Continental Europe, the Anglo-American LAW WITH LAW AND AGENCY proceedings COMPARATIVE INVESTIGATION OF THE COURT
Continental Europe, the Anglo-American LAW WITH LAW AND AGENCY proceedings COMPARATIVE INVESTIGATION OF THE COURT
Around the Anglo-American Law within the framework of the theory of comparative law (Common Law), Legal Environment of Continental Europe with the style of one of the most important factors determining the form of legal thought özelliklerdir1. For example, the German Commercial Code are available in the "right and true view" theory (true and fair view) based on the true problem is not the same everywhere and the truth emerges. "Truth" Is it the same everywhere? This concept in the UK is the money? Here are the questions and issues like that, different legal environments olmaktadır2 cause.
Notable features of the method of legal thought in continental law, and all legal areas is based on abstract legal normlara3 olmasıdır4 been systematized. British Common Law 'when there is the traditional method of a law based on the event
Common Law 'in the courts of law and the development of previously issued in this way takes place depends on the decisions of the court. In contrast, Continental Europe 'in the development of the abstract and general rules of law in the form of putting çıkmaktadır6.
One of the general differences between the two legal environment, based on case-law of the science of the Common Law and Continental Europe, whereas olmasıdır7 scholastic science. Because England was dominated by lawyers at large, Continental Europe 'in the profesörlerdir8.
One other difference is related to the understanding comments. Continental Europe 'for the unforeseen problems, even if the norm is reached with the interpretation that what is envisaged. In the Common Law system, which the judge will reach a decision yakındır9 impossible to know in advance.
In addition, Continental Europe, corporate law in the abstract, the Common Law at the concrete is considered to be. In this context, Continental Europe 'eksizliği understanding of the legal system in question, while the Common Law' by examining the decisions to develop the most appropriate solution çalışılır10.
Common Law legal system and legal system of Continental Europe in this way after putting the basic differences, the continuation of the study, taking into consideration the scope of work in terms of law of Continental Europe, Latin and German legal circles within the framework of separation, and the organizations of the trial court proceedings on the properties of these two systems will be discussed.
PART ONE
Continental European Law
I. As General
The common feature that can be included in the legal community in continental law system, Roman law or Roman law may affect the historical process, these countries-affected countries to be expressed in terms of impact on other countries edilebilir11. To be sure, the legal problems of these countries in the Common Law System of countries, especially with the United States, mostly yakındır12. The biggest difference, in terms of judicial procedures and methods of solution çıkmaktadır13.
At this point, in Latin, French and Italian law as the basis of law in terms of environment, in terms of the German legal environment would be appropriate to examine the procedures for the trial of German and Swiss law.
II. LATIN LEGAL ENVIRONMENT
A. FRENCH JUDICIAL ORGANIZATION
French law, especially civil trial etkilemiştir14 many countries around the world. However, especially in Italy, the French Civil Code etmiştir15 serve as a model to various countries.
1. General Features and Principles
Ø The principle of independence and impartiality of Judge:
Impartiality of the judge, the judge could not be assigned automatically, just in case the decision may positively or negatively, and stated that this decision had to give eder16. The independence of the judge, that the administration karışamaması gelir17 judiciary. Both of these concepts, is applicable to judges, prosecutors, depending on directives in regard to becoming more limited as the uygulanır18.
Ø Recognition of equal procedural rights and defense of the right to:
Cases seen in the same procedural rights to parties the right to defend the well-known and provided in full. Equal recognition of procedural rights, files and documents to be seen, given the right to rest, gıyaptaki as a result of a decision to invite only be given in compliance with içermektedir19.
Ø The principle of public openness:
The principle of openness applies to the public for hearings and decisions. Yapılabilir20 hearing closed to the public for security reasons.
2. Courts Organization
There are two basic ayrım21 French judicial organization:
that law and criminal courts
that the courts of the Administration.
Arm of the courts of law and punishment, the court's first degree is a very special one. Subjected to discrimination in the courts of appeal, and other reference sheet date. Authority among the courts of first instance for resolving the problems to be resolved and a high court vardır22.
a. Law Courts
Law courts, courts of first instance, appeal courts (jurisdictions d 'coverage) and to the courts of appeals are divided into three.
Separation of the competent courts of first instance courts of general and special mention konusudur23.
Cour d 'appel, one court of second instance. Here, each step of the courts of first instance for vardır24 Senates.
Cour de cassation, the Union law aimed at ensuring that the courts and the appellate mahkemesidir25 above. The appellate court, five-law, three general, a trade, has a job and social security tribunal. Cour de cassation, supervises the implementation of law, not the event. The appellate court decision contrary to the court of revision düzeltmeyip, infects. After the recent reforms, appellate court also given the privilege of making the final decision. The appellate court decision to send back to the trial court and disrupt, but it is not connected to the first-instance court. The appeal court is given a different, an event gider26 general assembly.
b. Criminal Courts
Criminal courts, investigative judge and the appellate court's investigative office of the courts of his investigation and the decision may be subject to discrimination in the courts. Should be noted that the investigative judge in charge of the case till the opening. Necessarily the most competent person crimes investigative judge. Misdemeanor crimes and the involvement of discipline is weaker. If there is sufficient basis for opening an investigation of the case or the judge closes the file gönderir27 competent court for consideration.
Decision in terms of division, it is possible to say that the three basic distinction. Violation of laws, misdemeanors and offenses (criminal court is heavy.) Authorized a special bölümlerdir28 terms.
c. Administrative Courts
Administrative courts in general are similar to civil courts. There are more than one special court and a three-stage system mevcuttur29.
Conseil d 'Etat, court reporting and opinion organ.
Cours administratives d 'coverage, the administrative court of appeal niteliğindedir.
