2009年6月ACCA試題：F4試題（全球）答案二

　?。╞） Precedent in Civil Law

　　If Common Law judges look to previous cases in order to find law， judges in Civil Law systems look to legislation or general codes for guidance as to what the law is.

　　Thus the usual distinction to be made between the two systems is that the former， common law system， tends to be case centred and hence judge centred， whilst the latter focuses on legislation rather than judges. As a consequence the Common Law system is seen as allowing scope for a discretionary， ad hoc， pragmatic approach to the particular problems that appear before the courts； whereas the latter， civil law system， tends to be a codified body of general abstract principles which control the exercise of judicial discretion. In reality， both of these views are extremes， with the former over-emphasising the extent to which the common law judge can impose their discretion and the latter under-estimating the extent to which continental judges have the power to exercise judicial discretion. Also within the Common Law the focus on case law tends to lead to an underestimation of the extent to which contemporary law is the product of legislation， whilst within the Civil Law system the focus on legislation and codes tends to underestimate the lack of completeness in such systems： a lack of completeness that has necessarily to be filled in by the judiciary.

　　The prime form of judicial reasoning within the Civil Law system is a deductive one within which the judge is required to apply the general principles stated in the legislation to the facts of the situation. Where the case involves a new problem that has never been the subject of a legal case， the judge is supposed merely to apply the principles of the ruling legislation to those facts in order to reach a decision. The source of the law is therefore the legislation not previous judgements； consequently precedent has no place in such a system. However， as a matter of practice， consistency does tend to develop and judges within Civil Law systems will follow previous decisions. The point is that they are now required to do so.

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