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Appeals In Civil System And Common Law System: A Comparative Study

There are two primary legal systems that are widely recognized across the globe: common law and civil law. They might share some similarities but they have many significant differences in their place of origin, approach and implementations of the laws in their respective systems.

The roots of civil law can be traced back to the Roman Empire, and its principles were eventually formalized in the Napoleonic code. Civil law is based on the written codes and laws, which are then organized into a system which is comprehensive and covers all major areas of law. The judges in this system mainly rely on only the written laws and codes to form their own decisions and resolve the major disputes of the case. The legislative branch of governments following civil law systems has powers to create laws.

Common law originated in England and then was majorly developed through various judicial customs and decisions given in many cases. The common law system is based on the principle of judicial precedent. In the common law system, the judge follows the decision prior to the case to ensure consistency in the law's application. Common law systems are a system which plays greater focus on the interpretation of the law and court decisions can create new legal principles in this system.

The Indian legal system is a mixture of both civil and common law practices. As such, in the Indian legal system the process of appeals incorporates elements of both civil law and common law.

In the Indian legal system appeals are made to higher courts, courts the such as high courts of the respective state and Supreme court of India on the decision rendered by lower courts or tribunals, in general the standard view of an appeal is more deferential to the lower court's decision that means the high court has the power to overturn and quash the lower court's decision if it is found that it was clearly erroneous or is a clear error of law.

This paper deals with the analysis of and development of appeals in the Indian legal system and comparison with the foreign system of civil law systems of countries like France and evaluates the evolution of appeals in the Indian legal system.

In this paper, an attempt has been made to underline the importance of appeals in the Indian legal system with its limitations in respect to CrPC (The Code of Criminal Procedure, 1973.) and various sections of the constitution.

Appeals In The Legal System

  1. What is an appeal?
    "The complaint to a superior court for an injustice done or error committed by an inferior one, whose judgment or decision the Court above is called upon to correct or reverse. It is the removal of a cause from a Court of inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and retrial" . -- Black's law dictionary.

    Appeal as a word has not been defined in the Code of Civil Procedure, 1908. The term appeals mean the examination of a decision of an inferior court by a higher court.

    An Appeal in legal parlance is held to mean the removal of a cause from an inferior or subordinate to a superior tribunal or forum in order to test and scrutinize the corrections of impugned decisions.

    Appeals are a very major and critical component of any law system. They establish a mechanism where individuals can challenge decisions made by the lower court in order to seek redressal for injustices they perceived. The process of appeals can vary greatly between legal systems in the world. Some legal systems place more emphasis on the precedent, while other legal systems put more emphasis on the code which is written of the law which is more formal than the other.
  2. Why appeals are necessary:
    As mentioned earlier appeals are a fundamental part of any legal system and they play an important role in delivering fairness and justice to the citizens of the country. An appeal can be said as a request made by a person to the higher court to review a decision made by a lower court.

    Appeals play a vital role in the legal system, serving a number of crucial functions that ensure fairness, consistency, and progress in the law.
Error correction:
Appeals provide a fundamental role of correcting errors made by the lower division courts, They ensure that the legal decisions are based on accurate and consistent interpretation of law and the litigant's rights are protected.

Law's developments:
As human society progresses and changes, so too must our laws. That's where the concept of appeals comes in. By appealing a decision, a court can take a fresh look at a case and potentially set a new legal precedent that's more in line with current needs and values.

Uniformity and consistency of law:
Appeals also help ensure that the law is applied consistently and uniformly across different cases and jurisdictions. This means that similar cases will be treated similarly, no matter where they're being heard.

Ensuring the process:
the most important thing is to make sure that everyone involved in a legal case is treated fairly. That's why appeals are so crucial: they give litigants the opportunity to challenge decisions that may have violated their rights or been based on incorrect legal interpretations.

Appeals can provide a sense of closure for legal disputes, allowing all parties involved to move forward and put the matter behind them. It's a critical part of any fair and effective legal system.

Civil Law System

  1. Civil law system origin and functions
    The civil law system is a system which originated as a legal tradition with origin in Roman law, as codified in the Corpus Juris Civilis of Justinian. The civil law system was subsequently developed in Europe and then followed around the world. Civil law systems can be broadly classified into two streams: codified Roman law and uncodified roman law. Codified as seen in the French civil code of 1804 and uncodified as seen in Scotland and South Africa. Civil law can be said as a law which is highly systematized and structured and majorly relies on the declarations of broad, general principles which are often found to ignore the details.

