Date- 20/2/2021

Criminal law and civil law

BY: -CHAAHAT SALUJA

01114703520

ABSTARCT:-
The primary objective of this report is to offer a systematic study of both
civil law and criminal law. An attempt has been made to examine what
are these laws, their history, salient features, their important expects,
some case studies related to both the laws and also their difference. First,
I have talked about civil law and afterwards criminal law.

INTRODUCTION:-

WHAT IS CIVIL LAW?

CIVIL LAW is the system of law concerned with private relations between
members of a community rather than criminal, military, or religious
affairs. It governs the relationships between private individuals and
between individuals and organizations. It excludes government
organizations; regulates, conduct and compensates who have been
harmed by the wrongful actions of other. The parties in this are private
individuals and the state through its judicial organ adjudicates the
matters in dispute between them. In these cases, the states takes the
position of only an arbiter, it only regulates such cases which are of public
importance. These relations (which states regulates) constitutes the civil
rights of the citizens.

FUNCTIONS OF CIVIL LAW:

The most primary function of civil law is to provide for basic rules applied to family
relations such as those between husband and wife, parents and children, among
heirs of the deceased and other members of the family. Actually not only the rules
within family relations but the rules applied to various activities performed outside
the family are also provided under civil law that are ;

TORT LAW: - branch of civil law that holds persons or private organizations
responsible for damage they cause another person as a result of an accident or
deliberate actions.
CONTRACT LAW: - branch of civil law that provides rules regarding agreements
between people and business.
FAMILY LAW: - deals with various aspects of family life including marriage,
property division upon separation and child custody.
WILLS AND ESTATES (ESTATE LAW): - deals with the division of property after
death including if a person dies without having a will.
PROPERTY LAW: - governs ownership rights in property including the buying and
selling of real estate.
EMPLOYEES LAW: - governs employer/employee relations including minimum age
a person can work, restricting the number of hours required to work and
specifying the minimum wage.

HISTORICAL DEVELOPMENT OF CIVI LAW:-

The civil law takes as its major inspiration from classical Roman law (c.AD
1-250), and in particular Justinian law (6th century AD) and further
expounding and development in the late Middle Ages under the influence
of canon law.
The Justinian code’s doctrines provided a sophisticated model for
contracts, rules of procedure, family law, wills, and a strong monarchical
constitutional system.
 Roman law was received differently in different countries. In some it
went into force wholesale by legislature act i.e. it became positive law,
whereas in others it was diffused into society by increasingly influential
legal experts and scholars.
Historians believe that the romans developed civil law around 600 C.E.
when the emperor Justinian began compiling legal codes. Current civil law
codes developed around that Justinian tradition of codifying laws as
opposed to legal rulings.
Common law dates to early English monarchy when courts began
collecting and publishing legal decisions. Later, those published decisions
were used as the basis to decide similar cases.

SALIENT FEATURES OF CIVIL LAW:-

Clear expression of rights and duties, so that remedies are self-evident.
Simplicity and accessibility to the citizen, at least in those jurisdictions
where it is codified.
Advance disclosure of rules, silence in the code to be filled based on
equity, general principles, and the spirit of the law.
Richly developed and to some extent transnational academic doctrine
inspiring the legislature and the judiciary.

WHERE CIVIL LAW IS FOUND:-

In continental Europe, where most jurisprudence have civil codes. In
Great Britain, Scotland has retained an uncodified form of the civil law.
Even when they have civil codes, Scandinavian countries are not regarded
as civil law jurisprudence.
In North America, civil codes are found in Louisiana and Quebec.
In Central and South American, almost all countries have civil codes.
In Asia, many countries have received the civil law and civil codes, such as
Indonesia, japan, Kyrgyzstan, India, and Lebanon.
MODERN COMMON AND CIVIL LAW SYSTEMS:-
Today the difference between common and civil law tenants lies in the
actual source of law. Common law systems make refer extensively to
statutes, but judicial cases are considered the most important source of
law, allowing judges to pro-actively contribute to rules.
Example- the elements needed to prove the crime of murder are
contained in case law rather than defined by statute. For consistency,
courts abide by precedents set by higher courts examine the same issue.
In civil law systems on the other hand, codes and statutes are designed to
cover all eventualities and judges have a more limited role of applying the
law to the case in hand. Past judgements are no more than loose guides.
When it comes to court cases, judges in civil law systems are more like
investigators, while their equivalents in the common law systems are
rather arbiters between parties presenting arguments.

