Discusses the philosophy proceedings in the Common Law system
12/09/2012
In modern world exists two major procedural system to protect the legitimate rights and interests of organizations and individuals at the trial is proceeding inquisitorial system - mainly exist in civil law systems and adversary system - mainly exist in the Common Law system. The phrase "adversary system" is much literature in Vietnam has "litigation system" or "the procedure of litigation." However, this article will use the term "systematic procedure" to reflect more deeply and more clearly the nature of this system from the perspective of the philosophy of the proceedings.
Screening of the roots of the system process, the legal research that in the medieval period, this situation because of common land disputes, the region between the nobles and landlords. Disputes related to land, the region between the nobles often be solved by a match for the chair by the king. The fencing is organized on the basis of the traditional rules and strict ethical principles. Each knight will represent the disputed land owners. The goal of this battle is to this knight knocked down the other knights, or vice versa. Aristocrats, landowners knights win during the fencing will be declared the owner of the land, territory disputes. The knight participation game called adversaries or opponents. But have to say, systematic procedure is derived from the need to resolve land disputes, the region in medieval society.
According to Martin P.Golding in the article “On the adversary system and justice” the system of litigation is formed on the basis of accepting one of the concepts of justice that Socrates critical in the first book of the work of the republic: justice is helping your friends and harming your enemies. Opposition identifiable phrases such as "friends" and "enemies", "help" and "harm" showed fighting spirit, strong opposition on the way of access to justice. But Socrates also said justice must be an "art". This spirit has become the dominant principle, throughout the system during trial proceedings. Judicial system, as its name implies, is based on the principle of the two sides struggle to win in each case, each party will be the enemy, the enemy of the other side.
According to Stephan Lansman in his book "The Adversary System: A Description and Defense” the basic elements of the system for action emerged from the 1700s, but in 1800s, along with the strong development of the doctrine of personal freedom, the system procedure has been completed and development. The basics of systematic philosophy of action affirmed unequivocally localized advisory functions from the judge or the judge out of the jury. The decision of the judge must be objective and not be affected or distorted as much as possible. Judges must act as an impartial referee, without bias to confirm that the rules of evidence and procedures are strictly implemented and the parties are treated fairly in the process of data collection and trial.
The role of the system in action is to provide legal procedures, operational mechanisms necessary for the parties to present their case in an objective, fair as possible. System procedure is done in the resolution of civil and criminal cases. In criminal cases, the state tried to prove the accused guilty and have to fight, argue to prove their innocence. If the defendant was convicted, the prosecutor is the winner, if the accused is not guilty, the defendant is the winner. In civil cases, the plaintiff tried to prove the defendant guilty and shall try to prove they are not at fault. The legal argument in court is also held by the strict rules of procedure and evidence that the parties must strictly be followed.
Self-control is an outstanding advantage of the system to process. The parties will be satisfied with the outcome of litigation if they are able to control their behavior, activities for the incident. It allows the parties to argue, actively prepare for their work, thus creating most favorable conditions for the parties to reflect the nature of the incident in the course of litigation. Self-control to have a particularly important role in the criminal case because a prosecution by public authorities, but not completely dependent on the protection of the state (as well as agencies are perform the function of prosecution). But in civil cases, the parties can resolve differences without government intervention too deep.
However, the major weakness of the system for this procedure is the system tends to create a state of confrontation and hostility between the parties rather than resolve the differences in the path of peace and friendly. In addition, individual cases can be brought to court freely according to the decision of the parties should be able to lead to overcrowding in the courts due to lack of personnel and service facilities. High cost of the proceedings and the lack of equality in the legal representation will also affect the quality of the system to process. In addition, by relying mainly on the evidence and arguments presented between the two parties, in some cases, the facts of the case that can not be found.