The History And The Present Of The Civil Codes In Latin Ameriaca

Latin America legal system is an important component of Roman law. The civil codes in Latin American countries mainly come from a combination of three kinds of law,which are Roman law, Iberian law and Indian's customary law. As the culture of Latin American countries is similar, the Civil Codes in Latin American countries are quite resemble in the theoretical origins, sources, specific rules, etc. Different from that in Europe , Asia and African, the civil codes in Latin America have distinct characteristic. The civil codes in Latin American countries have been developed for more than 100 years, and accumulated rich experience and achieved fruitful results, with much innovation.In the formation and development of the Civil Codes in Latin America, they are influenced not only by the Civil Codes of European countries, Spain and Portugal, but also by unique culture of their own. So the Civil Codes of Latin American countries had demonstrated a number of uniqueness. The Civil Codes in Latin American countries are developing and improving with the changes of the economic and social conditions.The first phase of development of the Civil Codes in Latin America is an embryonic period,which not only including the times of the Indians, but also including the period of Spain and Portuguese ruling time. Before the invasion of the Spanish and Portuguese in Latin America, there are no civil codes and statutes, only unwritten law, which later becoming the source of Latin America.During the ruling period of the Spanish and Portuguese, Latin American countries adopted the civil law of Spanish and Portuguese,which becoming the basis and the main source of the civil codes in Latin America countries.The second stage is the post-independence era of codification in Latin America, Latin American countries launched a massive campaign of civil codification after independence, drawing on the European countries, especially the French Civil Code, so Latin American countries have their own civil law Code. The third phase was the recodification and modernization period in Latin American countries since the 20th century. At this stage,Latin American countries followed the development trend of the civil codes of the the world, they have upgraded their civil codes by ways of recodification, renovation and special civil laws. Brazilian Civil Code 2002 is the world's latest civil code.In this paper, I do a preliminary study of basic questions on the civil codes in Latin American countries from a perspective of the formation and development of civil codes, the relationship between Roman law, French and German law, Spain and Portugal law. I greatly use of the method of comparative law in the research of civil codes in Latin American countries, comparison the similarities and differences of the civil codes among Latin American countries and European civil codes, combination two research methods of civil law discipline and legal history disciplines.I research both from the perspective of civil law and the perspective of legal history to explore the evolution and changes of the civil codes in Latin American countries.Besides the introduction and conclusion of the dissertation, it is divided into seven chapters, the main contents are as follows:Chapter one, the civil law before independence in Latin America. As a base of the dissertation, this chapter explain two stages before independence in Latin America. Firstly, I analysis the civil customary law of Indian before the invasion of Spanish and Portugal and then discusse the legal development in Spain and Portugal. Secondly, I clearly outline the civil law of Latin American countries during the colonial period, particularly emphasis the the impact of the Seven Books of Law on the Latin American civil law.Chapter two, the codification of civil codes in Latin American countries after independence. Firstly, in this chapter, I analyzes the economic, political and academic conditions after the independence of Latin American countries. Secondly, I explain the reasons why the French Civil Code became the examples of civil codes in Latin American countries. Thirdly, I point out that the Civil Code Codification Movement(1825 -1916) is of great significance to the development of civil codes in Latin America.Fourthly, I list the innovation and contribution to civil codes in Latin America,such as the legal person system. During the mid-nineteenth century, the political situation in Latin America countries has been stabilized, so the codification of civil codes is possible.There are three excellent civil codes in Latin America which are Chilean Civil Code, Argentinan Civil Code and Brazilian Civil Code. The Chilean Civil Code of 1855 drafted by Andrs Bello was perhaps the most influential codification in the development of Latin American private law after independence from Spain. Bello's use of the French Civil Code can be best understood by placing his borrowing of French law into the legal and historical context of Chile. The Code was not only used in Chile, but was later adopted as a whole in El Salvador, Ecuador, Venezuela, Nicaragua, Colombia, and Honduras. Bello's code was a main source for and influence on the civil codes of Uruguay, Mexico, Guatemala, Costa Rica, and Paraguay. Thus, the Chilean Civil Code was successful not only in Chile, but throughout Latin America. The completion