Tribunaux administratifs, administrative courts.
d. Dispute Tribunal (Tribunal des conflits)
The task was set up to resolve disputes about.
Negative jurisdictional disputes that count every step in case of dispute the court's self-görevsiz court judge to find a way permits. In addition, the court thinks görevsiz also send the case directly.
Positive task uyuşmazlıklarındaki administration, the administration of the courts the power to rape the other against their protected status.
Conflict court, one can give a decision on the status of the case, decisions about the dispute when it comes to the subject of the case revealed.
3. Law of Limitation of Roads
In France, the administration falls within the jurisdiction of the courts of individual types of litigation has led to problems counted. Therefore, the basic pillars of the French administrative law and public service to the public power, is also a measure kaçınılmazdır30 task.
4. Evidence Değerlendirilmesi31
French law on the evaluation of the evidence made a distinction between civil and criminal courts. Law courts interpret the regulatory process, but the law can not do moderation. Criminal courts, statutes and administrative jobs and interpret the law as well as the eligibility check. Indeed, trial in criminal cases, indispensable.
B. ITALIAN JUDICIAL ORGANIZATION
1. Ordinary Courts (Magistratura ordinara)
Civil and criminal jurisdiction of the courts in charge are as follows: Magistrate judge, magistrates court, court of First Instance, the Court of the application, the Appellate Court, Youth Court, Judge of Prisons, Prison Mahkemesi32. In this concrete case, the courts shall decide whether they are in charge.
2. Civil Procedure
Civil trial tasks in the first degree is organized in three stages.
Magistrate judge the most important tasks, a certain amount of money which is moved on the subject of articles on the subject of lawsuits and the money is still a certain amount of traffic conflicts.
Magistrate's courts, regardless of the value of the subject of controversy, the attacks on tenure, disputes over immovable properties, rent, lease revenue bonds and resolve disputes arising from joint possessions. In addition, magistrates' courts, tax, some family law work, not be determined if the value of the subject of controversy in charge.
Courts of first instance, magistrates and magistrates' courts, unlike the three judges judge, and decide together verirler33 acts.
First Instance Courts, magistrates 'courts and magistrates' court judge acts as a reference against the decisions. Court of First Instance against the decision of court of application of the high court. High court will decide if the delegation and the delegation of judges is composed of three judges.
Highly as the court of appeals court decisions of all applicants, in terms of the decisions of magistrates' court of first instance judge in charge of the decisions and the application may be made. Decision of the trial court referred to it will break again, with the opinions of the court of appeals in deciding bağlıdır34. The appellate court, the court of first instance decisions in terms of law, compliance checks.
3. Criminal Procedure
The courts of first instance of criminal law consists of four stages:
Magistrates Court, the penalty will not go four years of crime, misdemeanor charge of minor crimes and given just fine. Moreover, the objections also responsible for administrative and criminal penalties.
High Criminal Court of first instance, responsible for grave crimes.
Youth courts responsible for crimes committed by young people under the age of 18.
The high court and court of second instance in Criminal Court in charge of the application. Assize Court Assize Court of second instance against the decisions of first instance on the merits of the application and, if the task belongs to the trial court judge District Court against the decisions of the query examines the applications.
The appellate court, as the last instance court against the decision of the applicant and the applicant appeals against the decisions of the court of first instance are way off the review application. This examination consists of inspection of law uygulanmadığına of law is applied correctly.
Prosecution, the Supreme Court, high courts, courts of first instance, youth courts and magistrates' courts is located.
4. Administrative Jurisdiction
Administrative jurisdiction of the Constitutional arrangement itself from kaynaklanmaktadır35.
Administrative organization of the courts within the judiciary, is different from the ordinary courts teşkilatlanmadan. General administrative courts and the administrative judiciary is evident difference between the special stages.
General administrative judiciary, a certain subjective rights and legitimate interests in administrative disputes arising from regional administrative courts in charge of infringement. Application is made against the decisions of the courts of the state administration şurasına. Complaints against the decisions of the State Council in the court of appeal is made.
Special administrative judiciary, the Court 's decision-making on a mission and legal authority to solve disputes about the authority of the court and the court stated publicly owned waters. In addition, although not part of the administrative jurisdiction of the courts handle the case-law according to the administrative jurisdiction of military courts are subject to the rules.
III. GERMAN LAW ENVIRONMENT
A. GERMAN JUDICIAL ORGANIZATION
1. The German Law on Legal Separation
a. Separation of Private Law-Public Law-Criminal Law
In Germany, both academic learning and practice, law, private, public and subject to discrimination in the form of criminal law tutulmaktadır36.
Public law, authorize public power or obligation under the rules and put the law refers to the organs of state and devletlerüstü.
Private law, there is no law to sujesi.
Criminal law, essentially a part of public law, but as the general layout of the money or the freedom of disruptive behavior under threat of sanction that can be said in this area.
b. Procedural Law-this material Legal Separation
Material law, legal rights and obligations of sujelerinin, regulates the formation of legal institutions. Procedural law, the rights in case of violation of a set of rules governing the procedures for searching. The trial law, duty and authority of this kapsamdadır37 distribution.
2. Courts Organization
a. General Features and Principles
Basic norms of the judicial organization of the German Constitution düzenlenmiştir38. In addition, the regulatory framework of the judicial organization of the Law on Organization of the courts' place in the alır39.
Civil trial procedure, the French Civil Trial Procedure Act 'significantly influenced by the development göstermiştir40.
Court decisions, case law of the case sides into a dönüşmedikçe bağlar41 only.
The courts decisions are issued by judges and judges only with law and the law depends. Applies the principle of the independence of judges. Both served as judges in accordance with this policy is independent of both personal. Litigation, while no individual, government or government representative can not influence the judges.
