Pandektnaya system - a way of presenting legal norms. The idea underlying the system arose in ancient Rome, then it developed and was applied in one form or another in other states. In particular, in Germany and Russia.
Law development
Roman law survived the state by which it was born, for many centuries. The reason for this is the high level of its sophistication and the ability to apply in different conditions. Many of the views of lawyers of those times are still used, albeit in a modified form.
The pandectic system was born from a collection of works created under the emperor Justinian, which formed the basis of the private law of the Byzantine Empire.
The Middle Ages were characterized by the reception of Roman law. The states, to one degree or another, tried to use the achievements of the Romans, trying to modernize and process them. The result of this process was the emergence of a pandemic legal system.
Ways of reception of Roman law
In practice, lawyers in European countries have come to two forms of presentation of civil law governing private relations.
The first is the institutional system, the second is pandemic. How do they differ among themselves?
Differences
Pandectic and institutional systems have more in common than differences. They relate to the system of continental or Romano-German law. They are understandable to everyone, but as for the differences, it is not so simple.
General and special parts
The main distinguishing feature is the division of codified acts into general and special parts. This is typical for Germany, Russia, countries of Eastern Europe. Italy, France and other states have taken a slightly different path.
Their codes, in particular the Civil Code of France, adopted under Napoleon, do not have a common part or a separate section of the rules that would apply to all other sections. Each section has its own set of general rules that do not apply to others.
So, the first section of the Civil Code of France is dedicated to the status of persons, the second to property, methods of its acquisition and protection.
In Germany, on the contrary, the Civil Code begins with general provisions, which to one degree or another affect all its sections.
Industry boundaries
In the pandectic system of law, there is a more strict division into substantive and procedural law. Any civil code carries a minimum of procedural standards.
In the institutional system, this rule is less strictly enforced. For example, the French Labor Code contains, among other things, criminal law, with the simultaneous operation of a full-fledged Criminal Code in the country. A similar confusion is characteristic of the entire French system of law and countries experiencing the influence of its legal system.
Legal Technique
Researchers note that the level of legal technology in the pandectic system is higher.
First, the statement of norms goes from general to particular. Secondly, additional laws are adopted that regulate specific areas of public life.
For example, the provisions on acts of civil status in France are fully placed in the Civil Code, in Russia a separate law has been adopted that develops the relevant norms of the Code.
Such an approach helps to systematize legislation, making it more understandable and easy to use.
Difference in structure
The Civil Code of France has the following structure:
- legal status of persons;
- property law (rights to property, primarily property and the rights of possession, use and disposal arising from it);
- acquisition of ownership (included rules of obligation and inheritance law).
The pandect system for constructing the German civil code is as follows:
- a common part;
- law of obligations;
- property law;
- family law;
- inheritance law.
Commercial law
The pandectic system, as well as the institutional one, implies the separation of regulatory acts regulating the activities of commercial organizations and entrepreneurs into a separate industry. It is referred to as business or commercial law.
Some countries of the former USSR adopted this practice. A similar code was adopted in Ukraine. This approach is associated with the desire to distinguish between norms relating to commercial activities, and not to download the Civil Code.
Practice shows that trading codes duplicate the rules of the Civil Code, and all the same, it is necessary to adopt separate laws, for example, on joint-stock companies. It is not always clear where it is necessary to apply the rules of the Civil Code, and where - the commercial or business code, which regulates similar relations in a different way. Thus, there is more confusion.
Family law
Western countries tend to include family law in the Civil Code. Lawyers in the countries of the former USSR tend to consider this not entirely correct. The reason is how to evaluate the marriage - a deal in its purest form or something else. Significant role is played by the traditions of society.
Features of the German Code
The pandetic system of the German civil code has a clearer structure. It was developed on the basis of rich material: civil codes, previously operating on German lands, the works of the ancient Romans and the results of scientific research of their own lawyers.
The law is characterized by the accuracy and completeness of the statement of norms. The problem of combining the general and the particular has been successfully solved. The code is characterized by an abstract language, and at the same time, its authors did not avoid the need to describe the nuances and particulars characteristic of a particular situation. Due to this, the style of the document is usually evaluated as “rubber”. However, this does not diminish its merits.
The law consists of more than 2,300 articles. Its feature is the lack of clear legal concepts. Such actions are caused by fear of harm and restriction of freedom of participants in civil turnover without good reason.
The Code actively uses the concepts inherent in morality, rather than normative acts, such as “good morals”, “good conscience”, etc.
The law first introduced a rule giving the court the right to resolve a dispute based on moral standards if regulation by law or contract is not enough.
Over time, many actively used the achievements of German lawyers. Russian colleagues took advantage of their experience in developing the draft civil code of Tsarist Russia. To date, Russian law has adopted the pandemic system of the German code. This is evident when comparing the rules of the Civil Codes.
Finally
The pandectic system is a legacy of Roman jurisprudence. It was then used by European countries, in particular Germany. For a long time, its civil law was directly called that.
The approach based on it is characterized by a clear allocation of sub-sectors (property, liability, inheritance law, etc.). There is a separation of procedural and substantive law. The system of presentation of norms is built on the principle of "from general to particular."