time on the basis of their merit, education and their tenure, legal protection and several other amenities. These exercises are tied to the public resources and the authorities as well. Within such organizations with bureaucratic practices, they are expected to follow the orders the rules on a voluntarily basis as they have been given legitimate and rational orders (Dan-Cohen 2016). However, the organizations are also expected to follow the basic rules and provide its employees their primary requirement in order to motivate them towards the shared goal. Herzbergs Two-Factor Theory of Motivation identifies that there are two kinds of motivational factors that the organization can provide its employees. The first one being the hygiene factors and the later one is the motivational factors (Dan-C ohen 2016). The hygiene factors are the essential job factors which contribute to the motivations of the employees within the organization. Even if these factors do not contribute to provide a satisfaction right away, but if these hygiene factors are not present within the organization, it may lead to the dissatisfaction of the employees. These factors include pay structure of the employees, administrative policy of the company, fringe benefits, employee status, working conditions and interpersonal relations (Lukwago, Basheka and ODUBUKER 2014). In the bureaucratic organizations, the pay structure and the employee benefits are fixed, the organization should make sure that the employees are receiving their individual benefits on a regular basis. The entire structure of the administration should be transparent so that it ensures that the employees are receiving their benefits and their pay structure is justified according to the industry structure. Other than these factors, there are also motivational factors such as recognition, promotional opportunities, sense of achievements, meaningful work and several others. Even though within the bureaucratic procedures the promotional opportunities are fixed, the authority should ensure that they are being recognized for their job performance and they are considering themselves to be responsible for their own mistakes. These factors will contribute to the motivational level of the employees and will emphasize on the enrichment of the jobs of the employees. Another theory, Expectancy Theory put emphasis on the fact that if the effort increases, it will also contribute to the increased performances of the employees. This effort can be influenced by several factors such as skills of the employees, resources and the necessary support (Vroom, Yetton and Jago 2015). Within the bureaucratic organizations, the employees are hired on the basis of their skills and education, but the authority requires ensuring that the employees are receiving enough resources and necessary support from the management. This will increase the level of their performance as well. Cultural Control Every organization needs to go through a series of definite systems that help them to gain a sustainable future in the industry. In order to do so, it is extremely effective to have control over the staffs of the organizations v The management of the organizations should look to establish that control. The organizations should maintain certain ethics and control over the employees so that they can behave themselves. It is not just fine to tell them to do certain things in the organization. Their actions should be changed and they should be motivated properly to behave in a certain way (Chen 2012). There can be four types of control that can be effective within the organization. These are the direct control or behavior, control through rules and procedures, control through maintain a good organizational culture and controlling the employees through performance. In this segment, the control through culture has to be described because organizational culture is an extremely important factor in every organization (Chen 2012). Control through culture In every organization, certain patterns of behavior, rules, rituals have to be maintained so that so that the professional environment can become more competitive and well-behaved. There are certain individuals within every organization who violate all the social norms and professional ethics and disrupt the organizational culture (Alvesson 2012). This has to be looked as negative. They have to be punished properly for doing that and make sure the proper organizational culture is restored. It has been seen almost in every organization that certain social norms are maintained, whether they encourage individuality or conformity. The seniors of the organizations very often enforce these social norms on the organizations. The unethical practices within the organization must be discouraged by the management (Goetsch and Davis 2014). Almost all the companies have written mission statements that help them to secure the organizational culture. All the employees and members of the organization have to maintain these etiquettes that ensure a proper business environment. The business environment and culture has to be spontaneous and it has to be deliberate (Goetsch and Davis 2014). These mission statements help the employees to behave in a certain way that helps to keep up the good reputation and brand image of the organization. The employees have to be motivated, be able to work as a team and maintain their ethical responsibilities properly (Anitha 2014). The employees are provided with all the details on the first day of their job. They should be able to behave in a proper way after they get that and try be on the same page with other employees as teamwork is very necessary (Goetsch and Davis 2014). The company handbooks provide the employees with many important details like the nondisclosure agreements, anti-discrimination policies, expected work schedules, various codes of conduct within the office premises, maintenance of the business ethics and other general information regarding the company. The employees should follow these things properly and if in any case these rules and regulations are violated, they may be aware of the outcomes too. This could result in written oral reprimands by the senior managers and even this could lead to the termination of the employees (Anitha 2014). There is a term in the modern business organizations known as deliberate role modeling (Goetsch and Davis 2014). This is to be in line with the fact that the employees receive training in the organization when they are hired in a new job. They are made aware of the ethics and culture that the employees have to maintain in the office and what should they face if they do not maintain these things. They should be informed about their job roles and expectations from the management. They should maintain the organizational culture and values at any cost. There are certain theories in the context of cultural control of the management. The expectancy theory focuses on the fact that effort of the employees can lead to improve the performance of the employees (Renko, Kroeck and Bullough 2012). The better the employee performs, the more he will be rewarded by the organization. Bad performance of the employees will lead to bad impressions. The rewards they get will help them to achieve their personal goals. The equity theory of motivation says that the employees have to be treated as same in the organization so that there should exist no jealousy between them (Al-Zawahreh and Al-Madi, 2012). Pay rise and promotions may have de-motivating effect on others. All of them should be treated and be motivated by the leaders to achieve the organizational goals. This will create a helpful working environment and cultural competency as well. The management will have a better control over the employees by applying these organizational cultural factors . Reference List Alvesson, M., 2012.Understanding organizational culture. Sage. Al-Zawahreh, A. and Al-Madi, F., 2012. The utility of equity theory in enhancing organizational effectiveness.European journal of economics, finance and administrative sciences,46, pp.158-170. Anitha, J., 2014. Determinants of employee engagement and their impact on employee performance.International journal of productivity and performance management. Chen, X., 2012. Culture, peer interaction, and socioemotional development.Child Development Perspectives,6(1), pp.27-34. Dan-Cohen, M., 2016.Rights, persons, and organizations: A legal theory for bureaucratic society(Vol. 26). Quid Pro Books. Goetsch, D.L. and Davis, S.B., 2014.Quality management for organizational excellence. Upper Saddle River, NJ: pearson. Groves, L. and Hinton, R. eds., 2013.Inclusive aid: Changing power and relationships in international development. Routledge. Lukwago, G., Basheka, B. and ODUBUKER, D.E.P., 2014. USING HERZBERGS TWO FACTOR THEORY TO DEVELOP A CONSTRUCT VALIDITY FOR MOTIVATION OF EMPLOYEES IN UGANDAS NATIONAL AGRICULTURAL RESEARCH ORGANISATION (NARO): A PRELIMINARY ANALYSIS.Global Journal of Commerce Management Perspective,3(3), pp.59-65. Renko, M., Kroeck, K.G. and Bullough, A., 2012. Expectancy theory and nascent entrepreneurship.Small Business Economics,39(3), pp.667-684. Stamatovic, M., Maksimovic, S. and Tornjanski, A., 2016. THE COMPARISON BETWEEN PUBLIC AND PRIVATE SECTOR EFFICIENCY-ARE THE BUREAUCRATIC PROCEDURES THE SOURCE OF INEFFICIENCY?.Ekonomika,62(3), p.111. Vroom, V., Yetton, P. and Jago, A., 2015. Normative decision process theory.chair in human resources at the State University of New YorkBuffalo and was faculty director of the Center for Entrepreneurial Leadership there. Previously he was Research Professor of Management at Georgia State University. He has written over fifty books and over 135 other publications., p.207.