In Germany, as a rule, oral hearings are open to the public. For security reasons, the principle of publicity can be restricted or completely dispensable.
b. General Building
In Germany, including all the judicial organization of a high court yoktur42 general. Courts in various degrees in a hierarchical order. The trial begins with the lower rating in the courts and with the top rating in the courts of different ways of judicial appeal against the decision of the lower instance court.
Judicial many ways, but most important, the court of appeal application, appeal and objection. Trial court fully review the application again. Appeal not only re-examined the legal problem. Appeal to the individual problems are handled in the trial. Degree in charge of the courts in certain regions.
Ordinary courts, civil and criminal courts are in the form of binary distinction. Law courts are authorized in the resolution of problems arising from civil law relations. Criminal trials in the courts of criminal law and disciplinary affairs, is authorized.
Most courts, magistrates' courts of lower degree, on the courts of first instance courts, courts of first instance are high on them. Ordinary courts vardır43 the top of the Federal Court.
Besides the usual business of the courts located in the courts. These courts are authorized to disputes arising from business law.
Courts of general administration, social and fiscal court the authority to court not authorized to handle disputes arising from law.
Social security courts are authorized to resolve disputes arising from the social security law.
Disputes arising from the tax court is authorized to tax law.
The high courts of the Federal Government the power to decide on law as a rule, only the Federal sahiptir44. Authorized federal courts of the states on issues related to the Federated States jura. Essentially, the federal law distribution of federal authority in question is a clear değildir45 hukuklarda. There are some issues on federal court jurisdiction. For example, issues related to military discipline, the military court of first instance court, the application of the Federal Administrative Court of the court 'dir46.
The German judicial system is a special place in the Constitution vardır47 proceedings. Federal Constitutional Court in each of the states are. The federal courts of the state constitution, federal law designated in accordance with the rules of trial solutions in disputes.
The Federal Constitutional Court in Germany and most respected kurumlarındandır48 highest court. Constitutional issues concerning the constitutionality of the Constitutional Court 'settlement within the framework of the regulations specified by the bonds. This court's decisions on all the constitutional organs bağlayıcıdır49 organs.
European Union courts in Germany also indicated the increasing importance. ATAD50 most important of them. These courts decide particular cases of pre-trial procedure set out in EU law works with. According to this interpretation of European law by the courts of member states in case of doubt about the legal issue in a matter of ECJ to send, the ECJ to issue a binding decision the court has brought about the problem.
B. JUDICIAL ORGANIZATION SWITZERLAND
Switzerland in general, as the center of the civilized addedilmektedir51 judiciary. Historical process, the Switzerland of the civilized mode of trial, the French law to say that interact with mümkündür52. However, the Swiss high court procedures in the courts of law rather than German, French law yakındır53.
1. Federal Court
The highest judicial organ of the Federal Court. The federal court judges are elected by the Assembly. According to the Federal Court Federal Court kanununa54 the procedures of this organization are determined by law. In this regard, the Federal Court is divided into sections according to the fields.
The Federal Court, the Constitution of the claims for breach of, cantons and villages of the claims of powers has been violated, the federal government and the cantons or the cantons decide disputes between the public law bonds. In addition, criminal and administrative law disputes from the decision bonds. There are certain degrees of the Federal Court in the Civil law. Execution, bankruptcy proceedings at the federal level jobs in Switzerland to be a law karakteristiğidir55.
2. Federal Law and cantonal law
According to Swiss law, the authority of civil and criminal proceedings cantons. Therefore, the organization of the judiciary and civil trial law by the düzenlenir56 cantons. As a result, Switzerland to a very large number of organizations in different jurisdictions, the law of civil and criminal trial procedure has.
The general principles of the proceedings, the legal tools and the Federal Court the Federal court of jurisdiction to make rules for directly regulated by federal laws. Regulated by federal laws or administrative rules relating to the judiciary and the military.
Effects, especially in the field of civil trial law, the Federal Law cantonal jura.
3. General Structure of the Organization of Courts
a. Law Courts
Switzerland at the ordinary civil courts are authorized to work all the law and the law authorized a special law which the courts are competent in certain areas kılındığı. In addition, the special courts of law serves as the commercial courts. Low value of the subject of litigation in the courts of first instance or by a single judge görülür57 peace.
Some cantons for the two degrees öngörmüşlerdir lawsuits. First Instance Court of first instance is usually the second degree (reference the courts) are usually referred to as the canton or the high court.
Legal proceedings in civil trial law, a highly uniform federal court has a duty to support the application. One of the parties to a legal trial, one of the cantons in the Federal Court or the Federal Government as a single-instance court decides. In addition, the subject of litigation in the value of a particular value, and direct the Federal Court to cantonal law başvurulmuşsa or appearing in certain legal proceedings, the Federal Court 'had left to the Federal Court as the trial court decides one again.
b. Criminal Courts
The organization of criminal courts, judicial procedure, criminal law and case law in civil law as well as the authority shall enter into cantons. However, the administrative regulations of the federal criminal law and military criminal trial yapılır58 context.
c. Administrative Jurisdiction
Both the federal and cantonal levels of administrative jurisdiction operates. First Administrative Judicial Administrative Code rules relating to the judiciary 'is located in. In addition, the rules relating to the judiciary has a lot of administrative regulation. Cantonal courts and administrative courts or the administrative rules for the organization with its own regulatory authority sahiptirler59 laws.
CHAPTER TWO
Anglo-American Law (COMMON LAW) 60
I. ENGLISH COMMON LAW 'I
A. GENERAL FEATURES
English common law, including both the French legal environment of the continental European legal environment schemes, including both the continental European law, German law is quite farklıdır61 schemes. The basis of this difference, since British law, high courts in a very long historical process created by the event hukukuna62, in rare cases, the areas still held by the courts of law are discussed metinlerine63 dayanmasında lies.
