Filing of correspondence exchange between legal counsels regarding a possible agreement between parties. In Italy, the court of last resort is the Corte di Cassazione which resides in Rome (Grossi, 2010). A Comparative Analysis Between Italian Civil Proceedings and American Civil Proceedings Before Federal Courts. After this, the public prosecutor can, if necessary for investigative reasons, order that certain documents are kept confidential and/or not published. The main source of law in Italy is the Italian Constitution followed by the constitutional laws which happen to be the same for the United States where the United States Constitution is the highest form of law (Lawyersitaly, 2020). On the other hand, similar difficulties went arising in Continental Europe: around the 6th century, Roman law was the wide legal basis for everyone in the land, but due to its vastness it was impossible to reach uniformity of application; the law used to change depending on the people to whom it was to be applied, the phenomenon of personalit del diritto5 was wide spread. In Italy no such oath exists. So, in Italy judges just look at the law and decide the case at stake without being bound by previous decisions, which therefore are only persuasive (in particular the decisions of the Supreme Court of Cassazione). Knox verdict: how the Italian legal system works - Channel 4 News From the beginning of civilization and organized society negotiations have occurred to solve disputes. 28 ottobre 1940) -Constitutional Reform Act, 2005 That the claim is proved or not proved and that consequently the losing party is obliged to restore the claimant (for example, by paying a sum of money, by carrying out a specific action (. Thus, while theory distinguishes them, in practice both systems aim to assure the equality of treatment with a system of precedents which are binding by reason of authority according to the English Stare Decisis doctrine, and by authority of reason according to the Italian Constant Jurisprudence doctrine. If the case is serious, in particular, they are effectively in charge of the investigation. Comparison Conclusions Bibliography. These are certainly important problems but they cannot be addressed without a clear understanding of how the Italian criminal justice system is set up to function. [16] Art. Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. Therefore this constant jurisprudence will define what is called the living The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. The Supreme Court of Cassation and the Constitutional Court are both based in Rome. The law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). They are entitled to introduce evidence, submit documents, and question witnesses both for and against their client. According to case law, for the standard of proof to be met, the court must find that it is reasonably likely that the alleged facts happened or that it is more likely than not compared to other facts alleged during the trial. Despite this, traditionally case law has always played a large role in law-making. EU legislation (EU directives and regulations) (see. Hence, it follows that, according to the Stare decisis[4] principle, which governs the English system, whenever a judge comes to adjudicate cases with similar features, s/he must follow the precedent stated in the prior decisions, so that similar facts yield to similar results in order to guarantee an equal treatment for all. Six children were among the dead after a Russian missile attack on Uman; Russian soldiers are likely being placed in improvised cells consisting of holes in the ground as punishment, the UK's MoD . However, at appellate levels the same judges sometimes sit on both types of courts. View examples of our professional work here. Books: Courts in Italy are divided into their specialties which include civil courts, criminal courts, and administrative courts. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. Worked as an honorary judge for at least six years without revocation. Precautionary measures apply to those cases in which: There is a real and actual danger that the gathering or the authenticity of evidence could be compromised. Moreover, when a case must be adjudicated on the basis of a statute, the latter gets absorbed in the jurisprudential circuit and, from that moment on, the sentence that rely on the given statute will become a binding judgement which will be followed by lower Courts and that will be cited as a Precedent instead of the statute itself. It is true that in common law decisions are considered law according to the Stare Decisis principle, but it is as much true that in civil law systems, although decisions might have only persuasive force, the more cases are decided with consistent reasoning the more weight they acquire: this is the phenomenon of Constant Jurisprudence, a way to give quasi legislative effects to the Italian pronounces without violating the principle of separation of powers. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( The courts of appeal review the judgments of the courts of first instance. There are many similar avenues and techniques for identifying the facts and evidence when applying them to both legal systems. This means that they are not subject to external pressure of any kind when they execute their functions. Civil liability is based on the principle of the burden of proof. Civil law proceeds, with a deductive method of reasoning, from abstraction (codes[1] contain general principles which apply to every case that could possibly be brought before the court) to factually specific scenarios, in which judges apply the principles stemmed from the code to the concrete dispute. The President of the Republic is the head of state elected by Parliament in a joint session of its members and represents national unity. Info: 1539 words (6 pages) Essay Thus, here we have an inductive method of reasoning, in which law arises from specific cases to become an abstract rule of general application, crystalized in the judicial precedents. The examining committee is appointed by the Superior Council of the Judiciary. How to convert Italian grades to American and U.K system? There are two main exceptions to the normal legislative procedure: In