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World Traveler
Joined: 29 May 2009
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nate1983
Joined: 30 Mar 2008
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Posted: Fri Feb 27, 2015 12:26 pm Post subject: |
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Fox wrote: |
nate1983 wrote: |
Right. It doesn't really make sense to say something "violates" civil law, as civil law is concerned with liability and redress among private parties. |
I'm not a lawyer, and I'd love to learn more, so help me out here. Why does a legal advice article like this, allegedly written by someone with some measure of (at least self-declared) legal training and experience, contain a phrase like, "Although adultery is not a criminal offense, it’s still in violation of certain Texas civil laws," if it doesn't make sense to say something "violates" civil law? Or why does this book, likewise written by someone ostensibly with some knowledge of law, include the phrase, "Civil procedure is used when civil law has been violated," if it doesn't make any sense? Semantics are important, and if I've said something in error, I obviously don't want to make the same mistake again, so I'd appreciate it if you could explain this for me in depth. Thanks in advance! |
I'm certainly not the best equipped to explain this, but I'll give it a shot (to give some background I took Civil Procedure at Columbia Law School, so approaching this from the perspective of the US legal system). Civil cases have to be thought of in contrast to criminal cases. Both civil and criminal cases involve a defendant, but civil cases have a "plaintiff" while criminal cases have a "prosecution."
In common law systems like the US or England, much of the law governing civil actions is unwritten, and is known as "common law" or "case law," and is created by the courts over the years. Judicial precedent is essentially binding on future cases (although very rarely past decisions are overturned when they're no longer thought to be "good law"), and the holdings from these precedential cases become "the law" for future actions.
Criminal prosecution, on the other hand, almost always has to arise out of the violation of some statute. Basically, if you do something "bad," a judge can't convict you unless he can point specifically to some law that you broke, and each element of the crime has to be proven beyond a reasonable doubt. This is also different than in civil cases, where you win if the court determines that "a preponderance of the evidence" weighs in your favor...basically meaning whoever makes the stronger case will win between the plaintiff and defendant. There is no initial presumption in favor of the plaintiff or defendant, unlike in criminal cases (where the presumption is in favor of the defendant).
Now, these days there are actually a lot of civil statutes in the US (I don't think so in England) that govern things like standards of care, legal duties, etc. that relate to civil liability. For example, doctors have to inform their patients about alternative options when they recommend a particular course of treatment, and hosts may have a duty to exercise reasonable care in ensuring the safety of invitees. If a doctor or host fails to meet this burden, they will be liable if someone brings a civil action. However, there is no "automatic prosecution" or punishment like there would be if someone violates the criminal code.
As an example: If I use a big cut-out of Michael Jordan to advertise my line of shoes in my little shoe store (without his permission of course), and a policeman walks in and asks me if I have MJ's permission to use his likeness, and I say no, the policeman won't do anything. I am not "breaking any law" in the conventional sense, although I am exposing myself to civil liability. However, if MJ files a civil suit against me, he may request monetary damages and can also request an injunction that would say I can't use the cut-out of him. If I fail to remove the cut-out (this could be contempt of court, which could actually be civil or criminal), THEN the policeman could remove it by force.
So, back to the Korean adultery laws. Basically, before, if a policeman walked in on you and you were committing adultery, he could have arrested you. Now he can't. However, the spouse could still sue you for (I'm guessing) tort damages, and it could serve as grounds for cause if he/she were to file for divorce.
Saying something "violates" the law has a clear meaning in criminal law, but due to the somewhat murky waters of civil law particularly in common law jurisdictions, it doesn't make as much sense to say with regard to civil actions. I'd say the most appropriate way to phrase it would be that it is grounds for a "cause of action" in a civil trial.
To answer your initial question why that language is used, I'd say that whoever was writing that was probably doing so for a general audience and wasn't worried about semantics. I'm sure some people (including legal experts) think it's okay to talk about "violating" civil law, but IMHO it's not quite the appropriate terminology. |
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nate1983
Joined: 30 Mar 2008
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Posted: Fri Feb 27, 2015 4:16 pm Post subject: |
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Here's a law firm's explanation of civil and criminal law. Notice that it refers to criminal law as that which governs violations of the law, which is what I would say is the mainstream view in the legal community when we think about "breaking the law." If you think that professors or "legal experts" never get a little sloppy with semantics, you should have seen my corporations casebook which was all over the place. Some of my professors had clerked on the Supreme Court, but they certainly weren't immune from the occasional mistake.
Criminal actions are complaints brought by the state or federal government against parties accused of violating a law. Civil actions are defined as any non-criminal actions and involve private rights and remedies. Some examples include torts (such as negligence), contracts, real estate issues, wills and trusts, and family law matters. A primary and easily recognizable difference between civil and criminal actions is the party who is permitted to bring the action. Only the state or federal government may prosecute criminal actions. When they prosecute a criminal action they are acting on behalf of the citizens of the state or the United States. Both private citizens and the state and federal government can bring civil actions. When the state or federal government brings a civil action, it is acting on behalf of the citizens of the state or United States and when private citizens file civil actions, they are acting on their own behalf. The terminology used to describe the parties in civil and criminal actions also differs. In criminal cases the party pursuing the action is called the state or the prosecutor and the party charged with the crime is the defendant, or, the accused. In civil actions, the party pursuing the action is called the plaintiff and the party responding to the action is called the defendant.
Another difference between criminal and civil actions is the societal purpose or justification for the action. The criminal law system is the state’s primary instrument for preventing people from intentionally or recklessly harming one another. Its general purpose is to punish individuals found guilty of violating the law. |
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Fox

Joined: 04 Mar 2009
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Posted: Fri Feb 27, 2015 5:23 pm Post subject: |
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Hmm. On the one hand I think you are being a bit pedantic here, particularly since one of the "for general audiences" links I provided was to a law textbook written by a university professor on the subject. On the other hand, I kind of like pedantry, I feel like you have a pretty decent grasp of the topic, and common usage does seem more in line with your view on the matter, so I think I am inclined to accept your general position. Thanks. |
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nate1983
Joined: 30 Mar 2008
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Posted: Fri Feb 27, 2015 5:38 pm Post subject: |
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Fox wrote: |
Hmm. On the one hand I think you are being a bit pedantic here, particularly since one of the "for general audiences" links I provided was to a law textbook written by a university professor on the subject. On the other hand, I kind of like pedantry, I feel like you have a pretty decent grasp of the topic, and common usage does seem more in line with your view on the matter, so I think I am inclined to accept your general position. Thanks. |
That's pretty fair, and frankly (despite my admitted pedantry) I'm not sure there's a "right" answer, since these days there's actually more a continuum of types of law than just two distinct categories. You have criminal codes on the one end, and judge-made civil law on the other, but then you have administrative/tax/regulatory law and statutes governing civil liability falling somewhere in the middle. |
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rainman3277
Joined: 13 Sep 2009
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Posted: Mon Mar 02, 2015 4:09 pm Post subject: Re: Adultery is now legal |
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Its a win, not a big win. For every law that gets repealed in society, there are 3 others enacted that step on civil liberties |
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