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CRIMINAL VS. CIVIL LAW
The failure to understand the inherent differences between criminal and civil law
often leads to public confusion and frustration when police action is requested to
deal with civil problems.
Criminal law is relatively straight forward and is concerned with actions which are
dangerous or harmful to society as a whole. Criminal actions are complaints
brought against parties accused of violating a law. The general purpose of the
criminal law system is to punish individuals found guilty of violating the law.
In contrast, civil laws are rules and regulations which govern transactions and
grievances between individual citizens. Civil actions are defined as any noncriminal
actions and involve private rights and remedies. Some examples of civil
actions are breach of contract, divorce, child custody and/or visitation, and real
estate matters. The purpose of a civil proceeding is generally not to punish a
defendant, but to compensate the wronged party.
Three primary differences between civil and criminal actions are: (1) the parties
who may bring the actions, (2) the societal purposes for the actions, and (3) the
procedural rules and requirements for prosecuting criminal and civil actions.
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. 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 contrast, 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. In civil
actions, the party pursuing the action is called the plaintiff and the party
responding to the action is called the defendant.
In both civil and criminal actions, the basic progress through the judicial system is
the same. The pleadings or formal allegations of the parties regarding their
claims are filed. The parties undertake discovery to obtain facts and information
about the case. A trial is held at which the evidence is presented, witnesses are
heard, and judgment is rendered.
Page 2
There are, however, many significant differences in the rules and procedures
governing the progress of actions through the judicial system as well. For
instance, in a civil proceeding, the action is set in motion when the complaint is
filed with the clerk of court and depending on the jurisdiction, served on the
defendant with a summons. In a criminal action, however, the process is more
complex. After the defendant is arrested and the police officer drafts the
complaint, the prosecutor conducts a preliminary review of the arrest and
complaint to insure that there is probable cause to believe that the defendant
committed the crimes alleged in the complaint. If the prosecutor determines the
complaint is adequate to establish probable cause, the complaint is filed.
The courts serve as the venue wherein disputes are settled and justice is
administered. While it may anger and frustrate citizens who request an officer to
respond to, for example, a perceived violation of a child visitation order, an officer
can not force one parent to turn the child(ren) involved over to the other parent.
Rather, the parties involved will be advised to contact their respective attorneys
and to resolve the issue in civil court.
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Legal FAQ
This product FAQ was reviewed on 18:46, 15 July 2008 (UTC) .
Contents
1 General
1.1 Q. Why have a written contract?
1.2 Q. What does "Jurisdiction" mean?
1.3 Q. What is the "Governing Law"?
1.4 Q. What is meant by Joint and Several liability?
1.5 Q. Why should I use mediation or arbitration instead of going to court?
1.6 Q. Isn't it true that documents have to be drafted by a licensed lawyer?
1.7 Q. Do I need to print my document on legal size paper?
2 Witnessing a Document
2.1 Q. I had to Fax my document to the other party in order for them to sign it. He then faxed his copy back to me. Are faxed copies and faxed signatures legal?
2.2 Q. What is a notary public?
2.3 Q. Who can be a witness to a document? Is a spouse or other family member acceptable to act as a witness?
2.4 Q. Does my document need a witness, or a notary, or is it OK without a witness?
3 Executing a Document
3.1 Q. What does it mean to "execute" a document?
3.2 Q. What is the difference between an effective date and an execution date?
3.3 Q. Where one party to a contract is a company, there is a section in the signing area that looks like this: "Per: _______________ (Seal)". What does this mean?
4 Serving a Document
4.1 Q. What does "serving a document" mean?
4.2 Q. What is proof of service?
4.3 Q. If I deliver the document myself, how do I prove in court that the party received it?
4.4 Q. Can I serve a document by certified or registered mail?
General
Q. Why have a written contract?
A. Written agreements provide documentation or evidence of each party's expectations. A written contract allows each party to clearly define all terms and conditions. Having the contract in writing is proof of what was agreed to and may help prevent misunderstandings later on.
Q. What does "Jurisdiction" mean?
A. A jurisdiction is a place that has its own laws. It is a territory with boundaries, such as a state or a province. For example, California is a jurisdiction in the United States, Ontario is a jurisdiction in Canada, and Scotland is a jurisdiction in the United Kingdom.
Q. What is the "Governing Law"?
A. A legal document is governed by the law of the jurisdiction where the actions of the parties will be performed. Normally, this is the place in which the property or service is located or performed. In some circumstances the parties will need to select between several applicable jurisdictions. Where legislation is similar the choice of jurisdiction may not make a difference but in some cases there may be advantages to choosing one jurisdiction over another. If you are unsure of how the law can best be applied in your circumstance or need specific advice then we recommend that you contact a local lawyer.
Q. What is meant by Joint and Several liability?
A. This means that all liable parties are equally and personally liable for the obligations of a judgment, loan, debt or other liabilities. Being Severally Liable means that, if one liable party is unable to pay their portion of an obligation then the remaining liable parties will be responsible for their own portion as well as this unpaid portion.
Q. Why should I use mediation or arbitration instead of going to court?
A. Mediation and arbitration are superior processes when there is a long term relationship involved and the survival of the relationship is desirable. They focus on creating a mutually agreeable solution to a problem instead of the adversarial environment of a court confrontation. In addition to this, the process can be less expensive, and takes a lot less time than the court process.