    Countries which are following this system have comprehensive and continuously updated their legal codes which are capable of being brought in their courts which consist of the applicable procedure, and the appropriate punishment for each offense. Codes established in civil law systems are distinguishable between different categories of law.

    The Substantive law which establishes which acts are subject to civil or criminal prosecution and the other which establishes how to determine which act will constitute for a criminal act and the penal laws which will establish the appropriate penalty for the same.

    In a civil law system it is said to be the judges role to establish the facts of the case and then apply the provisions of the applicable code. The judge strictly works within a framework which is established by the codified set of law, The judge's decision is less crucial in framing the civil laws than the decision of the legislature or the law makers such as scholars who drafted and interpreted the code.
  2. Appeals in civil law system
    An appeal in civil law systems is typically limited to reviewing the legal issues, and the appellate court does not re-evaluate the facts. Instead of re-examining the evidence presented at trial, the focus is on ensuring that the law was applied correctly. In civil law systems, the standard of review is usually "error of law," which means that the appellate court will overturn the lower court's decision only if the lower court applied the law incorrectly. In civil law systems, appeals are often more widely available, and the process of appealing is often seen as integral to the legal system.

    A civil law system usually requires a higher court to hear an appeal, such as an appellate court or a supreme court, and a de novo standard of review is applied, meaning the appellate court reviews the case as if it were its first time. The appeal process usually involves both appellants and respondents submitting written arguments, followed by an appellate court hearing in which the parties present their arguments.

    The role of the appellate court in civil law systems is generally limited to reviewing the legal issues in the case and re-evaluating the facts. Rather than re-examining the evidence presented at trial, the focus is on ensuring that the law was correctly applied. According to civil law systems, the standard of review is usually "error of law," which means that the appellate court will only overturn the lower court's decision if it finds that the lower court applied the law incorrectly.
  3. Countries following civil law system
    Many countries around the world use civil law as a legal system, including:
    • France
    • Germany
    • Belgium
    • Italy
    • Spain
    • Portugal
    • Greece
    • The Netherlands
    • Switzerland

Further, many countries in Latin America, including Mexico, Brazil, and Argentina, have adopted civil law systems, as well as some countries in Asia and Africa, including the Philippines, Vietnam, and Egypt.

As a result of their clear, consistent, and predictable framework for regulating various aspects of society, such as contracts, property, and family law, civil law systems are often favoured by countries with strong central governments and a tradition of codifying laws.

Common Law System

  1. Common law system origin and functions
    Starting in the 11th century, England developed a legal system based on common law principles. These principles were typically established through court cases and judgments, mostly from higher courts, that dealt with specific factual situations and disputes. As a legal system, common law is known for being highly detailed in its prescriptions, in contrast to the civil law.

    The common law system is primarily based on legal decisions made by judges. One important aspect of this system is the principle of stare decisis, which means that courts must follow the precedents set by higher courts. Lower courts may challenge these precedents through the process of appeals, which plays a central role in the common law system. Judges in this system have a significant amount of discretion and are responsible for interpreting the law.

    When an appeal is made in a common law system, a higher court will review the decision of the lower court and examine relevant precedents. While the higher court may consider new evidence, its main focus is on interpreting the law and applying precedents. Decisions made by the higher court are often subject to further appeals, with multiple levels of appeals possible.
  2. Historical development of common law system.
    The common law legal system has its roots in England and has been adopted by many countries, including the United States, Canada, and most Commonwealth countries. While the system has evolved over the past 350 years, judges still play a central role in establishing and developing common law through their written opinions. These opinions serve as binding precedents for lower courts in the same jurisdiction. However, common law systems do not rely solely on case law; democratic countries that follow this system have legislative bodies that regularly pass new laws.
  3. Common law system in India
    India is one example of a country that has based its present judicial framework on the common law system, introduced by British rule in the early seventeenth century. The Crown established a judicial system under its authority in the three largest and most important towns (Bombay, Madras, and Calcutta) under its rule.
  4. Appeals in Indian legal system
    Under a common law system, appeals are considered by a higher court, such as the supreme court or court of appeals. On appeal, the standard of review is usually more deferential to the lower court, meaning that the higher court will only overturn the lower court's decision if it was clearly erroneous or made an error of law. The process of appealing a decision usually involves the submission of written briefs by both parties and oral arguments before the appellate court.

