The Anglo American law system

　One, the common law of history
The Anglo American law system is one of the two modern western law. According to our own tradition, especially in the last 200 years, our country followed by all western law in continental law. The characteristics of continental law is the most direct to the codification, Chinese dynasties in the compiled code for this period of the Dynasty legal representative. So in recent years, our country more is inherited from the continental law thoughts. Civil law is also a feature is not affected by social environment and more restrictions, more easily without considering its social conditions, followed by external to the code as the representative of the legal system.
Since the modern times, to accept the common law countries, there is a general premise -- habits of society in general have the acceptance and recognition of the common law. As one of the characteristics of the common law which is not written it, or the law of its.
As the representative of the British common law of the earliest. Since twentieth Century, American influence in the world and the Anglo American in the history of bilateral relations, represented today is mainly Anglo American common law in two countries, so the common law, also known as common law.
Characteristics of the common law is the biggest lies in its law system and continental law, not on the code as a symbol of the legal system, but there is more to the judicial precedent.
(a) the formation and development of English law
The formation of 1 common law
Before 1066, England as the British Isles very ancient kingdom, is pursuing the traditional local laws, known as the Anglo Saxon law.
In 1066 the Duke Norman William conquest of England, he and his successor in order to consolidate the rule, expand the kingship, compromise and local lords. He first in London by the first king of the imperial conference in isolated cases, full-time personnel and institutions, which is the earliest history of the royal court, and court of exchequer, court of King's bench "etc.. The king in order to expand the kingship, began to send personnel to all parts of the country, the trial of the case. According to the William conquest in a noble and around the England agreement, to respect the local custom, in accordance with the customary law to accept the case, local. The king in order to expand the monarchy, to send officials to participating in the trial, on the other hand, respect the local judicial habit. This makes the final summary throughout the trial of cases to the king in London where the Royal Westminster Abbey. People communicate with each other in reference to local habit formation in case opinions, induction, integration, unified process, they found that, although each other around the provisions vary, but of one category of rights disputes or can induce the same provisions, so they went from case study summarizes the general rules, then in the name of Britain the king put the general rules are generally applicable to all after the trial of the case, this is the earliest source on the local judicial habit, originated from the case and concluded the passage in the national laws of general application, so it is called the common law.
The common law is based on a case of induction, summary and the formation of the basic rules of law, legal principles. So from the common law of its origin, also known as case law. In this process was the foundation of "stare decisis, on the legitimacy of the principle of". The common law in the process of its formation, the fundamental reason is because Wang Quan expansion, between Wang Quan and local noble right compromise, the two forces together constitute the common law which is a special legal system.
The rise of 2 equity
(1) the writ system
In the process of the formation of the common law, in order to strengthen the role, also formed the writ system. That is, all the people think in place by local nobles of the court to their disputes, often require the consent of the king, this is the so-called writ. Warrant is a prerequisite of lawsuit. The original writ content wrote: in the name of the king, a dispute, requires that the local nobles trial. In the course of time, the writ has become a party can bring their own rights case right dispute to the court's certificate, thus forming process on the special rules, later summed up as "programs on rights". In other words, do not get the writ did not enter the judicial process, the claim can not be effectively maintain.
2 Heng Pingfa
The formation of this writ, the specific rights dispute case proceedings, because the writ itself and restrictions. As in real life, the conflict of interests and others there is actual, but because there is no conflict of interest with the corresponding warrant, and apply for a new writ may not get effective relief, so if the application of common law may be common law cannot, according to Germanic ancient tradition, the Germanic people all there are requirements of their king for his claim on the qualification, this makes appeared at that time there have been to the king to state their rights, asked the king that is given phenomenon. With more and more similar things, the king will these events to the minister, the minister to deal with these conflicts of interests. The king's representative in dealing with these conflicts of interests, uphold the abstract value judgement, such as the so-called fair, justice to resolve the dispute in the case of rights. Thus avoiding the traditional common law writs and strict procedure restriction. Although no previous common law rights of such controversial provisions, also found no new writs, but judges can determine the conclusion to the dispute is based on their fairness, justice and conscience, such a judgment often cited is the customary law, which is from ancient Rome has survived, Rome law has been regarded as the local customary law and the Germanic conquest of Germanic law tradition. In the course of time, the process is accompanied by the formation of common law in a legal form -- equitable, a balance is the original common law don't care or cannot give legal case effective relief of conflicts of interest. In case an equitable that the forms of action and the applicable rules and laws, and the common law tradition different. In this equitable judgment and invented the system of prohibition, and conflict decision this system and the common law on certain types of disputes, in the execution will have contradiction. With the intensification of contradictions, to sixteenth Century and seventeenth Century more prominent. When King James Thi, the"Equity first" principleIn one case, in the common law and the equity in the conflict, take the equity law shall prevail. But this does not mean that the equity law increasingly dominate. From looking at the history of the formation process, the common law is the main legal systems and legal content, and equity is only effective supplement to the main legal system. So the British jurist concluded: "if there is no common law legal system in England; equity is not capable of independent existence, if not equitable, the English legal system can still continue down through the common law."
