Civil Code and Its Fundamental characteristics

1. Civil Code and Its Fundamental characteristics Ram Krishna Timalsena, PhD Executive Director, National Law College

2. Context Development of Civil Code Nature and Scope Characteristics of Civil Law New Addition and features Challenges and opportunities to implement

3. Nature and Scope of Civil Code Civil code as the constitution of the civil society Basic law in the national legal system It provides basic rights of citizens right to personality Rights of family members Various rights of property It is the symbol of national unity Pillar of democratic legal regime

4. Codification of Civil Law in New Context Codification of Nepalese Civil Law Importance of Codification Uniform Civil Code

5. Characteristics of the Nepali Civil Code Amendment, Consolidation, Repeal and New Introduction Coordination of the International standard s with the traditional values Combination of civil law and common law Drafting process and enactment

6. Governance Reform through Legal Reform Creating Democratic Institutions Maintaining Rule of Law Meeting International standard Economic development through legal reform Restructuring society through social justice Rearranging family law Consolidation, amendment and new addition in the existing system Including private international law in the domestic legal domain

7. THE PROBLEM of Civil Justice • Lord Woolf identified in our present system were that it is: • (a) too expensive in that the costs often exceed the value of the claim; • (b) too slow in bringing cases to a conclusion; • (c) too unequal: there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant; • (d) too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; • (e) incomprehensible to many litigants; • (f) too fragmented in the way it is organized since there is no one with clear overall responsibility for the administration of civil justice; and • (g) too adversarial as cases are run by the parties, not by the courts and the rules of court, all too often, are ignored by the parties and not enforced by the court.

8. Framework of the Civil Code • Preliminary • Preamble, enforcement and general nature • General principle of civil justice system • Civil Rights

9. Principles of civil justice system Ignorance of law is no excuse for breaking it Not to work against public policy Act against law is invalid or unacceptable Wrongdoer should bear the consequences Not to harass others No one should take benefit of his own fault No one should act against the interest of his dependent Everyone should accept others personality Good neighborhood to be maintained No exemption from civil liability No customs or usages will be valid that are against law Applicable to foreigners as well

10. Principles : Civil Justice (a) be just in the results it delivers; (b) be fair in the way it treats litigants; (c) offer appropriate procedures at a reasonable cost; (d) deal with cases with reasonable speed; (e) be understandable to those who use it; (f) be responsive to the needs of those who use it; (g) provide as much certainty as the nature of the particular case allows; and (h) be effective: adequately resourced and organised.

11. Law of Persons Natural Persons Legal Persons Insolvency of natural person

12. Family law Marriage/ systematic provision Effect of marriage Divorce Maternal and paternal relationship Maternal and paternal authority Guardianship Curatorship Adoption International adoption

13. Cont--- Partition Will system: Aborted efforts Succession

14. Property law General Ownership and possession Use of property Land Trust Usufruct Servitude House rent Donation and bequeath

15. Cont--- Transfer of property Pledge, mortgage, Haksafa Deed registration Transactions/ Lenden concept continued

16. Law of Contract and Liabilities Contract of various forms Law of torts/ Defective product liability

17. Private International law Mutual judicial assistance Conflict of laws Divorce taken place in foreign country is valid

18. New Introduction Presumption of death/ 80 plus five, war @ four years, accident @ 3 years Comprehensive provision of legal person and natural person New concept in insolvency Rearrangement of family law Introduction of organ donation and sex change Usufruct Guardianship

19. Cont… Servitude as a systematic legal provision Hire purchase and lease contract as special contract Introduction of law of torts and trusts Private international law Principles of civil law Status of child born out of artificial insemination Law relating to person

20. Protection of senior citizens Provision of taking care Maternal and Paternal relationship International adoption and multiple adoption Changes in family law

21. Principle of Civil Justice Lord Woolf, Access to Justice (Final Report, July 1996), identified a number of principles which the civil justice system should meet in order to ensure access to justice. The system should: • (a) be just in the results it delivers; • (b) be fair in the way it treats litigants; • (c) offer appropriate procedures at a reasonable cost; • (d) deal with cases with reasonable speed; • (e) be understandable to those who use it; • (f) be responsive to the needs of those who use it; • (g) provide as much certainty as the nature of the particular case allows; and • (h) be effective: adequately resourced and organised.

22. Civil Procedure Context of Civil justice and Civil Procedure

23. THE PROBLEMS • Lord Woolf identified in our present system were that it is: • (a) too expensive in that the costs often exceed the value of the claim; • (b) too slow in bringing cases to a conclusion; • (c) too unequal: there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant; • (d) too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; • (e) incomprehensible to many litigants; • (f) too fragmented in the way it is organised since there is no one with clear overall responsibility for the administration of civil justice; and • (g) too adversarial as cases are run by the parties, not by the courts and the rules of court, all too often, are ignored by the parties and not enforced by the court.

24. Discussions/ Suggestions The End