Common Law ', some legal institutions, procedures and traditions very different from judging whether the difficulties encountered when comparing the Continental Avrupasındaki institutions. There are also Civil Code, Commercial Code, such as whether the Civil Procedure Law, the legal concepts that are systematically arranged in not in question. This technique of law legal system, legislation or interpretation of the law or the facts of life, not according to the conceptual determination of the court decisions are based on groups and events. In addition, this legal system carefully discussed issues of vital relations decisions taken under observation in a systematic manner and not abstract, concrete and gerekçelendirilmektedir64 historical perspective.
B. ENGLAND IN JUDICIAL ORGANIZATION
UK 'private law, expressed in their daily legal relations arising from the transactions edilmektedir65. Private law, contract and commercial law, tort law, property law, such as içermektedir66 areas.
Public law, constitutional and government bodies in various fields kapsamaktadır67 transactions.
In addition, the distinction between criminal and civil jurisdiction konusudur68 question.
In the UK courts inferior court first (lower court) and the superior court (the superior court), divided into two. There is a definite advantage in terms of duties and authority of the superior court. Therefore, the trial court in a case sub-tasks and sub-degree to the jurisdiction of the court to enter the opening with the top rating in court can be opened directly. However, the court in this case, the lower degree of upper degree gönderebilir69 court.
1. Lower Courts of Law Degree (Civil Inferior Courts) 70
These courts are available all over the country Magistrates 'Courts71 and Country Courts72' stop.
Magistrates 'Courts' is located in the magistrates have not studied law (justice of the Peace). Mainly on issues related to criminal law jurisdiction of those courts. Generally, small theft, extortion look at the events. Mümkündür73 proceedings usually simple to say that. Yoktur74 not have to have the jury members. However, the jury necessarily must have a severe punishment in case of a special court called the Crown Court75 authorized.
Private law relations, Magistrates' Courts are mainly responsible for family law. The amount of child support between the spouses, children inside or outside marriage, alimony request, the decision-making separation, custody rights over children, adoption is quite a wide range of issues such as the approval authority sahiptir76.
Country Courts' purpose flour, private legal relations of parties in disputes arising from them is less than the amount or value is to provide a solution as quickly as possible with a trial.
2. Top Degrees Law Courts
a. High Court of Justice77
High court of justice of the courts of first instance and the lower rating as the court of appeals is responsible for their decisions. Country Court 's High Court of Justice to place the end of the duty of the authority başlar78. Litigation over the issue of the value of the amounts of certain real property and equity cases in excess of the amount of certain cases in the High Court of Justice shall be authorized again. Despite all these rules, High Court Justice in a case judge wants to look at the lower values. In such a case, Country Court 'to send and not send a completely left to the discretion of this court.
b. Court of Appeal79
This court is overlooking the affairs of private law and criminal law consists of two separate affairs minister. High Court 's, Country to a certain extent, Court of criminal law and private law and the Court of Appeal to appeal against decisions about to apply. Here, the decision is based on the interpretation of legal checks. Yet the determination of fact by the court of first instance depends. This court does not accept new evidence, new evidence submitted tutmuştur80 subject to very stringent requirements.
c. House of Lords81
House of Lords, both England and Scotland and Northern Ireland have their own separate schemes for the court of the biggest high court. Court of Appeal in reviewing the applications against the decisions of court officials deadline. Vakıalarla this court can not decide on either accepts or rejects the application. Application is accepted, the case, again, the trial court to decide about the fact gönderilir82.
d. PRIVY Council
This institution rather than the court, the king or queen is an institution engaged in legal consulting. To base their decisions, not just British laws, as well as consideration of the case emerged in the country's local law alır83.
II. ORGANIZATION OF AMERICAN JUDICIAL
British law as a distinctive form of American legal thought etkilenmiştir84. However, in Continental Europe with the American civil proceedings civil proceedings, English law compared with the Continent Avrupasına, taşımaktadır85 more similarity.
The country's federal structure of American law, the courts system belirler86. One of the most prominent feature of this system, operating side by side at the federal level and the federated states, the courts varlığıdır87.
In the U.S. is not the only federated states, the federal government also has several court. Supreme courts, at the beginning of this comes from Court88. 18. century in the courts of first instance primarily Court89 District, then the Court of Appeal90kurulmuştur appeals court.
Federal court system of states is quite different. Simple events are seen by judges of peace. The judges are usually people who have not studied law. This procedure of trial judges use a very acid.
Large cities have Municipal Court. The more educated judges in courts, usually traffic works, small businesses look at criminal law and civil affairs. Every federal appellate court decisions gave them the state is high.
The majority of federal courts are the state of civil law relations. This work is authorized under certain circumstances these are the Federal Constitutional Court in counted. For example, if the U.S. side of the case, the trial of the case opens the federal laws based on one of the parties in different states, If they (if different from residence), the Federal Court yetkilidir91 exceeds a certain amount in the case.
CONCLUSION
Legal way of thinking in common with the historical past, the most important influence the formation of community law ölçütlerdendir. Of course in legal circles in the country, although many similarities in terms of court procedures sometimes differ from each other.
Continental European countries, including legal system when, in general, observed that the separation of public law and private law. In addition, the organizations of the court of first instance (civil courts, criminal courts, etc..) And is shaped as the top rating of the courts. French judicial organization, especially Italy, Germany and many European countries has affected the trial procedure and organization of the judiciary in these countries is of proximity.
Common Law System in the United Kingdom at the current organization of the judiciary and the judicial organization in the United States are examined, a significant feature of this system, unlike continental Europe of the rule of law and not by the rules of written law, "the event law" is shaped by the so-called criteria. Although the similarities between the trial procedure of the United States and Great Britain, the legal solution in terms of the methods of the U.S. system of Continental Europe to Britain is thought to be closer than that.
