Standard of Proof Common Civil Law Comparative Perspective Law Essay

In both legal systems, common law and civil law, criminal and civil matters are the majority of issues occurring in legal proceeding. Criminal matters are legal affiliation between governments and citizens in which governments take a superior position. “Criminal process, typically although not exclusively, is initiated by the government or an agency of government, and is directed towards the punishment of an individual who is alleged to have contravened a rule of conduct for which such punishment has been made the sanction”. [1] In contrast, civil matters concern legal relationship among citizens with in which every party has an equal position. Civil matters are related to protection of personal rights considering loss of the breach of private obligations. [2] Consequently, this broad distinction influences any processes during examination in courts, particularly in the standards of proof, in both common law and civil law systems. 

[3] The scope of this essay focuses on the proof process in courts.

This essay will initially explain the differences between common law and civil law. Then, it will compare the standard of proof in both criminal and civil matters in common law jurisdiction. Next, it will also contrast the differences between standard of proof in both criminal and civil matters in Indonesia as a civil law country. In this context, common law refers to a legal system which comes from the English legal system, whereas civil law refers to a legal system which comes from the European continental system or Roman law and the Germanic tradition. [4] It can be seen that both system are “products of western civilization”. [5] There are three main differences in the characteristics of common law and civil law, namely applying and interpreting the law stated in a statute to cases, the roles of jury and judges, and the binding force of precedents. 

[6] In the common law system, laws are usually created by judicial decision, and thus law contained in code is a secondary resource. [7] On the contrary, in civil law, “courts should be denied any interpretative function and should be required to refer problems of statutory interpretation to the legislature itself for solution”. [8] This difference is affected because of the difference of role of legislator. In common law, the legislator provides the main task of courts to create law, while in civil law courts should apply the law which is created by the legislator. 

[9] The role of jury has significant influence in courts in common law tradition. [10] The jury is representative of citizens to establish decision. On the other hand, in civil law tradition, judges decide cases based on the evidence in examination process. Jury is unknown in civil law tradition. [11] After examining evidence and witnesses, and hearing indictment and pleading, judges discuss and then formulate verdict of a case. Therefore, in civil law courts, judges’ roles include leading trial process, examining evidence and witnesses, and create a verdict. Courts’ decisions should be similar to previous decisions.

This is a consequence of the doctrine of precedents in the common law system. However, in civil law system, this doctrine is not applied.

Every judges’ decision could be different from other or previous decisions. The main role of the court is to establish the law legislated by legislator to cases. Beside three main differences, there are also some differences between common law and civil law. The common law procedure is usually called “adversarial”, while civil law it called “inquisitorial”. [12] Another difference is in the common law, oral evidence usually is positioned over written evidence, whereas in the civil law, written evidence prevails over oral evidence. [13] Moreover, common law tradition is known “preparation of witnesses”, but in civil law, “preparation of witnesses” is not allowed. In common law, a standard of proof in criminal law and civil law trials are different. The standard of proof in criminal proceedings is beyond reasonable doubt, while in civil proceeding is balance of probabilities.

This dissimilarity might be because of the difference between criminal and civil matters are. It has been explained above, that criminal matters are legal affiliation between governments and citizens in which governments take a superior position. On the other hand, civil matters are related to protection of personal rights considering loss of the breach of private obligations. [14] Therefore, the distinction influences many aspects during examination process. In criminal proceedings, the burden of proof is on the prosecution. “The prosecution have the burden of proving the quilt of the accused person beyond reasonable doubt”. [15] It means that the prosecution should convince the jury that the defendant is guilty by showing evidence. Moreover, the defendants also have the rights to persuade the jury by preset their own evidence. Therefore, it can be said “The prosecution and defence have only two polar options to choose from when bargaining to settle the criminal case”. [16] The judges, in criminal trials, are actively pursuit ultimate truth. The judges also have obligation to organise criminal proceeding in order to ensure that every party: the prosecutor, the defendant and the jury, is able to serve their rights. Furthermore, “one of the functions of the judge is to inform the jury about the meaning of key terms, the principles of the applicable law, and the facts which must be proved to justify their verdict”. [17] In civil proceeding, on the contrary, judges are less active to examine evidence and witnesses.

The parties in dispute has obligation to present evidence and witnesses and it can be established cross examination. They have to provide sufficient evidence to support their position. [18] In the other word, “the party with the burden of proof need only prove his claim by a so-called “preponderance of evidence”. [19] Moreover, “the plaintiff prevails only if “the preponderance of the evidence” is in the plaintiff’s favour”. [20] Indonesia is a civil law country. Historically, this is because Indonesia received the legal system from Dutch colonial government and as a consequence of concordance principle. Indonesia, recently, has revised most of the acts which it received from the Netherlands government. In criminal law, Indonesia revised the main procedural act in 1981 (KItab Undang-undang Hukum Pidana/KUHAP), [21] but the main substantive law is processed in the parliament. On the contrary, Indonesian main acts associated with civil matters have not been revised.

Consequently, Indonesia still imposes both the main substantive and procedural law in civil matters legislated before Indonesia become independent. Therefore, Indonesian Criminal Procedural Code could be in compliance with social change, while the civil procedural act might be unable to be suitable with Indonesian social movement. Based on this situation, it seems that the distinction contributes to the implementation of criminal and civil procedural acts. Standard of proof, particularly, in civil matters and criminal matters are quite different. There are four main differences in this area, namely the main purpose of examination on the court, the judges’ roles and the kinds of evidence and reasons in judges’ decision. In common law jurisdiction, there are “beyond reasonable doubt” in criminal matters and “balance of probabilities” in civil matters. Similarly, in civil law jurisdiction, there are “material truth” in criminal matters and “formal truth” in civil matters as the main standard of examination on courts.

