In both civil and criminal action, the basic progress through the judicial system is the same. The pleadings or formal allegations of the parties regarding of 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. Three primary differences between civil and criminal actions are: (1) the parties who may bring the actions, (2) the societal purpose for the action, (3) the procedural rules and requirements for prosecuting civil and criminal action.
Only the state or federal government may prosecute criminal actions. When they prosecute a criminal action they are acting on behalf of the citizen of the state. In criminal cases the party pursuing the action is called the state or the prosecutor and the party charged with the crimes is the defendant, or, the accused. In contrast, both private citizens and the state and federal government can bring the action. When the state and a federal government brings a civil action actions, it is acting on behalf of the citizens of the state and when private citizens file civil action, they are acting on their behalf. In civil actions the party perusing the action is called the plaintiff and the party responding to the action is called the defendant.
The High Courts of all States and the Supreme Court have authority on both civil and criminal cases. Below the high court the hierarchy of criminal and civil courts is as follows
|Sessions Court||District Court|
|Additional Sessions Court||Civil Judge Senior Division|
|Chief Judicial Magistrates||Civil Judge Junior Division|
|Magistrates||Chief Metropolitan Magistrates|
Major Differences between Civil Law and Criminal Law1
|Civil Law||Issue||Criminal Law|
|Deals with rights and duties between individuals||Nature||Deals with offenses against society as a|
wholeIndividualParty bringing law suitThe StateCausing harm to another individualWrongful actViolating a statute that prohibits some type
of activityDamages to compensate for the loss sustainedRemedy soughtPunishment, deterrence, rehabilitation
preserve the peace“Preponderance of the evidence”
The plaintiff Compensation for wrongful act Fines, incarceration, capital punishment Convection Standard [burden] of Proof Who initiates the legal Action Reason for the legal action Major sanctions available Result of trial“Beyond a reasonable doubt” The government on behalf of the People.Punishment, deterrence, Rehabilitation Varies equities remedies or monetaryDamages
1See WEST’S BUSINESS LAW, 1.Gaylord A. Jentz 2. Roger Leroy Miller 3. Frank B.Cross, p 99, 1st para
2. WHO INITIAES THE CASE
In a criminal case, society initiates the legal actions because the society rather than the individual victim is the primary victim of the wrong. The commission of the carmine makes all people, not just the victim of the crime, feel less safe and secure. As the society has more resources than any of its individual members, a person changed with a serious crime has a right to legal assistance paid foe by society if that person is financially unable to afford to hire an attorney.
In a civil case, the lawsuit is brought by an individual person who claims that his or her right have been infringed, and the individual selects and pays for legal representation. The society is not a party to lawsuits between to or more of it members. Frequently, the little of a case tells wheatear it involves a criminal or civil action. A criminal case brought by society, it titled people v. Smith, United states v. Smith, or Michigan v. Smith. Although most of the cases in which society is the accuser are criminal cases, sometimes they are not. A civil case, or the other hand, it titled Jones v. Smith because individuals or organizations are parties on the both side.2
The purpose of a criminal case is to determine if the accused committed a criminal act and if the court must therefore impose some punishment. A person convicted of a crime might face a fine or temporary removal from society in jail or person. The example’s of a criminal punishment is also intendment to deter would –be criminals from committing similar acts. The punishment may even rehabilitate the criminal so that he or she is less likely to commit future wrong against the society.3
In contrast the purpose of a civil lawsuit is to determine if a wrong has been committed and, if so, to require the wrong doer to compensate the injured party.
2.See Legal & RegulataryEnvironment of e- Business, Jhon W. Babby & F. William, p 9, 4th para
3See Legal & RegulataryEnvironment of e- Business, Jhon W. Babby & F. William, p 10,1st para
The emphasis is on compensating the injured party, not on punishing the wrongdoer, If Laura breaks a contractual agreement that she made with David, and he may bring a civil lawsuit against her. Generally Daivid seek an award of damage as a remedy. He would want the court to order Laura to pay him a sum equal to the money he lost when she did not fulfil her part of the agreement.
4. THE NATURE OF THE CRIME:
Crimes can be distinguished from other wrongful acts in that they are offenses against society as a whole. Criminal defendants are prosecuted by a public official, not by their victims in additions; those who have committed crimes are punished. Those who are found guilty of committing crimes are punished normally by imprisonment and or a fine, in accordance with the criminal statutes.4 Classification of crimes based upon the nature of the wrongful conduct: 1. Crimes against property
2. Crimes against a person
3. Crimes against a government.
Tort remedies for civil wrongs are generally intended to compensate the injured to (except when damages of a punitive nature are assessed), but criminal law directly concerned with punishing (and, ideally, rehabilitating) the wrong doer.5
4See Legal & RegulataryEnvironment of e- Business, Jhon W. Babby & F. William, p 10, 3rd para
5See WEST’S BUSINESS LAW, 1.Gaylord A. Jentz 2. Roger Leroy Miller 3. Frank B.Cross, p 92,4th para
5. NATIVE OF PROOF:
In every trial be it criminal or civil, there exists a burden of proof on one party to prove to the court that the other party is guilty of an offense. The burden of proof usually lies on the party who substantially asserts the affirmative of the issue which means basically that whoever invokes the aid of the law should be the first to prove his case .The party on whom the onus of proof lies must establish a prima facie case. This party cannot on failure to do so make use of the weakness of the adversary’s case. The part on which the onus lies must succeed by the strength of his right and clearness of proof.