Around the Anglo-American Law within the framework of the theory of comparative law (Common Law), Legal Environment of Continental Europe with the style of one of the most important factors determining the form of legal thought özelliklerdir1. For example, the German Commercial Code are available in the "right and true view" theory (true and fair view) based on the true problem is not the same everywhere and the truth emerges. "Truth" Is it the same everywhere? This concept in the UK is the money? Here are the questions and issues like that, different legal environments olmaktadır2 cause.
Notable features of the method of legal thought in continental law, and all legal areas is based on abstract legal normlara3 olmasıdır4 been systematized. British Common Law 'when there is the traditional method of a law based on the event
Common Law 'in the courts of law and the development of previously issued in this way takes place depends on the decisions of the court. In contrast, Continental Europe 'in the development of the abstract and general rules of law in the form of putting çıkmaktadır6.
One of the general differences between the two legal environment, based on case-law of the science of the Common Law and Continental Europe, whereas olmasıdır7 scholastic science. Because England was dominated by lawyers at large, Continental Europe 'in the profesörlerdir8.
One other difference is related to the understanding comments. Continental Europe 'for the unforeseen problems, even if the norm is reached with the interpretation that what is envisaged. In the Common Law system, which the judge will reach a decision yakındır9 impossible to know in advance.
In addition, Continental Europe, corporate law in the abstract, the Common Law at the concrete is considered to be. In this context, Continental Europe 'eksizliği understanding of the legal system in question, while the Common Law' by examining the decisions to develop the most appropriate solution çalışılır10.
Common Law legal system and legal system of Continental Europe in this way after putting the basic differences, the continuation of the study, taking into consideration the scope of work in terms of law of Continental Europe, Latin and German legal circles within the framework of separation, and the organizations of the trial court proceedings on the properties of these two systems will be discussed.
PART ONE
Continental European Law
I. As General
The common feature that can be included in the legal community in continental law system, Roman law or Roman law may affect the historical process, these countries-affected countries to be expressed in terms of impact on other countries edilebilir11. To be sure, the legal problems of these countries in the Common Law System of countries, especially with the United States, mostly yakındır12. The biggest difference, in terms of judicial procedures and methods of solution çıkmaktadır13.
At this point, in Latin, French and Italian law as the basis of law in terms of environment, in terms of the German legal environment would be appropriate to examine the procedures for the trial of German and Swiss law.
II. LATIN LEGAL ENVIRONMENT
A. FRENCH JUDICIAL ORGANIZATION
French law, especially civil trial etkilemiştir14 many countries around the world. However, especially in Italy, the French Civil Code etmiştir15 serve as a model to various countries.
1. General Features and Principles
Ø The principle of independence and impartiality of Judge:
Impartiality of the judge, the judge could not be assigned automatically, just in case the decision may positively or negatively, and stated that this decision had to give eder16. The independence of the judge, that the administration karışamaması gelir17 judiciary. Both of these concepts, is applicable to judges, prosecutors, depending on directives in regard to becoming more limited as the uygulanır18.
Ø Recognition of equal procedural rights and defense of the right to:
Cases seen in the same procedural rights to parties the right to defend the well-known and provided in full. Equal recognition of procedural rights, files and documents to be seen, given the right to rest, gıyaptaki as a result of a decision to invite only be given in compliance with içermektedir19.
Ø The principle of public openness:
The principle of openness applies to the public for hearings and decisions. Yapılabilir20 hearing closed to the public for security reasons.
2. Courts Organization
There are two basic ayrım21 French judicial organization:
that law and criminal courts
that the courts of the Administration.
Arm of the courts of law and punishment, the court's first degree is a very special one. Subjected to discrimination in the courts of appeal, and other reference sheet date. Authority among the courts of first instance for resolving the problems to be resolved and a high court vardır22.
a. Law Courts
Law courts, courts of first instance, appeal courts (jurisdictions d 'coverage) and to the courts of appeals are divided into three.
Separation of the competent courts of first instance courts of general and special mention konusudur23.
Cour d 'appel, one court of second instance. Here, each step of the courts of first instance for vardır24 Senates.
Cour de cassation, the Union law aimed at ensuring that the courts and the appellate mahkemesidir25 above. The appellate court, five-law, three general, a trade, has a job and social security tribunal. Cour de cassation, supervises the implementation of law, not the event. The appellate court decision contrary to the court of revision düzeltmeyip, infects. After the recent reforms, appellate court also given the privilege of making the final decision. The appellate court decision to send back to the trial court and disrupt, but it is not connected to the first-instance court. The appeal court is given a different, an event gider26 general assembly.
b. Criminal Courts
Criminal courts, investigative judge and the appellate court's investigative office of the courts of his investigation and the decision may be subject to discrimination in the courts. Should be noted that the investigative judge in charge of the case till the opening. Necessarily the most competent person crimes investigative judge. Misdemeanor crimes and the involvement of discipline is weaker. If there is sufficient basis for opening an investigation of the case or the judge closes the file gönderir27 competent court for consideration.
Decision in terms of division, it is possible to say that the three basic distinction. Violation of laws, misdemeanors and offenses (criminal court is heavy.) Authorized a special bölümlerdir28 terms.
c. Administrative Courts
Administrative courts in general are similar to civil courts. There are more than one special court and a three-stage system mevcuttur29.
Conseil d 'Etat, court reporting and opinion organ.
Cours administratives d 'coverage, the administrative court of appeal niteliğindedir.
Tribunaux administratifs, administrative courts.
d. Dispute Tribunal (Tribunal des conflits)
The task was set up to resolve disputes about.