Basically, criminal courts must actively find and obtain a material truth or at least closest to the ultimate truth. [22] Material truth constitutes as the essential aim for all parties (judges, attorney and defendant) in criminal court to prove the evidence completely as the fact of a case. In contrast, civil court must decide cases based on evidence provided by both parties. It seems that both parties have responsibility to present evidence. “Consequently, a party is obliged to produce only those documents which are referred to in its pleadings”. [23] In addition, “…in civil law the complaint actually determines the parameters of the case”. [24] It means that civil courts would only focus on the complaint in the examination process. In criminal trial, attorneys must draw prejudgement in the beginning as a reference of examination. [25] The prejudgment contains defendant’s acts and rules related with the acts. [26] Thus, the responsibility for proving the acts is on the attorneys. This is because of the principle of “presumption of innocence”. [27] The attorneys have more responsibility to make the judges believe that the defendant is guilty by showing the proof. [28] Moreover, judges must decide cases based on prejudgment. If in the court, prejudgment could not be proved because the attorneys make mistakes in applying rules, consequently, judges will decide to release the defendant. [29] Even though, defendant’s acts were proved completely. The consequence of material truth is judges must also actively find facts of cases. [30] It is called “inquisitorial”. [31] Judges not only examine the evidence or witnesses showed by attorneys and defendants, but also they could command attorneys and defendants to present others evidence and witnesses. “The judge does not have to wait for the counsels to present evidence, but he or she can actively initiate introducing of relevant evidence and may order one of the parties to disclose evidence in its possession”. [32] This is for the reason that judges want to make sure that the defendant is guilty or not.

Even though, if defendants admit a crime, but there is no evidence, judges will decide to release them. [33] This is because judges must meet with real truth. On the other hand, in civil trials, judges are rather passive when examining evidence and witnesses. This passive way also means that if the parties in dispute agree to finish the conflict, the judges cannot impede the agreement. [34] In addition “Civil law procedure is usually called “inquisitorial”, because the judge examines the witnesses, and the parties in dispute practically have no right of cross-examination”. [35] In Indonesian civil trials, burden of proof is on a party that have the greater opportunity to prove it. [36] Moreover, there is a principle called audi et altera parte. It means that judges are not allowed to justify a statement from a party, unless they clarify to the other party. [37] Finally, the judges decide that the party who could show more solid evidence would be considered as “the winner”. There are five kinds of evidence in Indonesian criminal courts. [38] This evidence is stated in KUHAP from the strongest to the weakest. First position is witnesses’ explanations, then experts’ information. There are three criteria of people who can be a witness.

They are those who are or have experiencing, seeing and hearing something related directly to a case. [39] Indonesia practices “unus testis nullus testis” principle, which says judges’ decision cannot be only based on one witness, it must be based on at least two witnesses. [40] On the contrary, experts must present information that is only related to their knowledge. [41] Furthermore, the third form of evidence is written documents, and followed by clues. Documents are which is issued by the authority. [42] Clues are information or acts which can be linked logically one to another, and thus they create a logical conclusion. [43] In addition, defendants’ explanations take the last position. Defendants’ explanation can be withdrawn during the examination process. [44] In civil court, there are five sorts of evidence. Similarly, the evidence is stated in HIR from the strongest to the weakest. [45] First evidence is documents. Based on HIR article 165-167, documents are signed letters containing incidents and constitute as basis of rights and agreements for making evidence.

Different with evidence in criminal court, witnesses take the second position. The classifications of witnesses in civil courts are quite similar with criminal courts. Witnesses are people experiencing, seeing and hearing something related directly to a case. [46] The principle of “unus testis nullus testis” is also applicable in these courts. Moreover, the third position is presupposition.

Presupposition means a conclusion which is created from information in documents and witnesses. [47] The last two positions are admission and oath. Admission is a party’s statement justifying the opposite party’s rights or an event. [48] As a consequence of this, the opposite party is not obligated to prove its rights or event. [49] Additionally, based on 155, 156, 158,177 HIR oath in this terms does not mean how to make an oath, but information or statements which are given under oath. [50] Indonesian criminal courts practice Negatief Wettelijk Stelsel as the reason for judges to make verdict. Negatief Wettelijk Stelsel means that decision of judges based on prejudgement must be based on two reasons. [51] First, judges strongly believe that a defendant is guilty. Secondly, the belief is supported by at least two pieces of evidence which have been determined by rules. [52] Consequently, judges’ belief and proved evidence are united and cannot be separated. In Indonesian civil courts, a judge’s decision must consist of adequate and faultless reasons and considerable. [53] Additionally, judge’s decision must show articles from acts and unwritten rules as reference for judging. [54] Moreover, judges cannot decide something which is not requested or claimed by the parties. Therefore, the decision could grant or not grant all or some of the requests or claims, but it cannot add something which is not requested or claimed by the parties. [55] There are broad distinctions between civil law and criminal law, particularly in the proof process, in both the common law and civil law system.

Based on the arguments mentioned above, it can be concluded that the distinctions seem insignificant. Basically, it can be seen that justice could still be reached, even though there is a difference in the manner of proof process.

Moreover, standard of proof in civil law and criminal law can be said to be similar. Beyond reasonable doubt in common law, and material truth in civil law have the same purpose to obtain certainty of facts. Similarly, the balance of probabilities in common law and formal truth in civil law have the same goal. The important thing is “the differences which exist between civil law and common law should not be exaggerated”. [56]

Cite this page