COMPARATIVE LAW CASES-TEXT-MATERIALS FOURTH EDITIONPDF电子书下载

A. THE NATURE OF A FOREIGN LAW PROBLEM 1

Ⅰ. INTRODUCTION: THE COMPARATIVE METHOD—ITS PURPOSE AND PROMISE 1

1. The Comparative Method Applied to Domestic Problems 2

a. The Foreign Solution as a Model—Foreign Elements in Domestic Law 2

b. The Foreign Solution as a Contrast or a Means of Gaining Perspective 18

2. The Comparative Method Applied to Transactions Across International Boundaries 25

a. Problems Arising from Differences Among Legal Systems 25

(aa) Comparative Law, Conflict of Laws and International Law 25

(bb) Foreign Law Problems in Domestic Legal Practice 29

(cc) Foreign Operations and Foreign Litigation 32

b. Bridging the Differences Among Legal Systems 32

(aa) Unification and Harmonization 33

(bb) The Common Core of Legal Systems 36

3. The Comparative Method as a Scientific Approach 41

Ⅱ. FOREIGN LAW IN OUR COURTS: PLEADING AND PROOF OF FOREIGN LAW 45

1. The Basic Doctrines 45

a. The Common Law Doctrine: Foreign Law as a "Fact" 45

b. Statutory Modifications and Innovations 58

c. Ramifications of the "Fact" Doctrine 82

2. The Over-All Tactics of Foreign Law Litigation: Consequences of Failure to Invoke or Prove the Applicable Foreign Law 88

3. The Pre-Trial Phase: Pleading and Notice-Giving in Foreign Law Cases 121

4. The Trial Phase: Techniques of Proving Foreign Law 128

a. Documentary Evidence Including Official Certificates 128

b. Proof by Experts 137

(aa) Necessary Qualifications of a Foreign Law Expert 137

(bb) Legal Education in Civil Law Countries and Its Bearing Upon the Qualifications of Civil Law Experts 145

(cc) The Art of Examining and Cross-Examining Foreign Law Experts 191

(dd) Court-Appointed Experts 216

5. A Comparative Side-Glance: The Procedural Treatment of Foreign Law in Other Legal Systems 218

B. COMMON LAW AND CIVIL LAW—COMPARISON OF METHODS AND SOURCES 222

Ⅰ. COMMON LAW AND CIVIL LAW JURISDICTIONS DISTINGUISHED 222

1. Nature and Significance of the Distinction 222

2. The Distinguishing Features of the "Civil Law"—Their Historical Roots 238

a. The Pre-Codification Period 238

b. The National Codifications—Traditional and Modern Elements in the Civil Law 269

3. Geographic Expansion of Common Law and Civil Law 303

Ⅱ. PROCEDURE IN CIVIL LAW COUNTRIES 329

1. The Course of a Civil Lawsuit—Essential Elements of Procedural Institutions in Modern Civil Law Countries 331

a. Selection of Counsel—Organization of the Legal Profession 333

b. Lawyers' Fees 342

c. Organization of Courts 352

d. "Jurisdiction"—Some Traditional (But Gradually Disappearing) Differences Between Civilian and Common Law Thinking 361

e. Service of Process (And a Glimpse at International Judicial Cooperation) 382

f. Pleadings and Formation of Issues 390

g. Evidence 396

h. The Court's Decision 415

i. Appeals 424

2. The Place of "Civil" Litigation in a Civilian System—Lines of Demarcation 435

a. Commercial Courts 435

b. Arbitration 436

c. Criminal Procedure 438

d. Procedural Treatment of Concurrent Criminal and Civil Liability 457

e. Public-Law Disputes 462

(aa) The Civilians' Dichotomy Between Private-Law and Public-Law Litigation 462

(bb) The Dichotomy (Between Private-Law and Public-Law Litigation) in International Contexts 483

3. Comparative Civil Procedure—Some Questions and Observations 489

Ⅲ. SUBSTANTIVE LAW 494

1. System and Organization of the Codes 494

2. Judicial Interpretation of Codes—The Force of Precedents in a Code System 550

3. Political, Social and Moral Elements in the Principal Codes 608

a. The Codes and Economic Freedom 609

(aa) The Parties' Freedom to Shape Their Contracts and Other Transactions 609

(bb) Enforcement of Contracts 613

b. The Codes and Security of Transactions 634

(aa) The Principle of Publicity in the Transfer of Land 634

(bb) The Principle of Publicity in Transactions Not Relating to Land 646

c. The Codes and the Idea of Justice: Boni Mores, Bona Fides and Abus des Droits—No Separation of Law and Equity 653

C. A TOPICAL APPROACH TO THE CIVIL LAW: SOME ILLUSTRATIVE SUBJECTS 721

Ⅰ. AGENCY 721

1. The "Abstract Nature" of the Agent's Power 721

2. The Interaction of Civil Codes and Commercial Codes in the Law of Agency—Application of the Principle of Publicity 728

3. Powers of Attorney—Form Requirements 731

4. Powers of Attorney—Construction and Scope 733

Ⅱ. CORPORATIONS 748

1. Civil Law and Common Law Methods in the Law of Corporations 750

2. Bearer Shares 759

3. Limited Liability Companies 781

4. Protection of Creditors and Minority Stockholders 786

a. Preservation of the Registered Amount of Capital 786

b. Minority Stockholders' "Equitable Remedies" 787

Ⅲ. CONFLICT OF LAWS 793

1. Conflicts Rules Built into a Code System: Their Form and Structure 794

2. Illustrative Conflicts Rules Derived from Civilian Codes 800

a. Nationality as a Basis of Judicial Jurisdiction 800

b. The Impact of "Ordre Public" on Contingent Fee Agreements 805

D. CAVEAT: THE SPECIAL HAZARDS OF COMPARATIVE LAW 815

Ⅰ. LANGUAGE DIFFICULTIES 815

Ⅱ. DIFFERENCES IN CLASSIFICATION 819

Ⅲ. THE CONTRAST BETWEEN THE PRINTED WORD AND ACTUAL PRACTICE 827

APPENDIX A BRIEF EXCURSUS ON COMPARATIVE AND FOREIGN LAW RESEARCH: HOW TO FIND THE RELEVANT MATERIALS 837

Index 845