CASE STUDIES RELATED TO CIVIL LAW

CONTRACT LAW CASE STUDY
AGC (Advances Ltd) Vs. McWhirter, supreme court of NSW (1977) 1 BLR
9454
This case relates to the first requirement of any legally binding contract. In this
case, the plaintiff had put up a property for sale at auction. Subject to a reserve.
The defendant made a bid of 75,000 dollars which was the highest bid. When this bid
was not accepted by the plaintiff (based on concerns over the defendants ability to
pay), the defendant claimed a legally binding contract had been entered when they
made the highest bid.
In this case, the court ruled that bidders at auctions are entitled to make offers, but
that offer does not need to be accepted by the sellers. Therefore, auctions act as an
invitation to treat. This means that agreement was not reached, as sellers refused
the bidder’s offer. Therefore, a legally enforceable contract was not entered in this
case on the basis of lack of agreement.
INTRODUCTION:-

WHAT IS CRIMINAL LAW?

CRIMINAL LAW is the body that defines criminal offences, regulates the
apprehension, charging and trials of suspected persons, and fixes penalties
and modes of treatment applicable to convicted offenders. Criminal law is
necessary for the maintenance of order and peace within the state.
Criminal law is the only one of the devices by which organized societies
protect the security of individual interests and ensure the survival of the
group. In civilized societies, crime is considered to be a wrong not only
against the individual (who has been wronged) but a wrong against the
society. Therefore, the state initiates the proceedings against the
offender, and thus it is always a party in criminal cases. This is why the
criminal law is considered as a branch of public law.

WHAT IS A CRIME?
It is very difficult to give correct and precise definition of crime. But it an
intentional act in violation of the criminal law committed without defense
or excuse and penalized by the state.
Lord Atkin- crime is an act or omission in respect of which legal
punishment is inflicted on the person who is in default either by acting or
omitting to act and criminal law relatives to crimes and their
punishments.
William Blackstone- any act committed or omitted in violation of public
law forbidding or commanding it. Crime is a violation of public rights and
duties due to the whole community considered as community.
John Austin- a wrong which is pursued by the sovereign or his subordinates
is a crime.
Professor Kenny- crimes are wrongs whose sanction is punitive and is in no
way remissible by any private person, but is remission by the crown alone,
if remissible at all.
Professor Goodhart- any act which is punishable by the state. Protection
of the public welfare rather than the support of private interests- which is
the dominant purpose of this branch of the law.
Halsbury’s law of England- a crime is an unlawful act or default which is
an offence against public and renders the person guilty of the act or
default liable to legal punishment.

HISTORICAL BACKGROUND OF CRIMINAL LAW:-

The first civilizations generally did not distinguish between civil law and
criminal law. The first written codes of law were designed by the
Sumerians, around 2100-2050 BC Ur-Nammu, the Neo-Sumerian king of Ur,
enacted the oldest written legal code whose text has been discovered: the
code of Ur-Nammu although an earlier code of Urukagina of Lagash (2380-
2360 BC) is also known to have existed. Another important early code was
the code Hammurabi, which formed the core of Babylonian law. Only
fragments of the early criminal laws of Ancient Greece have survived, e.g.
those of solon and Draco.
In Roman law, Gaius’s commentaries on the Twelve Tables also conflated
the civil and criminal aspects, treating theft (furtum) as a tort. Assault
and violent robbery were analogized to trespass as to property. Breach of
such laws created an obligation of law or vinculum juris discharged by
payment of monetary compensation or damages. The criminal law of
imperial Rome is collected in books 47-48 of the digest. After the revival
of Roman law in the 12th century, sixth-century Roman classifications and
jurisprudence provided the foundations of the distinction between
criminal law and civil law in European law from then until the present
time.