Q. Isn't it true that documents have to be drafted by a licensed lawyer?
A. There is no legal requirement for any document to be drafted by a lawyer. A person can draft their own documents. A person must be a lawyer or attorney licensed to practice in your jurisdiction if that person is practicing law (either advising you on your specific legal rights in regards to a contract OR drafting a contract for your specific fact situation). LawDepot.com does not provide advice specific to any individual’s situation. We provide general legal information. We also do not draft or tailor the contract for the person's specific fact situation. The individual customer must decide for themselves which contract best suits their own needs and must decide for themselves what information to provide on the various question pages in preparing their own document. While we make it easy for a customer to know how to complete the questions and to make informed decisions, it is the customer that makes those choices. Some of our customers have saved on legal fees by drafting their document at LawDepot.com then taking that draft to their lawyer for minor tweeks to the customer's fact situation.
Q. Do I need to print my document on legal size paper?
A. In almost all cases there is no requirement for contracts to be printed on legal size paper. Where a document needs to be registered with the records office in a specific jurisdiction and where there are special printing requirements, LawDepot research staff have endeavored to ensure that when you use LawDepot software as directed your document will print according to the requirements of the jurisdiction you have selected. If you are unsure you should contact the local records office where you will register your document for their specific requirements. If you are still unsure then you should contact an attorney licensed in your jurisdiction.
Witnessing a Document
Q. I had to Fax my document to the other party in order for them to sign it. He then faxed his copy back to me. Are faxed copies and faxed signatures legal?
A. Many of our documents can be executed in counterparts and this will often be included as a clause in the agreement. This means that each party can sign a different copy of the document but both signature pages would be put together with one version of the contract. If the contract states that facsimile signatures are acceptable then you could fax the facsimile contract and signatures but also send the original for signing via mail or courier. Where there is no provision in the document authorizing facsimile signatures then you should contact an attorney in your jurisdiction to determine the laws affecting facsimile signatures and your specific document.
Q. What is a notary public?
A. A Notary Public is a state-appointed official who is authorized to authenticate certain legal documents, such as declarations, acknowledgments, deeds, mortgages, and other contracts. Swearing or signing in front of a Notary Public is better evidence that the document or contract was signed by that person.
Q. Who can be a witness to a document? Is a spouse or other family member acceptable to act as a witness?
A. Generally the person you choose to witness a document should have no financial or other interest in an agreement. A neutral third party is the best choice. A neutral third party is someone not related to either party and who does not benefit from the contract. Ideally a witness will observe the relevant party or parties signing the document and then the witness will sign the document as proof that they witnessed the parties signing. The witness is not usually required to know or understand all of the contents of the document. Note also that depending on your jurisdiction some documents such as a Will can have clearly regulated requirements regarding the number of witnesses and the nature of the relationship between the parties and the witness. Some jurisdictions disallow witnesses that are mentioned in your will, either as beneficiary or executor/executrix. The witnesses must be of legal age in your jurisdiction and they must be mentally capable of managing their property and making their own decisions. You should contact a local lawyer or review local statutes if you have any questions on how to execute your document.
Q. Does my document need a witness, or a notary, or is it OK without a witness?
A. Most documents and contracts do NOT require a witness for them to be legally valid. However, some documents such as a Will can have clearly regulated requirements pertaining to witnesses. Additionally, many banks and other institutions have their own policies about signing requirements, and may refuse to accept documents that are not notarized regardless of their legal sufficiency. If you want to avoid bureaucratic hold-ups, it may be a good idea to take your document to a Notary Public or have it witnessed. You may also want to contact the institution, branch or registry where your document will be used to determine what they require.
Executing a Document
Q. What does it mean to "execute" a document?
A. When a person "executes" a document, he or she signs it with the proper "formalities". For example: If there is a legal requirement that the signature on the document be witnessed, the person executes the document by signing it in the presence of the required number of witnesses.
Q. What is the difference between an effective date and an execution date?
A. The execution date is the date that the party signs the document. The effective date is the date that the agreement becomes effective and can be a specified date other than the date the agreement was signed. If no other date is specified, the contract is effective on the execution (signing) date.
Q. Where one party to a contract is a company, there is a section in the signing area that looks like this: "Per: _______________ (Seal)". What does this mean?
A. In general, where this appears in any contract, an officer of the company would sign in the space provided and then affix the company's corporate seal.
Serving a Document
Q. What does "serving a document" mean?
A. To "serve" a document refers to the formal delivery of a document from one party to another in a manner that is legally acceptable. This may be accomplished in many ways including delivery in person, delivery by registered mail, deliver by process server, or for more serious matters delivery via a sheriff or bailiff. The person to whom a document is delivered may attempt to avoid or deny delivery of a document. It is prudent to use some method of verification of delivery.
Q. What is proof of service?
A. Proof of Service is evidence that can be introduced into court to verify that the party did in fact receive a copy of a document. Anytime a process server or court official is used to deliver a notice to a party, it is advisable that you request proof of service.
Q. If I deliver the document myself, how do I prove in court that the party received it?
A. If you deliver the document in person, you should ensure that an objective third party (a person who is unrelated to you and has no interest in the matter) witnesses the event, just in case the other party later tries to deny having received the notice. Please note that some documents must be delivered or served by an objective third party. In some jurisdictions it may be required that service is performed by a process server, Sheriff or Bailiff for certain documents.
Q. Can I serve a document by certified or registered mail?
A. Yes, but if the other party refuses to pick it up, then they may not be viewed as having received it. You are better off ensuring the notice is hand-delivered to the other party. Certified or registered mail will usually work when serving a corporation if it is sent to the registered office of the corporation. Check your local requirements.
Categories: Document FAQs - United Kingdom | Document FAQs - Australia | Document FAQs - Canada | Document FAQs - United States
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