Negative jurisdictional disputes that count every step in case of dispute the court's self-görevsiz court judge to find a way permits. In addition, the court thinks görevsiz also send the case directly.
Positive task uyuşmazlıklarındaki administration, the administration of the courts the power to rape the other against their protected status.
Conflict court, one can give a decision on the status of the case, decisions about the dispute when it comes to the subject of the case revealed.
3. Law of Limitation of Roads
In France, the administration falls within the jurisdiction of the courts of individual types of litigation has led to problems counted. Therefore, the basic pillars of the French administrative law and public service to the public power, is also a measure kaçınılmazdır30 task.
4. Evidence Değerlendirilmesi31
French law on the evaluation of the evidence made a distinction between civil and criminal courts. Law courts interpret the regulatory process, but the law can not do moderation. Criminal courts, statutes and administrative jobs and interpret the law as well as the eligibility check. Indeed, trial in criminal cases, indispensable.
B. ITALIAN JUDICIAL ORGANIZATION
1. Ordinary Courts (Magistratura ordinara)
Civil and criminal jurisdiction of the courts in charge are as follows: Magistrate judge, magistrates court, court of First Instance, the Court of the application, the Appellate Court, Youth Court, Judge of Prisons, Prison Mahkemesi32. In this concrete case, the courts shall decide whether they are in charge.
2. Civil Procedure
Civil trial tasks in the first degree is organized in three stages.
Magistrate judge the most important tasks, a certain amount of money which is moved on the subject of articles on the subject of lawsuits and the money is still a certain amount of traffic conflicts.
Magistrate's courts, regardless of the value of the subject of controversy, the attacks on tenure, disputes over immovable properties, rent, lease revenue bonds and resolve disputes arising from joint possessions. In addition, magistrates' courts, tax, some family law work, not be determined if the value of the subject of controversy in charge.
Courts of first instance, magistrates and magistrates' courts, unlike the three judges judge, and decide together verirler33 acts.
First Instance Courts, magistrates 'courts and magistrates' court judge acts as a reference against the decisions. Court of First Instance against the decision of court of application of the high court. High court will decide if the delegation and the delegation of judges is composed of three judges.
Highly as the court of appeals court decisions of all applicants, in terms of the decisions of magistrates' court of first instance judge in charge of the decisions and the application may be made. Decision of the trial court referred to it will break again, with the opinions of the court of appeals in deciding bağlıdır34. The appellate court, the court of first instance decisions in terms of law, compliance checks.
3. Criminal Procedure
The courts of first instance of criminal law consists of four stages:
Magistrates Court, the penalty will not go four years of crime, misdemeanor charge of minor crimes and given just fine. Moreover, the objections also responsible for administrative and criminal penalties.
High Criminal Court of first instance, responsible for grave crimes.
Youth courts responsible for crimes committed by young people under the age of 18.
The high court and court of second instance in Criminal Court in charge of the application. Assize Court Assize Court of second instance against the decisions of first instance on the merits of the application and, if the task belongs to the trial court judge District Court against the decisions of the query examines the applications.
The appellate court, as the last instance court against the decision of the applicant and the applicant appeals against the decisions of the court of first instance are way off the review application. This examination consists of inspection of law uygulanmadığına of law is applied correctly.
Prosecution, the Supreme Court, high courts, courts of first instance, youth courts and magistrates' courts is located.
4. Administrative Jurisdiction
Administrative jurisdiction of the Constitutional arrangement itself from kaynaklanmaktadır35.
Administrative organization of the courts within the judiciary, is different from the ordinary courts teşkilatlanmadan. General administrative courts and the administrative judiciary is evident difference between the special stages.
General administrative judiciary, a certain subjective rights and legitimate interests in administrative disputes arising from regional administrative courts in charge of infringement. Application is made against the decisions of the courts of the state administration şurasına. Complaints against the decisions of the State Council in the court of appeal is made.
Special administrative judiciary, the Court 's decision-making on a mission and legal authority to solve disputes about the authority of the court and the court stated publicly owned waters. In addition, although not part of the administrative jurisdiction of the courts handle the case-law according to the administrative jurisdiction of military courts are subject to the rules.
III. GERMAN LAW ENVIRONMENT
A. GERMAN JUDICIAL ORGANIZATION
1. The German Law on Legal Separation
a. Separation of Private Law-Public Law-Criminal Law
In Germany, both academic learning and practice, law, private, public and subject to discrimination in the form of criminal law tutulmaktadır36.
Public law, authorize public power or obligation under the rules and put the law refers to the organs of state and devletlerüstü.
Private law, there is no law to sujesi.
Criminal law, essentially a part of public law, but as the general layout of the money or the freedom of disruptive behavior under threat of sanction that can be said in this area.
b. Procedural Law-this material Legal Separation
Material law, legal rights and obligations of sujelerinin, regulates the formation of legal institutions. Procedural law, the rights in case of violation of a set of rules governing the procedures for searching. The trial law, duty and authority of this kapsamdadır37 distribution.
2. Courts Organization
a. General Features and Principles
Basic norms of the judicial organization of the German Constitution düzenlenmiştir38. In addition, the regulatory framework of the judicial organization of the Law on Organization of the courts' place in the alır39.
Civil trial procedure, the French Civil Trial Procedure Act 'significantly influenced by the development göstermiştir40.
Court decisions, case law of the case sides into a dönüşmedikçe bağlar41 only.
The courts decisions are issued by judges and judges only with law and the law depends. Applies the principle of the independence of judges. Both served as judges in accordance with this policy is independent of both personal. Litigation, while no individual, government or government representative can not influence the judges.