OBJECTIVES OF CRIMINAL LAW:-

Criminal law is distinctive for the uniquely serious potential consequences
or sanctions for failure to abide by its rules. Every crime is composed of
criminal elements. Capital punishments may be imposed in some
jurisdictions for the most serious crimes. Physical or corporal punishment
may be imposed such as whipping or caning, although these punishments
are prohibited in much of the world. Individuals may be incarcerated in
prison or jail in a variety of conditions depending on the jurisdiction.
Confinement may be solitary. Length of incarceration may vary from day
to life. Government supervision may be required to conform to particular
guidelines as part of a parole or probation regime. Fines also may be
imposed, seizing money or property from a person convicted of crime.

CASE STUDY RELATED TO CRIMINAL LAW:-

K.M NANAVATI VS. STATE OF MAHARASHTRA
It was a 1959 Indian court case where Kawas Manekshaw Nanavati, a naval
commander, was tried for the murder of Prem Ahuja, his wife’s lover. The
incident received unprecendents media coverage and inspired several
books and movies. Nanavati was initially declared not guilty by a jury, but
the verdict was dismissed by the Bombay high court and the case was
retried as a bench trial. The case was the last to be heard as jury trial in
India, as the government abolished jury trials as a result of the case.
After some time and retrial, the court held that the conduct of the
accused clearly shows that the murder was a deliberate and calculated
one and the facts of the case do not attract the provisions of exceptions 1
of Sec 300 of IPC as the accused also failed to bring the case under
general exception of IPC by adducing evidence. In the result, the
conviction of the accused under sec 302 of IPC and sentenced him of
imprisonment for life.

DIFFERENCE BETWEEN CIVIL LAW AND CRIMINAL

LAW
CIVIL LAW CRIMINAL LAW
Civil law is a general law which
solves disputes between 2
organizations or individuals. As per
civil law, the wrongdoer will have
to compensate the affected
organization or individual. Civil law
deals with property, money,
housing, divorce, custody of a child
in the event of divorce etc.
Civil law is initiated by the
aggrieved individual or organization
or also known as ‘plaintiff’.
In case of civil law, to start a case,
the aggrieved party needs to file a
case in the court or tribunal.
The objective of this law is to
protect the rights of an individual
or organization and make sure that
the concerned party or
organization receives the
compensation for the wrongs that
they have suffered.
In civil law, the wrongdoer gets
sued by the complainant or the
aggrieved party.
In the case of civil law, there is no
punishment like criminal law, but
the aggrieved party receives the
compensation and the disputes gets
settled.
In the case of civil law, the power
of the court is pass judgement or
injunction to compensate for
Criminal law deals with offences
that are committed against the
society. It meets out varying
degrees of punishment
commensurate with the crime
committed. Criminal law will deal
with serious crimes such as murder,
rapes, arson, robbery, assault etc.
The government files the petition
in case of criminal law.
As per this law, to start a case, a
petition cannot be filled directly in
a court, rather the complaint
should be first registered with the
police and the crime needs to be
investigated by the police.
Thereafter, a case can be filed in
the court.
The purpose of criminal law is to
punish the wrongdoers and protect
society, maintain law and order.
In criminal law, the accused person
will be prosecuted in the court of
law.
In the case of this, punishment is
meted out as per the seriousness of
the criminal offence committed or
a fine could be imposed.
In the case of this, the power of
the court are charging a fine,
imprisonment to the guilty of a
damages caused to the aggrieved
party.
In civil law cases, the defendant is
considered to be either liable or
not liable.
crime, or discharge of the
defendant.
In criminal cases, the defendant is
considered either guilty or not
guilty by the court.