Due to historical reasons, when in twelfth Century the Rome revival appeared on the European continent, Rome in accordance with the law, code structure concept, logic re codification, the design of the time, the British common law is formed according to the case law tradition of its own accepted tradition. With the formation of the English common law, despite the equitable born in equity law, specific legal concepts, principles of integrated many history Rome law, canon law, the Germanic law factors, but in the entire legal system structure, the form is different from continental Europe, legal system in the common law as the representative of the. So they called the common law when it comes to the Anglo American law.
(3) characteristics of the Anglo American law:
First, from the origin, Anglo American law is case law tradition;
Secondly, from the internal characteristics, the common law formed a abide by the principle of precedent.
3 law of development
1215 "Great Charter" is an important process of law development.
"The Great Charter" legislative background is the embodiment of Wang Quan and balance the interests of the local aristocracy. Then king John for the war and the European continent, so increasing domestic taxes, the domestic various tensions, embody a concentrated reflection of the relationship between the king and the local nobles in the increasingly tense, then John was the local nobles kidnapped, reached a compromise document - 1215 "Great Charter". "The Great Charter" was originally only for the tax issue to restrain the king, according to the old British case law tradition, has formed an important precedent, that isCrown is no longer the supreme, the crown should be subject to legal constraints. "Great Charter" exercise supervision in the Royal Institution, is also considered the origin of the formation of the parliament, which established the basic principle of English law -- the principle of parliamentary sovereignty constitutionalism. From the origin of the law say, major sources of law enacted in 1215 "Great Charter" can be as the first representative. To sum up, context when there are three sources of law formation history of English law: common law, equity law and statute law. Characteristics of the three common characteristic is the case law, so "stare decisis" become the most fundamental principles of the common law system. With the glorious revolution, the British bourgeois revolution and established the constitutional system, formed its own unique constitution of britain. Without the "constitution" of Britain, known as "flexible constitution", while in British constitutional system, many content is based on the conventions of constitution, constitutional habit formation, whether in practice, custom, all is according to the constitutional legal precedents are summed up, the precedent principle together constitute the British constitutionalism today system.

　　Formation and development of the two, USA method
America law and English law difference lies in law, in the formulation of different maximum range is the constitutional law.USA was the first country in history written constitution developed. So American and English belong to Anglo American law system, the two together with is the basic traditional common law. But in the legal range, America inventive, made outstanding contributions to the world legal culture. The sources of law in the America, contrast the British common law, equity law, statute law in the legal system, America law status and influence is far superior to that of the uk.
After the Second World War, Britain's legal system is also changing, with the formation of the European Union, the EU countries is mainly because in the civil law tradition of continental Europe countries, to develop a method for the British law, today's law status is also rising. In the macroscopic view, the continental law system and Anglo American law system is also in constant fusion, so in this process, it is the basic structure of Anglo American law system, some of the first legal system and the internal principle, are formed in the UK, such as the legal origins of the common law, equity law, statute law. But with the development of society, in various sources of law in the legal system of each other in the importance and influence each other, America effect by later. So with the America appear, in Anglo American common law more representative, the current legal system in USA about today.
(a) the formation of American method
USA is most early 13 British colonies in North America, with the independent war, USA became independent nations, began to form a legal system has its own characteristics. According to historical records, in fifteenth Century and sixteenth Century, in USA, especially in the old colonial period, most place used in English law, "the Bible" even used as a legal case. Then the British completed"The British law interpretation" one book, produced far-reaching influence on the formation of the later American method. Eighteenth Century "Commentaries on the law of American" a book published, the American method has appeared gradually, has its own features different from English law. After the civil war began, American unique emphasized his law.