    In the legal case Shankar v. Krishnaji  it was determined that the right of appeal allows a party to seek redress from a higher court to correct an error made by a lower court. The principle of merger of orders, which means that the decision of the higher court supersedes that of the lower court, applies equally to appeals and petitions for revision. Therefore, any distinction between these two types of legal challenges does not affect the principle of merger of orders.

As per, Section 96 Code of Civil Procedure Code.
Appeal from original decree
  1. Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
  2. An appeal may lie from an original decree passed ex parte.
  3. No appeal shall lie from a decree passed by the Court with the consent of parties.
  4. No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees.
According to Section 96 of the law, appeals can be made against an original decree. However, if a decree is passed by a court with the consent of both parties, no appeal can be made. The right to appeal is considered to be an important one, as both parties have the right to be heard. This right can only be exercised when it is granted by a statute or by rules that have the force of law. Therefore, the specific provisions of a law must be followed in order to ensure that the right of appeal is properly upheld.

Scope of section 96 of CRPC
The law establishes some fundamental guidelines for appealing original decrees, including the following:
  • An appeal can be made even against an ex-parte decree.
  • However, no appeal can be made from a consent decree.
  • There is no right of appeal from a decree in any suit that can be heard in a small claims court, except when it involves a question of law and the original suit's subject matter value exceeds Rs. 3000.
Appeals are possible under section 96 only from a decree, not from a mere finding. Section 104 of the law governs appeals from orders.

According to a ruling in Zair Hussain Khan V. Khurshed Jan by the Allahabad High Court, the right of appeal cannot be assumed in any matter that comes before a court. This right must be granted by a statute or by a similar authority that carries the same weight as a statute.

According to the ruling in Anant Mills Co. Ltd. v. State of Gujarat , it is a firmly established principle that the right to appeal is established by statute and there is no inherent right to appeal unless it is expressly provided for by law. The availability of an appeal can vary, as it may either be an absolute right or subject to the discretion of the court to which the appeal is made.

Common Law System And Civil Law Differences

  1. Differences in Appeals
    When it comes to the appeal process, there are differences between common law and civil law systems. In common law systems, appeals tend to have a wider scope, giving the appellate court the power to review both the facts and the law of the case. In this type of system, the appellate court can take a fresh look at the evidence and even make its own findings of fact, if necessary.

    The standard of review in common law systems may vary, but it often includes examining whether the lower court's decision was based on "clearly erroneous" findings of fact or an "error of law." The appellate court in a common law system can either uphold, reverse, or modify the decision of the lower court.

    On the other hand, in civil law systems, appeals are usually limited to a review of the legal issues in the case. The appellate court in a civil law system typically has a more restricted role in re-evaluating the facts, and focuses instead on ensuring that the law was applied correctly. The standard of review in civil law systems is typically "error of law," meaning that the appellate court will only overturn the decision of the lower court if it finds that the lower court made an error in applying the law.

    It's also worth noting that in common law systems, the right to appeal is often more restricted, only being available in certain circumstances, such as when there is a question of law or when there has been a procedural error. In contrast, in civil law systems, the right to appeal is typically more widely available, with the process of appeals being seen as a critical part of the legal system.

    Overall, while there are differences between common law and civil law systems in terms of the appeal process, both serve important roles in ensuring the fairness and accuracy of the legal process and in maintaining consistency in the application of the law.

    In common law systems, the right to appeal is more restricted and may only be granted in specific situations such as when there's a question of law, or when an error occurred during the proceedings. However, in civil law systems, the right to appeal is typically more widely available, and appeals are viewed as an essential part of the legal process.
  2. Appeals in French common law vs appeal in Indian common law
    In India, appeals play a significant role in the legal system by providing a means of reviewing and rectifying decisions made in lower courts. The appeal process is regulated by the Code of Civil Procedure and the Code of Criminal Procedure.
The Indian legal system has two types of appeals, namely first appeals and second appeals. First appeals are heard by a higher court that is one level above the court that rendered the original decision. Second appeals, on the other hand, are heard by either the highest court in the state or the Supreme Court of India, depending on the nature of the case and the amount of money in dispute.

In India, the appeals process is guided by the principle of "substantial justice," which requires the appellate court to examine whether the lower court's decision was just and fair, and whether it was in accordance with the law. The appellate court can review both the facts and the law of the case, and may affirm, reverse, or modify the lower court's decision.

Similarly, in France, appeals are a crucial aspect of the legal system and are governed by the Code of Civil Procedure. They serve as a means to review and correct decisions made in lower courts.

Appeals are an important part of the legal process in France and provide a way to review and correct decisions made in lower courts. The Code of Civil Procedure governs the appeal process in France.