In Germany, as a rule, oral hearings are open to the public. For security reasons, the principle of publicity can be restricted or completely dispensable.
b. General Building
In Germany, including all the judicial organization of a high court yoktur42 general. Courts in various degrees in a hierarchical order. The trial begins with the lower rating in the courts and with the top rating in the courts of different ways of judicial appeal against the decision of the lower instance court.
Judicial many ways, but most important, the court of appeal application, appeal and objection. Trial court fully review the application again. Appeal not only re-examined the legal problem. Appeal to the individual problems are handled in the trial. Degree in charge of the courts in certain regions.
Ordinary courts, civil and criminal courts are in the form of binary distinction. Law courts are authorized in the resolution of problems arising from civil law relations. Criminal trials in the courts of criminal law and disciplinary affairs, is authorized.
Most courts, magistrates' courts of lower degree, on the courts of first instance courts, courts of first instance are high on them. Ordinary courts vardır43 the top of the Federal Court.
Besides the usual business of the courts located in the courts. These courts are authorized to disputes arising from business law.
Courts of general administration, social and fiscal court the authority to court not authorized to handle disputes arising from law.
Social security courts are authorized to resolve disputes arising from the social security law.
Disputes arising from the tax court is authorized to tax law.
The high courts of the Federal Government the power to decide on law as a rule, only the Federal sahiptir44. Authorized federal courts of the states on issues related to the Federated States jura. Essentially, the federal law distribution of federal authority in question is a clear değildir45 hukuklarda. There are some issues on federal court jurisdiction. For example, issues related to military discipline, the military court of first instance court, the application of the Federal Administrative Court of the court 'dir46.
The German judicial system is a special place in the Constitution vardır47 proceedings. Federal Constitutional Court in each of the states are. The federal courts of the state constitution, federal law designated in accordance with the rules of trial solutions in disputes.
The Federal Constitutional Court in Germany and most respected kurumlarındandır48 highest court. Constitutional issues concerning the constitutionality of the Constitutional Court 'settlement within the framework of the regulations specified by the bonds. This court's decisions on all the constitutional organs bağlayıcıdır49 organs.
European Union courts in Germany also indicated the increasing importance. ATAD50 most important of them. These courts decide particular cases of pre-trial procedure set out in EU law works with. According to this interpretation of European law by the courts of member states in case of doubt about the legal issue in a matter of ECJ to send, the ECJ to issue a binding decision the court has brought about the problem.
B. JUDICIAL ORGANIZATION SWITZERLAND
Switzerland in general, as the center of the civilized addedilmektedir51 judiciary. Historical process, the Switzerland of the civilized mode of trial, the French law to say that interact with mümkündür52. However, the Swiss high court procedures in the courts of law rather than German, French law yakındır53.
1. Federal Court
The highest judicial organ of the Federal Court. The federal court judges are elected by the Assembly. According to the Federal Court Federal Court kanununa54 the procedures of this organization are determined by law. In this regard, the Federal Court is divided into sections according to the fields.
The Federal Court, the Constitution of the claims for breach of, cantons and villages of the claims of powers has been violated, the federal government and the cantons or the cantons decide disputes between the public law bonds. In addition, criminal and administrative law disputes from the decision bonds. There are certain degrees of the Federal Court in the Civil law. Execution, bankruptcy proceedings at the federal level jobs in Switzerland to be a law karakteristiğidir55.
2. Federal Law and cantonal law
According to Swiss law, the authority of civil and criminal proceedings cantons. Therefore, the organization of the judiciary and civil trial law by the düzenlenir56 cantons. As a result, Switzerland to a very large number of organizations in different jurisdictions, the law of civil and criminal trial procedure has.
The general principles of the proceedings, the legal tools and the Federal Court the Federal court of jurisdiction to make rules for directly regulated by federal laws. Regulated by federal laws or administrative rules relating to the judiciary and the military.
Effects, especially in the field of civil trial law, the Federal Law cantonal jura.
3. General Structure of the Organization of Courts
a. Law Courts
Switzerland at the ordinary civil courts are authorized to work all the law and the law authorized a special law which the courts are competent in certain areas kılındığı. In addition, the special courts of law serves as the commercial courts. Low value of the subject of litigation in the courts of first instance or by a single judge görülür57 peace.
Some cantons for the two degrees öngörmüşlerdir lawsuits. First Instance Court of first instance is usually the second degree (reference the courts) are usually referred to as the canton or the high court.
Legal proceedings in civil trial law, a highly uniform federal court has a duty to support the application. One of the parties to a legal trial, one of the cantons in the Federal Court or the Federal Government as a single-instance court decides. In addition, the subject of litigation in the value of a particular value, and direct the Federal Court to cantonal law başvurulmuşsa or appearing in certain legal proceedings, the Federal Court 'had left to the Federal Court as the trial court decides one again.
b. Criminal Courts
The organization of criminal courts, judicial procedure, criminal law and case law in civil law as well as the authority shall enter into cantons. However, the administrative regulations of the federal criminal law and military criminal trial yapılır58 context.
c. Administrative Jurisdiction
Both the federal and cantonal levels of administrative jurisdiction operates. First Administrative Judicial Administrative Code rules relating to the judiciary 'is located in. In addition, the rules relating to the judiciary has a lot of administrative regulation. Cantonal courts and administrative courts or the administrative rules for the organization with its own regulatory authority sahiptirler59 laws.
CHAPTER TWO
Anglo-American Law (COMMON LAW) 60
I. ENGLISH COMMON LAW 'I
A. GENERAL FEATURES
English common law, including both the French legal environment of the continental European legal environment schemes, including both the continental European law, German law is quite farklıdır61 schemes. The basis of this difference, since British law, high courts in a very long historical process created by the event hukukuna62, in rare cases, the areas still held by the courts of law are discussed metinlerine63 dayanmasında lies.