(two) USA constitutional system
　　America is the earliest written constitution state. With the advent of the original 13 states of North America such a loose confederation system, Americans are beginning to realize that this country can not effectively promote the development of the structure of the new nation, the foundation so constantly adjusted in the legal standard, they are in the constitution of the meeting, formed the constitutional reform, namely the Confederacy system into the federal system. In the constitutional reform, is also brewing completed USA written "constitution".
(three) the system of separation of the three powers America
　　Separation of the three powers of the framework established by USA "constitution", is put forward after the separation of the three powers and one of the most typical, the most successful cases from the Europeans. The Americans were not a clear constitutional convention, in the eyes of the Americans, effectively guarantee their freedom, we need a fully reflect the opinion of the authority, the State Council organs. In the first Confederate system, each state government is relatively weak, the states are very concerned about the powers of the states. It is because of this period of history, the Federal Constitution originally USA compromised on state power inherent in the Federal Constitution, so the initial USA, in the constitutional structure retained many different states (state) inherent power. Such a "constitution" to complete, in the national system and new changes, the loose confederation from 13 states, into a unified central authority (federal unity power) of the new country. In any case, each state in the constitutional structure was placed under the federal government, states are willing to give up part of his power, seeking the country more powerful central authority. In such a changing, constitutional structure USA itself also has a prominent place, namely the federal system. Federalism has stressed a strong federal government, on the other hand, to respect the States to retain their full freedom rights history. So in the American constitutional structure, state power is sufficient attention, it also makes initial American federal "constitution", each state will eventually reach a compromise is the seven part of the article. It is such a constitutional structure, the Americans today are a very proud that, is two hundred years, the "constitution" American no big change. However, with the development of the society, USA "constitution" is also advancing with the times, and constantly revised, but its original text because the power structure between the federal and state compromise, no more changes, but through a new "amendment" mode, to make this ancient "constitution" to keep pace with the times. This also allows us to see that, the traditional occupies an important position in Anglo American law. According to the characteristics of America "constitution", is still the power of the federal government are prescribed in the Federal Constitution "in general", "constitution" does not expressly granted the powers of the federal government, of course, to the States retain. USA federal has a "Federal Constitution" (i.e. "America constitution"), there are also the States States "constitution", in such a system, will also be able to see American states stressed the power of the states. So with the constitutional structure that, American judicial system have certain characteristics.
In Anglo American law, British law more embodies the historical origins of this law is formed, can understand this law basic principle and characteristics of. USA method should be more concern is the "constitution".
America "constitution" is the theory and practice of the best separation of three rights separation of the three powers in Europe, however, is the history of mankind, the balance of power in a theory, a theory that how to practice, America made the most successful. But Americans originally is a lot of confusion, such as the initial separation of the three powers and not what we are seeing in the relative balance of an effective balance structure, but in the three power, the parliament's power is very strong, so the America the lack of an effective central government. Along with the establishment of the federal system of the Federal Constitution "and" the promulgation, to change such a situation. But appeared in the traditional three right structure to Congress contend, is more and more strong central federal government (president as the representative of the administrative power), and in accordance with the three power separation theory, as the judicial power is one of the three rights is still relatively weak. The legislative power of Parliament grasp the fact that property, if Congress does not pass, as the authorities of the federal government and the president will not get effective financial support. While the president is the representative of the administrative system, administrative resources have specific, and far superior to the passive judicial system. The court is the negative of the Department, only by the court verdict in a legal dispute, is always a neutral. So in the interests of the balance of power, judicial power is relatively weak. After the civil war, with the continuous modification of constitutional system, the three power relative balance.
In three power continue to seek a balance of the process, the emergence of a famous case -- "Marbury v. Madison". The significance of this case is the most important, the whole case process according to the common law "precedent", is awarded to the Federal Supreme Court a power, isRight to adjudicate on any legal dispute, any such dispute is unconstitutional, through the "Marbury v. Madison" clearly the Federal Supreme Court. Since then, the more and more with the other two rights be well-matched in strength in the separation of three powers. In the opinion of the Supreme Court, conflict with the constitution, whether legislation from Congress or the president of administrative decisions, can be declared unconstitutional and void. So in the American the federal judicial system, judicial review of the Supreme Court, the achievements of its most has the characteristic the system design.
Separation of the three powers system is a system design is the most important USA constitutional history, precisely because of this historical process, make today's American constitution and constitutional American become law represents the meaning of the world, the common law, the common two countries represented by the United States as the representative of the statute law has in the traditional law countries have widespread influence.
