Civil and criminal jurisdiction

1. In civil-law countries a more active role is assigned to the judge and a more passive role to counsel than in common-law countries. In the common-law courts, in which the "adversary" procedure prevails, the lawyers for both sides bear responsibility for producing evidence and they do most of the questioning of witnesses. On the contrary, in civil-law countries, "inquisitorial" procedure prevails, with judges doing most of the questioning of witnesses and having an independent responsibility to discover the facts. So, the difference pertains more to procedure rather than to function.

2. If a person has been found guilty, he is sentenced, again according to law and within the limits fixed by legislation. The objective is not so much to wreak vengeance upon the offender as to rehabilitate him and deter others from following his example. Hence, the most common sentences are fines, short terms of imprisonment, and probation (which allows the offender to remain at large but under supervision). In extremely serious cases, the goal may be to prevent the offender from committing further crimes, which may call for a long term of imprisonment or even capital punishment. The death penalty, however, is gradually disappearing from the criminal codes of civilized nations.

3. As far as civil courts are concerned they deal with "private" controversies, as where two individuals (or corporations) are in dispute over the terms of a contract or over who shall bear responsibility for an auto accident. Ordinarily, the public is not a party as in criminal proceedings, for it has no interest beyond providing just rules for decision and a forum where the dispute can be impartially and peacefully resolved.

4. It is possible, however, for the government to be involved in civil litigation if it stands in the same relation to a private party as another individual might stand. Thus, if a postal truck should run down a pedestrian, the government might be sued civilly by the injured person; or if the government contracted to purchase supplies that turned out to be defective, it might sue the dealer for damages in a civil court.

5. The objective of a civil action is not punishment or correction of the defendant or the setting of an example to others but rather to restore the parties so far as possible to the positions they would have occupied had no legal wrong been committed. The most common civil remedy is a judgment for money damages, but there are others, such as an injunction ordering the defendant to do, or refrain from doing, a certain act or a judgment restoring property to its rightful owner.

6. Civil claims do not ordinarily arise out of criminal acts. A person who breaks his contract with another or who causes him a physical injury through negligence may have committed no crime but only a civil wrong for which he may not be prosecuted criminally by the public. There are, however, areas of overlap, for a single incident may give rise to both civil liability and criminal prosecution. In some nations, such as France, both types of responsibility can be determined in a single proceeding under a concept known as adhesion by which the injured party is allowed to assert his civil claim in the criminal prosecution, agreeing to abide by its outcome. This removes the necessity of two separate trials. In common-law countries there is no such procedure, even though civil and criminal jurisdiction may be merged in a single court. Two separate actions must be brought, independent of each other. Although there are some courts that handle only criminal cases and others that handle only civil cases, a more common pattern is for a single court to be vested with both civil and criminal jurisdiction. Such is the High Court of England and such are many of the trial courts found in U.S. states. Often these tribunals are called courts of general jurisdiction, signifying that they can deal with almost any type of controversy, although in fact they may not have jurisdiction over certain types of cases assigned to specialized tribunals. Often such courts are also described as superior courts, because they are empowered to handle serious criminal cases and important civil cases involving large amounts of money. Even if a court possesses general or very broad jurisdiction, it may nevertheless be organized into specialized branches, one handling criminal cases, another handling civil cases, another handling juvenile cases, and so forth. The advantage of such an arrangement is that judges can be transferred from one type of work to another, and cases do not fail to be heard for having been instituted in the wrong branch since they can be transferred administratively with relatively little effort.