Incidentally, none of the characteristics you listed are actually true.
A) In the Netherlands and Switzerland the articles of the law don't always mention if they allow deviation by agreement. In those cases the assumption is: No, unless the legislative process documented that it was intended to be. I haven't checked but I recall the same is true for France and Germany.
B) The refere-legislatif (pre-judicical question) first appears in the Eastern Roman Civil Law (Byzantium) where Emperors use it to guide the interpretation of their law. But nothing about Civil Law systems presuposses it. EU Law does use it. But courts in the Netherlands don't. Instead, they are required to adjudicate as best they can. And if they screw up, a higher court can be used for appeal.
C) Appeals, these also exist in Common Law and many other legal systems. This doesn't require elaboration.
Your example concerning drunk-driving is troubling, because that would usually be treated as a misdemeanor or a crime. Not as part of a Civil Code violation. You could claim damages under the Civil Code, but then you are asserting a violation of the 'Public Order' Code, which you then have to prove.
The 'Public Order' Code is itself subject to strict Human Rights codes from various sources. Both international as well as EU Charter of Rights. Which translate into specialized courts and stricter rules of evidence and defense. Guild by proximity to a crime is an example of a scenario that this prevents. Whereas the Civil Law can (and sometimes does) assume causation based on balance of probabilities, due to proximity and lack of counter statements refuting said probabilities.
> In the Netherlands and Switzerland the articles of the law don't always mention if they allow deviation by agreement. In those cases the assumption is: No, unless the legislative process documented that it was intended to be.
That's literally what I wrote. Why are you telling me that I'm wrong, when you're restating my point.
> Your example concerning drunk-driving is troubling, because that would usually be treated as a misdemeanor or a crime. Not as part of a Civil Code violation. You could claim damages under the Civil Code, but then you are asserting a violation of the 'Public Order' Code, which you then have to prove.
A) In the Netherlands and Switzerland the articles of the law don't always mention if they allow deviation by agreement. In those cases the assumption is: No, unless the legislative process documented that it was intended to be. I haven't checked but I recall the same is true for France and Germany.
B) The refere-legislatif (pre-judicical question) first appears in the Eastern Roman Civil Law (Byzantium) where Emperors use it to guide the interpretation of their law. But nothing about Civil Law systems presuposses it. EU Law does use it. But courts in the Netherlands don't. Instead, they are required to adjudicate as best they can. And if they screw up, a higher court can be used for appeal.
C) Appeals, these also exist in Common Law and many other legal systems. This doesn't require elaboration.
Your example concerning drunk-driving is troubling, because that would usually be treated as a misdemeanor or a crime. Not as part of a Civil Code violation. You could claim damages under the Civil Code, but then you are asserting a violation of the 'Public Order' Code, which you then have to prove.
The 'Public Order' Code is itself subject to strict Human Rights codes from various sources. Both international as well as EU Charter of Rights. Which translate into specialized courts and stricter rules of evidence and defense. Guild by proximity to a crime is an example of a scenario that this prevents. Whereas the Civil Law can (and sometimes does) assume causation based on balance of probabilities, due to proximity and lack of counter statements refuting said probabilities.