Underlying Principles of the Civil Law System

Question 1

What are the underlying principles of the civil law system?(9)

Answer 1

• Resolution principle
• Principle of finality
• Procedural fairness
• Procedural privity
• The adversarial system
• Principle of public accountability
• Principle of disclosure
• Obligation to give reasons
• Incidence of costs

Question 2

What is the resolution principle?

Answer 2

The idea that the civil law system is designed to provide finality of disputes between two private parties. Civil law is not designed to punish people - rather allow for compensation to be sought if they can prove their rights have been infringed by another party.

Question 3

What is the principle of finality?

Answer 3

Similar to the resolution principle in that it is intended to resolve a dispute and the conflict. Means that once the matter has been heard by the court, it cannot be heard again (except for an appeal). This principle allows for just outcomes as the matter will come to a resolution, and cannot be repeatedly revisited over time. Allows parties an opportunity to seek justice, but not have a legal issue follow them repeatedly.

Question 4

What is procedural fairness?

Answer 4

• Relates to judicial independence, and rules of evidence and procedure.
• Judge will decide a case based solely on the merits of the case and strength of evidence and argument.
• Also known as natural justice it is also a key element of the criminal law system.

Question 5

What is procedural privity?

Answer 5

• Only people with a direct interest in the matter can be involved in the case.
• Third parties with no direct involvement in the case or outcome are not allowed to be a party to the case.

Question 6

What is the adversarial principle?

Answer 6

It is the responsibility of the party to bring the matter to court and put forward their case. The judge or third party do not have any legal responsibility related to the case itself.

Question 7

What is the principle of public accountability?

Answer 7

• Courts are open to the public- this allows the public to see that justice is being done.
• Allowing the public to view trials they can trust the system as they can see it is working the way that it is supposed to.

Question 8

What is the principle of disclosure?

Answer 8

• Both parties must disclose the full extent of their claim and defence in the pleading stages
• Both parties must provide each other with all relevant information in the early stages of the dispute resolution process
• Having all parties on the same page and with access to all information allows the parties to attempt to resolve the disagreement as quickly as possible

Question 9

What is the obligation to give reasons?

Answer 9

• Judges must give reasons for their decisions
• This shows a judge has considered all evidence when deciding the case.
• It also allows the parties to determine whether an error of law has been made (an if an appeal should be lodged).

Question 10

What is the incidence of costs?

Answer 10

• Normally, costs follow the trial.
• This means the party who loses will pay their own legal cost and the costs of the other party.
• This encourages people to settle their cases outside of court, to avoid possibly having to pay all of the costs involved in the trial.
• In SA, there can also be financial penalties of rejecting a reasonable offer before trial. This can serve as an effective deterrent to cases that are unlikely to win at trial.
• This rule is not followed in the NT, where all parties must bear their own costs.