Common Law ', some legal institutions, procedures and traditions very different from judging whether the difficulties encountered when comparing the Continental Avrupasındaki institutions. There are also Civil Code, Commercial Code, such as whether the Civil Procedure Law, the legal concepts that are systematically arranged in not in question. This technique of law legal system, legislation or interpretation of the law or the facts of life, not according to the conceptual determination of the court decisions are based on groups and events. In addition, this legal system carefully discussed issues of vital relations decisions taken under observation in a systematic manner and not abstract, concrete and gerekçelendirilmektedir64 historical perspective.
B. ENGLAND IN JUDICIAL ORGANIZATION
UK 'private law, expressed in their daily legal relations arising from the transactions edilmektedir65. Private law, contract and commercial law, tort law, property law, such as içermektedir66 areas.
Public law, constitutional and government bodies in various fields kapsamaktadır67 transactions.
In addition, the distinction between criminal and civil jurisdiction konusudur68 question.
In the UK courts inferior court first (lower court) and the superior court (the superior court), divided into two. There is a definite advantage in terms of duties and authority of the superior court. Therefore, the trial court in a case sub-tasks and sub-degree to the jurisdiction of the court to enter the opening with the top rating in court can be opened directly. However, the court in this case, the lower degree of upper degree gönderebilir69 court.
1. Lower Courts of Law Degree (Civil Inferior Courts) 70
These courts are available all over the country Magistrates 'Courts71 and Country Courts72' stop.
Magistrates 'Courts' is located in the magistrates have not studied law (justice of the Peace). Mainly on issues related to criminal law jurisdiction of those courts. Generally, small theft, extortion look at the events. Mümkündür73 proceedings usually simple to say that. Yoktur74 not have to have the jury members. However, the jury necessarily must have a severe punishment in case of a special court called the Crown Court75 authorized.
Private law relations, Magistrates' Courts are mainly responsible for family law. The amount of child support between the spouses, children inside or outside marriage, alimony request, the decision-making separation, custody rights over children, adoption is quite a wide range of issues such as the approval authority sahiptir76.
Country Courts' purpose flour, private legal relations of parties in disputes arising from them is less than the amount or value is to provide a solution as quickly as possible with a trial.
2. Top Degrees Law Courts
a. High Court of Justice77
High court of justice of the courts of first instance and the lower rating as the court of appeals is responsible for their decisions. Country Court 's High Court of Justice to place the end of the duty of the authority başlar78. Litigation over the issue of the value of the amounts of certain real property and equity cases in excess of the amount of certain cases in the High Court of Justice shall be authorized again. Despite all these rules, High Court Justice in a case judge wants to look at the lower values. In such a case, Country Court 'to send and not send a completely left to the discretion of this court.
b. Court of Appeal79
This court is overlooking the affairs of private law and criminal law consists of two separate affairs minister. High Court 's, Country to a certain extent, Court of criminal law and private law and the Court of Appeal to appeal against decisions about to apply. Here, the decision is based on the interpretation of legal checks. Yet the determination of fact by the court of first instance depends. This court does not accept new evidence, new evidence submitted tutmuştur80 subject to very stringent requirements.
c. House of Lords81
House of Lords, both England and Scotland and Northern Ireland have their own separate schemes for the court of the biggest high court. Court of Appeal in reviewing the applications against the decisions of court officials deadline. Vakıalarla this court can not decide on either accepts or rejects the application. Application is accepted, the case, again, the trial court to decide about the fact gönderilir82.
d. PRIVY Council
This institution rather than the court, the king or queen is an institution engaged in legal consulting. To base their decisions, not just British laws, as well as consideration of the case emerged in the country's local law alır83.
II. ORGANIZATION OF AMERICAN JUDICIAL
British law as a distinctive form of American legal thought etkilenmiştir84. However, in Continental Europe with the American civil proceedings civil proceedings, English law compared with the Continent Avrupasına, taşımaktadır85 more similarity.
The country's federal structure of American law, the courts system belirler86. One of the most prominent feature of this system, operating side by side at the federal level and the federated states, the courts varlığıdır87.
In the U.S. is not the only federated states, the federal government also has several court. Supreme courts, at the beginning of this comes from Court88. 18. century in the courts of first instance primarily Court89 District, then the Court of Appeal90kurulmuştur appeals court.
Federal court system of states is quite different. Simple events are seen by judges of peace. The judges are usually people who have not studied law. This procedure of trial judges use a very acid.
Large cities have Municipal Court. The more educated judges in courts, usually traffic works, small businesses look at criminal law and civil affairs. Every federal appellate court decisions gave them the state is high.
The majority of federal courts are the state of civil law relations. This work is authorized under certain circumstances these are the Federal Constitutional Court in counted. For example, if the U.S. side of the case, the trial of the case opens the federal laws based on one of the parties in different states, If they (if different from residence), the Federal Court yetkilidir91 exceeds a certain amount in the case.
CONCLUSION
Legal way of thinking in common with the historical past, the most important influence the formation of community law ölçütlerdendir. Of course in legal circles in the country, although many similarities in terms of court procedures sometimes differ from each other.
Continental European countries, including legal system when, in general, observed that the separation of public law and private law. In addition, the organizations of the court of first instance (civil courts, criminal courts, etc..) And is shaped as the top rating of the courts. French judicial organization, especially Italy, Germany and many European countries has affected the trial procedure and organization of the judiciary in these countries is of proximity.
Common Law System in the United Kingdom at the current organization of the judiciary and the judicial organization in the United States are examined, a significant feature of this system, unlike continental Europe of the rule of law and not by the rules of written law, "the event law" is shaped by the so-called criteria. Although the similarities between the trial procedure of the United States and Great Britain, the legal solution in terms of the methods of the U.S. system of Continental Europe to Britain is thought to be closer than that.
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