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Article Published in the Express Magazine Dated
November 04,
2001
General Attorney : Rajiv K. Luthra
I am working in the international trade,
especially with Italy and Germany. I have come to
know about major differences in the legal systems
between India and some European Countries, which
influences the international trade. Could you
please explain briefly the existing different law
systems?
P. K. Singh, Mumbai
There are mainly two different legal systems
practiced by the different countries, namely the
Common Law System and the Civil Law System.
The Common law system is broadly speaking based on
the case law, judicial decisions and statutory law
of England and the American colonies before the
American Revolution. This system emphasizes case
law, customs and usage rather than legislative
enactments. The Indian legal system is a product
of history. As such it is not a mere copy of the
English common law, though deeply inspired and
strengthened by concepts and precepts of the
Common law system, which, in general, is a body of
law that develops and derives through judicial
decisions as distinguished from legislative
enactments alone.
The civil law system is derived primarily from
Roman law as set forth in the compilation of codes
and statutes of the Emperor Justinian, called
Corpus Juris Civilis, and later refined in the
French or Napoleonic Code Civil of 1804. Codified
law builds the basis for this system.
The distinction between the common law system and
the civil law system is indeed an important factor
for the functioning of international trade. The
differences arise from the different origins along
with the unique traditions and practices in each
system. You will find a different approach to
legal issues in the international trade according
to the law, that you choose to be applicable in
your contract.
My friend has been convicted for an offence of
food adulteration. He has been sentenced to
imprisonment for 18 months along with a fine. This
is the first time, he has been convicted and I
have learnt that under some law prevalent in the
country, a person may be released if he has never
been convicted before on his furnishing a bond
along with an assurance of good behavior in the
future. Is it possible for my friend to claim such
a benefit also?
Raghavan, Mumbai
The Probation of Offenders Act, 1958 empowers the
court to release certain offenders after due
admonition. The emphasis of this Act is to reform
and rehabilitate offenders who have not been
previously convicted and are guilty of a lesser
offence and not those which are punishable with
death or imprisonment for life.
However, since adulteration of food is a menace to
public health, the Prevention of Food Adulteration
Act, 1954 ("Act"), has also been enacted. The aim
of this Act is to eradicate the anti-social evil
and ensure the purity in food items. The
Legislature in its effort to discourage any such
antisocial activities, in the guise of respectable
trade, introduced Section 20-AA to the Act. This
Section provides that nothing contained in the
Probation of Offenders Act or the Code of Criminal
Procedure, 1973 shall apply to a person convicted
for an offence under this Act unless that person
is less than 18 years of age. Hence, the benefits
of the Probation of Offenders Act can be
applicable to your friend only if he is below 18
years of age. Besides nobody can claim the benefit
of the latter Act as a matter of right and the
court's pass appropriate orders in the facts and
circumstances of each case, having regard to the
nature of the offence, its general effects on the
society and the character of the offender etc.
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