general, the judiciary has no power to control legislative and executive actions. In many ways, it is very different from the system in the United States. See Young v. Bristol Airplane co., 1944. Looking for a flexible role? The role of the precedent in the English and Italian judicial system. (g7J$&r^3*;v|d) *A,l ii @!P2Yx KD-KGHBFcFLY+3C04#DQ5"a j8 *2I1H8l 0;.2j 1AS Xxy&s7?4q2~^fasT$fdyKD`^DP @1,`S/47CY'%@ &d`G In the inquisitorial system which Italy uses, the judge plays a more active role in the proceeding. (2020). There is no specific pre-trial phase, although there are specific precautionary proceedings which provide an independent examination of evidence before trial. On the other hand, in England lower courts are bound to the Supreme Court precedent and cannot overturn it even if they disagree; they have to apply it, with the only chance to express their disagreement in a dissenting opinion which will invite the party to appeal the decision and which will hopefully persuade the Supreme Court to overrule their judgement. Applicants for the public competitive examination must have a law degree and one of the following: A PhD or other postgraduate degree from a law school. These judges are appointed for life and can only be removed through impeachment and a new judge is appointed when there is a vacancy through impeachment, a judge dies, or a judge resigns (Baum, 2013). Ordinary laws, law decrees and legislative decrees. In fact, these decisions will have precedential authority on future cases with similar features, binding judges who are to make future decision just as any other law does: decisions become law itself. Avery, The English Legal System Likewise the Appeal Court can exceptionally overcome its pronounces. However, since Italy is a member of the European Union, which makes the European Union legislation the next source of law (Lawyersitaly, 2020). In Italy, there is nothing similar to the Federal courts in the United States. The jury system is seen as an integral part of the legal system, even though only 1% of criminal cases go before a jury; among the general public in the UK, juries are more trusted than judges, magistrates or government ministers, and the right to a jury trial is seen as more important even than the right to political protest. [8] The judge can distinguish between two similar cases due to some particular details that are decisive to a distinction, nut can also individuate a completely new and never adjudicated situation: this eventuality is called matter of first impression. [9] Civil code, Penal Code, Administrative code etc. The executive only possesses the emergency power to declare a state of emergency under the laws on civil protection (see. This is a difficult decision to interpret, but the criteria to make an appeal on points of law and the limits to the courts jurisdiction are flexible. The role of the precedent in the English and Italian judicial system Doing Business in Italy: Challenges & Advantages - Wolters Kluwer This should also help clarify some of the questions posed by non-academic writers and journalists during the Kercher case: prosecutors were not abusing their power, they were in fact asserting their legally defined central role in the justice system. Contextual background for the comparison 2. Innocent until proven guilty? Not under the EU's justice system British, French and American Systems of Justice Compared 99 enee, we shall focus on the court system in En-gland.6 There are two judicial structures in England - one for civil cases and one for criminal cases. Large numbers of rapes go unreported. However, it must always be stressed that the theoretical difference between Stare Decisis and Constant Jurisprudence, although in practice may lead to same results, remains significant: regarding cases with similar features,39 English lower Courts cant do anything but applying the binding precedent given by the Supreme Court, while Italian Courts can deliberately avoid it and decide the case for themselves. It can also obtain additional evidence. Reding speaks as if the UK has no police force or justice system, when in fact our traditions of habeas corpus should be held up as a beacon of fairness. As a consequence of what we have seen, the heritage of English history is now a system in which there is not a written constitution, and nonetheless there are unwritten constitutional principles to rely on[3], namely the principle of separation of powers, of supremacy of the Parliament and of the rule of law. BAME communities make up 14% of the UK population, but represent 25% . The differences between them are of course several and significant, so that one might think that they should be referred as the antipodes of the legal system conception, with no chance of commixture from one to the other. Grossi, S. (2010). The Constitution is: In written form. Major Differences Between the US and UK Legal Systems The Constitution is rigid (as opposed to a flexible constitution), since modifying it involves a more complex process of reform than that needed for amending ordinary laws. The Constitution adopts a model of equal bicameralism. State courts can hear almost any kind of case including federal issues as well as constitutional ones, but they are subject to the oversight of the United States (Baum, 2013). South Africa is estimated to have 500,000 rapes per year, Egypt 200,000, China 32,000 and the UK with 85,000 rapes per year. The Constitution prohibits the establishment of new extraordinary or special courts, except for specialised divisions in specific sectors which can be set up within the ordinary judicial bodies. According to reliable statistics, about the 70% of the world finds itself under a legal system identified in Civil Law or Common Law (around 44% of the States are under Civil law, around 27% are under Common law), so anyone who wants to truly dive into the study of matter must almost inevitably deal with at least one of those systems. Unless this standard is met, the defendant must be acquitted. The fact that English system is not codified influences, indeed, the task that their Courts have to carry out: not only deciding the case at issue, but also creating and developing new law if necessary.

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