TOPIC 5 : METHOD ON LEGAL REASONING

  • type of legal system : basic legal system,widespread legal system

    • basic legal system - civil law, common law, customary law, religious law & mixed

    • widespread legal system - civil law, common law

      - Malaysia use common law (buat law refers to english law and indian law / colonization : english)

      - USA used mixed law

  • difference common law & civil law

    • common law - judge will not interfere the arguments , only listen and make decisions based on the fact of the case told by the lawyer/prosecutor

      - judge as referee to ensure fairness and legal rules procedure followed 0136102706 (athira maisarah)

    • civil law - judge can investigate the fact/case, he listen to the argument can investigate the case (judge involved more in the case)

    • adversarial system (common law) : best way to get the truth (competitive process the determine the facts) and protecting individual rights

      • prosecution and defense responsible to gather and present evidence. (criticized potential for unequal representation based on resources)

    • inquisitorial system (civil law) : ada pre-trial investigation (to determine the defendant is innocent/not) and protecting public interest

      • usually bias lagi tinggi compared to common law country

      • known as an official inquiry to get the truth

      • judge has more control over the process & evidence considered

  • ADR (alternative dispute resolution)

    • method : mediation, adjudication, arbitration, conciliation

    • mediation : mediator not giving solution, instead give suggestion

    • arbitration : arbitrator decision is binding decision (decision can be challenge if other party dislike the decisions : to high court) , more flexible (f2f,online)

      - respect the autonomy of parties (can use any law from any country in the world)

      • challenge boleh bil arbitrator : limit the autonomy of parties, equality, have any relationship with any of the parties

    • conciliation : only for family disputes (act as mediator)

    • adjudication : applied in building industry (pembinaan bangunan gitu kot)

    • negotiation : very rare to use