of the Civil Code Codification Movement of the Latin America marked the formation of the Latin American legal systems.In addition to the impact by European civil codes, the civil codes in Latin America are also influenced by the Louisiana Civil Code which mixing the common law factors and has its own characteristics. The Civil Code Codification Movement in Latin America made them modernize their civil law.Chapter three, the principle,source,framework and features of civil codes in Latin America. The civil codes in Latin American countries not only stipulate a few basic principles of law, but also establishes the principles and spirit of the civil code, namely, sacred of ownership, freedom of contract, and fault liability. Latin American civil codes origin in Roman, Spain, Portugal and French civil law and civil law theory, as well as some states of the civil codes in the United States.Most Latin American countries learn from the French Civil Code which modeled on the Institutes of Justinian. However, the Latin American countries do not entirely mechanically copy French Civil Code, they have a choice and adaptation in accordance with national conditions and development of legal theory. In general, they split part III of French Civil Code into two parts, the law of inheritance or property law. The civil codes in Latin American countries are quite similar in source, content, and compilation. In this chapter, I discuss the style, structure and characteristics of civil codes in Latin America.Chapter four, the modernization and recodification of civil codes in Latin America. In this chapter, I examine the the reasons and process of the modernization and recodification of civil codes. With the social and economic development, and the ideas of protection of human rights, the modernization and recodification of civil codes are inevitable. Modern civil law principles and spirit require the modernization of civil codes in Latin America which are specific personality, restriction of property ownership and freedom of contract, no-fault liability. After turning into the twentieth century, in order to meet the socio-economic and legislative changes, the civil codes in Latin America are inspired a wave of reform trend, using the methods of partial innovation or whole innovation. Because the recodification of the civil codes is often caused by sudden dramatic changes in law would break the continuity of legal development and undermine the stability of the law, the modernization and recodification process of the Chilean Civil Code and the Argentine Civil Code are very difficult.However, the recodification of the the Brazilian Civil Code has provided a model to Latin American countries.Chapter five, comments on the civil codes in Latin American countries. In this chapter, I comment on the civil codes in Latin America from six aspect. Firstly, I gave a brief description of the civil codes in Latin America.Secondly, I do an objective commentary on the content and sources of the civil codes in Latin America. The preface of the civil codes in Latin America is imitated from the French Civil Code, which including the concept of the law, the promulgation of the law, the legal effect, the sources of law, the legal interpretation of the rules of evidence, rules, basic principles, duration,date, etc. These content is the head of the entire legal system, which usually is a part of the constitution or legislative law.Part I of the civil codes in Latin American countries generally contains information about person and family law, namely about the subject of civil rights.The marriage, family and inheritance in the civil codes in Latin America inherit the Spanish legal tradition and affected by Cannon law. The content of the Latin American property law include property and its ownership, possession, use and benefits.Chapter six, the codification of commercial codes and the relationship with civil codes. The civil codes and commercial codes is an integral part of the private law system. In this chapter, I discuss the process of the formulating of the commercial codes and review the comment the commercial codes in Latin America.I also study the relations between the commercial codes and the civil codes. Latin American countries both made civil codes and commercial codes.When application of private law, the judge apply the commercial codes first. When there is no rules in commercial codes, the judge then apply the civil codes. Sometimes, the Latin American countries make special laws. Now, although the commercial codes are broken by special laws, the commercial codes are still there but getting smaller and smaller. The Brazilian Civil Code of 2002 establishes a good model to incorporate the commercial codes into civil codes.Chapter seven, the development trends of the civil codes in Latin America. In this chapter, I analyze the development trend and prospect of civil codes in Latin America.The civil codes in Latin America are individual-based,and now are social-based.On one hand the Latin American countries are sticking to French tradition, on the other hand, they learn the advantages of various countries, and pay more attention to protect human rights. As the development of regional cooperation, the civil codes in Latin America are becoming similar and similar. In the relations between civil codes and commercial codes, commercial codes are incorporated into civil codes in Latin America.