Consequently, the influence of the Parliament on the development of law has increased immeasurably in recent years, with a legislative hyperactivity that brought to a process of statutorification of the common law principles developed throughout the years into detailed statutes of general application, while the influence of judges has correspondingly decreased, limited to administrate the justice at most interpreting the statutes if they let so and leaving the law- making task to the legislative body, more in accordance with the principle of separation of powers and of supremacy of the Parliament. This is a very important point: the Supreme Court in Italy does not review the facts of a case, so if the judges are unhappy with the previous decision, the case must be sent back to the Court of Appeal to be re-examined. England 3. Despite this, traditionally case law has always played a large role in law-making. The public prosecutor can also ask the judge to order the seizure of goods, property or documents related to the offence that, if still available to the suspect, could aggravate or extend the consequences of the offence or facilitate the commission of other crimes. The judges are represented by the Consiglio Superiore della Magistratura which is a body chaired by the President of the Republic and includes the public prosecutor of Corte di Cassazione, and university law professors and attorneys with fifteen years of experience (Grossi, 2010). American judges are lawyers who have been appointed to the bench and many of them still consider themselves to be lawyers unlike the judges in Italy. [7] Dissenting opinions constitute obiter dicta. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Advises investment funds, both Italian and foreign companies, listed and unlisted, as part of their ordinary and extraordinary business activities. 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. Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. 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 judgment must contain a description of de facto and de jure grounds on which the decision is based. Judges are bound by the law, not by the previous decisions of higher courts. Chairman of the supervisory boards of national and international companies, including listed companies and public law agencies. Federal courts have limited jurisdiction where they can only hear cases when a federal question is raised (Baum, 2013). The Constitution adopts a model of equal bicameralism. Unless this standard is met, the defendant must be acquitted. It has a written Constitution containing all the fundamental principles to comply with, several codes gathering general rules for each branch of law[9] and a set of detailed statutes specifying the abstract rules of the codes. 28 ottobre 1940). I will support MacKinnon's ideas on gender equality, briefly summarize Crenshaw's discussion of intersectionality, and provide an analysis of the court's approach to gender in at least three cases. endstream endobj 1355 0 obj <>stream 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). The United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). Issue the decision based on the statements made by the parties. The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. 28 ottobre 1940) -Constitutional Reform Act, 2005 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. The result of this although partial analysis, is the evidence of how the distinctions between the two systems have blurred, as a consequence of a trend of change registered from both sides, the one taking inspiration from the other, towards a common point of coincidence, a commixture more fitting the modern globalization reality. By imprisonment not exceeding four years. [4] From Latin maxim stare decisis et quieta non muovere, literally let the decision stand and dont unsettle what is. This obviously does not mean that the Italian system is infallible, and aspects of the cases progress have certainly raised eyebrows: Amanda Knoxs statements are certainly difficult to accept as evidence, the media put a lot of pressure on prosecutors, and the police clearly acted to protect their credibility. 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. Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. Both the United States and Italy have an appellate system, they both have a court of appeals. endstream endobj 1352 0 obj <>/Metadata 161 0 R/Outlines 266 0 R/PageLabels 1332 0 R/Pages 1336 0 R/StructTreeRoot 267 0 R/Type/Catalog/ViewerPreferences<>>> endobj 1353 0 obj <>/ExtGState<>/Font<>/ProcSet[/PDF/Text]/Properties<>>>>>/Rotate 0/StructParents 0/TrimBox[0.0 0.0 595.276 841.89]/Type/Page>> endobj 1354 0 obj <>stream Totals Citation Statistics for Government > Legal system Categories Top Stats 0 65, regio decreto n. 12 del 1941. At the end of the civil trial, the court can issue one of the following verdicts: That the claim cannot be granted for issues concerning the procedure or the merits of the claim (because the procedure set up by the claimant is not the correct one or the claimant has no legal standing). The most relevant sources of international law are: Ordinary judges and honorary judges, who form the judiciary, administer judicial power. Although this is a very short summary, it should help clarify why during the investigation the prosecutor becomes the key figure, and why prosecutors have so much influence over political decisions about responses to crime in Italy. 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 . The Italian law is based on Roman law in regards to civil law and the codes of the kingdom of Sardinia, one of Italy's twenty regions, in civil and penal affairs are from the Napoleonic Code which extended to all of Italy when it was unified in the mid-19th century (Wickham & Clark, N.d.). The courts are located in various districts of Italy. Common law countries are adopting some of the characteristics of the Civil law system, while Civil law countries are incorporating some features of the Common law tradition. Differences between legal systems are not anymore seen as obstacles but as inspiring models to aim if anyone wants to achieve a decent level of integration that a modern, interconnected world as ours requires. The Italian Civil Code then proceeds to state that the ordinary law, the legislative decrees, and the regional legislation are the next main sources of law for Italy (Lawyersitaly, 2020). There are obviously some questions about how this particular investigation was conducted, but they must be separated from any analysis or evaluation of the Italian system. CISG Scope of Application Exclusions and Effects. While it does not mean that prosecutors control the police during the investigation, prosecutors rely on the police and interact with them constantly. [15] Art. hbbd``b`{AcH0l n $XA,/l4HqHIH,HQ@bv&Fk@#nU + However, the difference between these two countries is less marked than it appears. The Italian legal system is not quite different from the United States legal system. Info: 1539 words (6 pages) Essay Wickham, C. J., & Clark, M. (N.d.). Thus, with its pronounces, the Court establishes what must be the current interpretation of a certain statute, and lower courts will follow it: they will decide the case at the stake applying the law as interpreted by the Cassazione, giving birth to a series of decisions consistent with the precedent of the Supreme Court. There is no conventional jury system compared to some common law systems. The Court of Justice of the European Union (CJEU) consists of: The European Court of Justice, which can be summoned by national courts to consider annulments and appeals or to obtain preliminary rulings regarding the interpretation of EU law. Costituzione della Repubblica Italiana, [Gazzetta Ufficiale 27 dicembre 1947, n. 298]. Black and Latinx Americans make up 39% of the US population, but represent 59% of those in US prisons. Seen that, it is now clear how the main features of these two systems are strictly linked to their historical genesis. And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. . Italian civil procedural law is governed by the dispositive principle (. In most cases, criminal trials are open to the public. Tetley William, Mixed jurisdictions: common law vs civil law (codified and uncodified) (Part I) Q.C. 1979) The Italian legislature focuses on regulating the relevance and efficiency of evidence presented by the parties to the court rather than on imposing exclusionary rules of evidence before the court. According to the principle of the burden of proof (see. And that is the reason why we will not find any reference to the jurisprudence among the Italian legislative sources[11], but only to the statutes. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence, SUMMARY: 1. Decisions can be made public, for example through the publication on websites and newspapers when such publication can contribute to the compensation of the damages suffered by the winning party. They can also help to improve them. Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman A further decision on the legitimacy of a case is allowed on appeal to the Court of Cassation which only considers the legality of the proceedings that the lower courts conducted. And, unless the appealed judge adduces very strong reasonings in order to make the Court change its orientation, the lower decision will inevitably be quashed, and the case sent back to another lower judge, who this time, and only this time, is legally bound by the Courts decision[16]. Rigid: modification requires a complex process of reform unlike the passing of ordinary laws. As we have seen above, in Italy the Constant Jurisprudence doctrine combined with the Nomofilactic function of the Supreme Court consent to reach almost the same results of the English Stare Decisis principle, aiming to satisfy the needs of equality of treatment and predictability of the decisions without giving up the characteristic of legal certainty typical of a code-centric legal system, but being at the same time flexible and capable to easily adapt the general written rules to the varying and unforeseen conditions of society without turning to the very slow parliamentary law-making process[17]. Decide on the relevance and admissibility of the evidence presented by the parties. Another 46 million euros was paid out to . Articles 24, 25, 101 to 104 and 111 of the Constitution, in particular, ensure the autonomy and independence of the judiciary. The trial of Knox and Sollecito was standard, meaning no special rules were used; on the other hand, Rudy Guedes lawyers decided to use one of the special procedures that are aimed to speed up the criminal process, in this case a giudizio abbreviato or fast-track trial. Any of the following can request a referendum within three months of the amendment's publication: One-fifth of the members of a parliamentary house. [17] As a matter of fact, the Parliamentary law making process is extremely slow, while the judge-made law is able to be more responsive to the changing of society circumstances (Griffith and Tengnah, 2010). However, in specific cases and only if necessary to reach a decision, the judge can introduce further evidence at the trial. An amendment must be submitted to a popular referendum. The Constitution forms the fundamental law of the Italian legal system. Another well-known specialist court is the High Court of Public Waters, which has jurisdiction over disputes relating to public water issues. A panel of three judges hears more serious cases. These include measures to reduce case inflow (e.g., by increasing court fees, creating appeal barriers, and changing lawyers' fee The United States laws were derived from the common law system of English which was in place at the time of the Revolutionary war at both the federal and state levels. N:0b kb}z|4v_7?AJD The judge plays a more passive role. Italian law establishes independent administrative authorities to deal with specific legal areas. (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 Across a sample of 13 Italian cities, starting a business can take about a week on average. As aforementioned, Common and Civil law may be referred as the antipodes of the legal system conception. Ratify international treaties that Parliament has approved in advance. There are two main exceptions to the normal legislative procedure: In general, the judiciary has no power to control legislative and executive actions. This may be due to the fact that both legal systems are not solely adversarial or inquisitorial in nature. 384 Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. 1351 0 obj <> endobj Abstract In the United States the prosecutor bridges the gap between the police and the courts by exercising independent judgment concerning the need to . The most relevant are: The Italian Authority on Communications (, The Italian Securities and Exchange Commission (, The Italian Regulatory Authority for Electricity Gas and Water (. As the Constitutional Court has stated, this principle is intended to guarantee equality before the law within the penal process. 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. Therefore, Italian decisions have a subjective ambit of efficacy, being applicable only to their recipients and to nobody else, even if a similar dispute arises. In the most serious circumstances, the public prosecutor can also ask the judge to issue a decision ordering the precautionary detention of the suspect in prison. Legislative powers are vested in the Italian Parliament, in compliance with the Constitution, and under the constraints of EU legislation and international obligations.
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