《COMPARATIVE LAW CASES-TEXT-MATERIALS FOURTH EDITION》求取 ⇩

A. THE NATURE OF A FOREIGN LAW PROBLEM1

Ⅰ. INTRODUCTION: THE COMPARATIVE METHOD—ITS PURPOSE AND PROMISE1

1. The Comparative Method Applied to Domestic Problems2

a. The Foreign Solution as a Model—Foreign Elements in Domestic Law2

b. The Foreign Solution as a Contrast or a Means of Gaining Perspective18

2. The Comparative Method Applied to Transactions Across International Boundaries25

a. Problems Arising from Differences Among Legal Systems25

(aa) Comparative Law, Conflict of Laws and International Law25

(bb) Foreign Law Problems in Domestic Legal Practice29

(cc) Foreign Operations and Foreign Litigation32

b. Bridging the Differences Among Legal Systems32

(aa) Unification and Harmonization33

(bb) The Common Core of Legal Systems36

3. The Comparative Method as a Scientific Approach41

Ⅱ. FOREIGN LAW IN OUR COURTS: PLEADING AND PROOF OF FOREIGN LAW45

1. The Basic Doctrines45

a. The Common Law Doctrine: Foreign Law as a "Fact"45

b. Statutory Modifications and Innovations58

c. Ramifications of the "Fact" Doctrine82

2. The Over-All Tactics of Foreign Law Litigation: Consequences of Failure to Invoke or Prove the Applicable Foreign Law88

3. The Pre-Trial Phase: Pleading and Notice-Giving in Foreign Law Cases121

4. The Trial Phase: Techniques of Proving Foreign Law128

a. Documentary Evidence Including Official Certificates128

b. Proof by Experts137

(aa) Necessary Qualifications of a Foreign Law Expert137

(bb) Legal Education in Civil Law Countries and Its Bearing Upon the Qualifications of Civil Law Experts145

(cc) The Art of Examining and Cross-Examining Foreign Law Experts191

(dd) Court-Appointed Experts216

5. A Comparative Side-Glance: The Procedural Treatment of Foreign Law in Other Legal Systems218

B. COMMON LAW AND CIVIL LAW—COMPARISON OF METHODS AND SOURCES222

Ⅰ. COMMON LAW AND CIVIL LAW JURISDICTIONS DISTINGUISHED222

1. Nature and Significance of the Distinction222

2. The Distinguishing Features of the"Civil Law"—Their Historical Roots238

a. The Pre-Codification Period238

b. The National Codifications—Traditional and Modern Elements in the Civil Law269

3. Geographic Expansion of Common Law and Civil Law303

Ⅱ. PROCEDURE IN CIVIL LAW COUNTRIES329

1. The Course of a Civil Lawsuit—Essential Elements of Procedural Institutions in Modern Civil Law Countries331

a. Selection of Counsel—Organization of the Legal Profession333

b. Lawyers' Fees342

c. Organization of Courts352

d. "Jurisdiction"—Some Traditional (But Gradually Disappearing) Differences Between Civilian and Common Law Thinking361

e. Service of Process(And a Glimpse at International Judicial Cooperation)382

f. Pleadings and Formation of Issues390

g. Evidence396

h. The Court's Decision415

i. Appeals424

2. The Place of "Civil" Litigation in a Civilian System—Lines of Demarcation435

a. Commercial Courts435

b. Arbitration436

c. Criminal Procedure438

d. Procedural Treatment of Concurrent Criminal and Civil Liability457

e. Public-Law Disputes462

(aa) The Civilians' Dichotomy Between Private-Law and Public-Law Litigation462

(bb) The Dichotomy (Between Private-Law and Public-Law Litigation) in International Contexts483

3. Comparative Civil Procedure—Some Questions and Observations489

Ⅲ. SUBSTANTIVE LAW494

1. System and Organization of the Codes494

2. Judicial Interpretation of Codes—The Force of Precedents in a Code System550

3. Political, Social and Moral Elements in the Principal Codes608

a. The Codes and Economic Freedom609

(aa) The Parties' Freedom to Shape Their Contracts and Other Transactions609

(bb) Enforcement of Contracts613

b. The Codes and Security of Transactions634

(aa) The Principle of Publicity in the Transfer of Land634

(bb) The Principle of Publicity in Transactions Not Relating to Land646

c. The Codes and the Idea of Justice: Boni Mores, Bona Fides and Abus des Droits—No Separation of Law and Equity653

C. A TOPICAL APPROACH TO THE CIVIL LAW: SOME ILLUSTRATIVE SUBJECTS721

Ⅰ. AGENCY721

1. The "Abstract Nature" of the Agent's Power721

2. The Interaction of Civil Codes and Commercial Codes in the Law of Agency—Application of the Principle of Publicity728

3. Powers of Attorney—Form Requirements731

4. Powers of Attorney—Construction and Scope733

Ⅱ. CORPORATIONS748

1. Civil Law and Common Law Methods in the Law of Corporations750

2. Bearer Shares759

3. Limited Liability Companies781

4. Protection of Creditors and Minority Stockholders786

a. Preservation of the Registered Amount of Capital786

b. Minority Stockholders' "Equitable Remedies"787

Ⅲ. CONFLICT OF LAWS793

1. Conflicts Rules Built into a Code System: Their Form and Structure794

2. Illustrative Conflicts Rules Derived from Civilian Codes800

a. Nationality as a Basis of Judicial Jurisdiction800

b. The Impact of "Ordre Public" on Contingent Fee Agreements805

D. CAVEAT: THE SPECIAL HAZARDS OF COMPARATIVE LAW815

Ⅰ. LANGUAGE DIFFICULTIES815

Ⅱ. DIFFERENCES IN CLASSIFICATION819

Ⅲ. THE CONTRAST BETWEEN THE PRINTED WORD AND ACTUAL PRACTICE827

APPENDIXA BRIEF EXCURSUS ON COMPARATIVE AND FOREIGN LAW RESEARCH: HOW TO FIND THE RELEVANT MATERIALS837

Index845