After World War II, America for the traditional law has also made the further reform, and one of the most important trend that change is to make law more and more, also more and more value the uniform code for social legal effect. As the British in 1875 for those very delicate, complex types of proceedings the history of the formation of streamlining reform, USA also in that effort, but this tradition is difficult to be abandoned. A British legal historian Maitland said "we in Britain are finally put these cumbersome procedure rules to the tomb, but these rules to govern us like a ghost."

　　Four, British and American judicial system
1 of the jury system
In the jury system, and not simply understood as the judicial system, but also is the common law in the constitutional concept. The British jury system the initial value is not only the case proceedings, but that reflects a basic value representative of the law, namely how to trial fair. It is precisely because of this, the British jury system has such strong vitality. In the Anglo American representative of the common law system, the jury has always been one of the most important legal system design.
(1) the organizational structure of the English courts
The judicial institutions in the United Kingdom is divided into two parts: the grass-roots court and the high court. The high court system can be divided into: the house of Lords court of appeal, the high court, the Supreme Court, the Congress (the Senate). Britain is not according to the separation of the three powers structure to design their own national power, until today in the UK, because of the common law itself, the Parliament can participate in the judicial jurisdiction and trial. Because of the characteristics of the common law judge itself, through the case in the application of the doctrine of precedent has a prominent characteristics: the judge made law. According to the principle of strict compliance with precedent, in case the applicable process in common law, judge made law is more and more constraints. But in the equity law, judge made law is more outstanding, so some people say equity law is justice equity case trial is determined based on the foot, "equity (standards) as' justice feet ', can be big or small".
(2) American dual court organization.
The cause of USA court track system is America is a federal country, there are two sets of court organization system: the federal court organization system and the state court system. The former includes the Federal Supreme Court, the federal court of appeals and the Federal District court. The Federal Supreme Court ruling in all courts are binding. The organization system of state courts are not unified. In general, the state's highest court is called the Supreme Court, the trial court official is the district court, the court is a magistrates court. In USA parties may choose the case to federal court, can also choose to state court. In some cases the jurisdiction, according to federal law, some cases can only be under the jurisdiction of the federal courts, includingRelated to federal government authority and jurisdiction justice cases based on case (Interstate cases).
In common law system, the jury system is the embodiment of the legal application of the fair, behind also satisfy the balance principle of common law insist. For example, in the case of murder, the jury system is the pursuit of balance between the prosecution and defense, as one party, the party each other, either in fact or in the application of the law, to form the mutual correspondence, with each other to balance relationship, in order to seek the trial fair.
2 defense system
The defense system is reflected in the constitutional system, the citizen even protect a man accused of criminal suspect's rights of citizens. But any system, and this system has the social environment closely related. In common law countries, the adversary system litigation to follow and inheritance, hand and tradition, on the other hand, and the reality of social structure. Because of this, in the ordinary family in France today, is also facing the judicial reform, namely the adversarial system of traditional too occupied the judicial resources, make them feel more and more burden on pressure, specifically the relationship between fairness and efficiency. So in the common law countries and the emergence of "ADR system", "reconciliation", it is the change in the effective adjustment of traditional adversary system litigation under the new social. In China, in profits from the western legal system, must focus on the social structure of our own. Whether to adopt the adversary system litigation or continent law of new pattern of civil litigation, we must first consider the social basis China itself can withstand any litigation model of reality. This does not prevent us from the common law under different social patterns. This will allow us to see the system resources of great significance. The common law is relatively unfamiliar, law legal system, but the blend each other's two big legal systems, the system a lot of common law was also continental law, such as the independent director system in the company law is originated from the common law. In the concrete system like this, let us more and more recognized by all countries through mutual exchanges, a trend of convergence in more and more areas. The common law tradition of very great importance to the case, strictly abide by the doctrine of precedent, but today's common law system is also more and more attention to enacting statute; in addition to traditional civil law just emphasize statute, and on the applicable statutory judge can't any interpretation of the law, but a large number of cases in the trial, the mainland law has increasingly emphasized on the directive role of cases, also emphasizes the interpretation of the law in the case of positive, dynamic efficiency. That is to say the two legal systems are actively move closer, in reference to each other's strengths. So both the common law or civil law has an inherent, common value -- is the pursuit of justice.