In the French legal system, there are two levels of appeals: the Cour d'appel and the Cour de cassation. The Cour d'appel is the first level of appeal, and it checks whether the lower court's decision was in line with the law. The Cour de cassation is the highest court in France and only reviews the legal aspects of the case, not the facts.

The French standard of review is based on the "error of law" principle. This means that the appellate court will only overturn the lower court's decision if it finds that the court made an error in applying the law. The appellate court does not have the power to re-examine the facts of the case.

Meanwhile, the legal systems of India and France both have mechanisms in place for appeals that are intended to promote fairness and accuracy in the legal process and maintain consistency in the application of the law. Although there may be variations in the process and procedures of appeals between the two systems, both systems are integral to the administration of justice.

Limitations Of Appeal System In India

The Indian legal system's appeal process has some limitations that can cause problems for people seeking justice. One significant problem is that the process takes a long time, sometimes even years, to reach a final decision. This can be really frustrating for people who are waiting for a resolution to their case.

Another issue is that the appeal process is limited in what it can consider. The higher court can only look at questions of law and not questions of fact. So, even if the lower court made a mistake in a factual matter, the higher court can't overturn the decision based solely on that.

There's also a huge backlog of cases in the Indian legal system, which can cause further delays in the appeal process. And it can be really expensive to pursue an appeal, with people having to pay for lawyers and court fees. This can be a real financial burden, especially for people who don't have a lot of money.

Finally, the Indian legal system still uses a lot of paper-based processes, which can be slow and inefficient. This can cause further delays in the appeal process and make it harder for people to get the justice they need.

In short, there are several limitations in the Indian legal system's appeal process that make it less efficient and less accessible to people.

Suggestions And Conclusion
There are several potential improvements that could be made to the appeal system in the Indian legal system. One major issue that needs to be addressed is the long delays that litigants often experience when pursuing an appeal. To reduce these delays, the appeal process could be streamlined by setting up specialized courts, increasing the number of judges, and adopting digital tools.

Another potential improvement would be to increase the scope of appeal. Currently, the appellate court can only consider questions of law and not questions of fact. By broadening the scope of an appeal to include factual matters, the higher court would be able to consider all aspects of a case and potentially overturn a decision based on a factual error made by the lower court.

The backlog of cases in the Indian legal system is another significant issue that needs to be addressed. To reduce the backlog and speed up the appeal process, measures could be taken such as increasing the number of judges, improving court infrastructure, and implementing alternative dispute resolution mechanisms.

The cost of the appeal process can also be a significant burden on litigants, especially those who are financially disadvantaged. To reduce costs, free or subsidized legal aid could be provided to those who cannot afford to pay for lawyers and court fees.

Finally, implementing technology would improve the efficiency of the appeal process. By adopting digital tools such as e-filing systems and video conferencing, the amount of paperwork involved could be reduced, communication could be sped up, and the process could be made more accessible to people who live in remote areas.

In conclusion, the appeal process in the Indian legal system has several limitations that can cause frustration and hardship for litigants seeking justice. However, there are several potential improvements that could be made to the appeal system, such as streamlining the process, increasing the scope of the appeal, reducing the backlog of cases, reducing costs for litigants, and adopting technology. By implementing these improvements, the appeal process could become more efficient, less expensive, and more accessible to all.

To conclude, the appeal process is a crucial part of the Indian legal system, providing an opportunity to ensure that justice is served and errors are corrected. By enabling cases to be re-examined, the appeal process promotes fairness, impartiality, and transparency in the legal system, while also giving a sense of closure to those involved. The legal system in India would be much less effective in safeguarding the justice and protecting the rights of individuals without the appeal process.

  1. Manlio Bellomo, The Common Legal Past of Europe 1000-1800 (Washington DC, 1995).
  2. The Judicature Act, 1873. 36 & 37 Vict. 66.
  3. The code of civil procedure, 1908
  4. AIR 1970 SC 1, (1970) 72 BOMLR 179, (1969) 2 SCC 74, 1970 1 SCR 322
  5. Source-book on French Law 233 (Sir 0. Khan-Freund et al eds, 3d ed. rev, 1990).
  6. Judicial Reforms in India: Issues and Aspects, Academic Foundation with Rajiv Gandhi Institute for Contemporary Studies, New Delhi
  7. Torre A. (2003): "The Impact of Court Delays on the Prosecutor and the Defendant: An Economic Analysis". 16 European Journal of Law and Economics

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