Burden of Proof can be further explained as –
a) Persuasive Burden Also known as Legal Burden, this is Burden of Proof as a matter of law. It involves the proving of preponderance of evidence or proving the case beyond reasonable doubt In the case of criminal cases the persuasive burden is always on the prosecution .In civil cases however the Burden of Proof rests upon that party, be it the plaintiff or the defendant who substantially assents the affirmativeness of the issue. This is a question of law and is fixed at the beginning of the case The Persuasive Burden does not shift during the course of the trial in both civil and criminal cases.
b) Evidential Burden– Involves a sense of adducing evidence. This can keep changing from one party to another during the course of the trial in both civil and criminal cases. This is satisfied by any species of evidence sufficient to raise prima facie case.
c) Burden of establishing admissibility of evidence: Now that the meaning of burden of proof has been explained it can be examined in depth with regard to civil and criminal cases.In criminal litigation, the burden of proof is always on the state. The state must prove that the defendant is guilty. The defendant is assumed to be innocent; the defendant needs to prove nothing. (There are exceptions. If the defendant wishes to claim that he/she is insane, and therefore not guilty, the defendant bears the burden of proving his/her insanity).
The state must prove that the defendant satisfied each element of the statutory definition of the crime, and the defendant’s participation, “beyond a reasonable doubt.” It is difficult to put a valid numerical value on the probability that a guilty person really committed the crime, but legal authorities who do assign a numerical value generally say “at least 98% or 99%” certainty of guilt.
In civil litigation, the burden of proof is initially on the plaintiff. However, there are a number of technical situations in which the burden shifts to the defendant. For example, when the plaintiff has made a prima facie case, the burden shifts to the defendant to refute or rebut the plaintiff’s evidence. In civil litigation, the plaintiff wins if the preponderance of the evidence favors the plaintiff. For example, if the jury believes that there is more than a 50% probability that the defendant was negligent in causing the plaintiff’s injury; the plaintiff wins.
The ideal case which would bring out the differences in the burden of proof in a civil and criminal trial is the O.J Simpson trial in the U.S.A. Orenthal James Simpson, ex–NFL football star (turned-NBC-sports-announcer) was tried for the murder of his wife, Nicole Brown Simpson and Ronald Lyle Goldman.
It can thus clearly be seen the difference in the burden of proof in civil and criminal cases and that the difference is such that a person may be acquitted in a criminal case due to the case not being proved beyond a reasonable doubt, but may be held liable in a civil case with the same evidences etc. being given as preponderance of evidence could be proved
6. POWER OF THE CIVIL COURT:
There are five grads of subordinate civil courts in Bangladesh established under the provisions of the civil courts Acts 1887. These are the court of Assistant Judges, Senior Assistant Judges (formally Munsifs), Joint District Judges (formally subordinate judges), Additional District Judges (formally additional judges) and the District Judges.6
6 See Administration of Justice in Bangladesh, Kazi Ebadul Haque, p 36, 2nd line
Above mentioned five grade courts of civil courts have been established to decide dispute of civil nature such as right to property or status brought before those to courts by filing plaint or petition by the affected person. Civil courts while deciding any question regarding succession, inheritance, marriage castle or any religious usages or institution apply the Mohammedan Law in cases where the parties are Mohammedans Law in cases where the parties are Hindus except so far a such laws have been altered or abolished by any enactment made by the legislature. Civil court may pass a decree for recovery of money, procession of property, declaration of title to property or status, specific performance of contract, injunction and other appropriate relief. Civil court may also grant interim relief by granting temporary injunction, appointing receiver of property, attachment of property, arrest of the defendant and other appropriate orders in the interest of justice.7 Civil court has also power of executing the decree pass by it by compiling the judgement debtor to comply with the direction given in the decree if necessary by use of force and even by putting him in the in the civil prison. Applies lies against judgement, decree or some orders passed be a subordinate civil court to the superior civil court. Where no appeal lies against any judgement, decree or order revision lies to the High Court Division from the same passed by a court subordinate to that Division.8
7See Administration of Justice in Bangladesh, Kazi Ebadul Haque, p 37, 2nd para, p 38, 1st para
8 Constitution of Bangladesh, Article 114; Civil Courts Act 1887,Ss. 18-22&37; Code of Civil procedure 1908 Ss. 96,104,115 and Order 43 rule 1; Rahman, Rafique, Civil Litigation in Bangladesh (Dhaka,1996),pp34-40
7. POWER OF THE CRIMINAL COURT:
The High Court Division may pass any sentences authorized by law. Sessions Judge or Additional Sessions Judge or any other court or tribunal presided over by such a judicial officer may pass any sentence authorized by law but sentence of death passed by any such Judge or Tribunal is subject to conformation by the High Court Division. An Assistance Sessions Judge may ordinarily pass a sentence of imprisonment up to ten years. But when an Assistance Sessions Judge is deemed to have been appointed Additional Sessions Judge he may pass sentence up to imprisonment for life. Metropolitan Magistrates and Magistrates of first class may pass any sentence of imprisonment up to five years including solitary confinement up to three years including solitary confinement and fine up to five thousand taka and Magistrates of the third class, imprisonment up to two years and fine up to two thousands taka only. Specially empowered Magistrate may pass sentence of imprisonment up to seven years. High court Division, Court of Session and Magistrate repeatedly are empowered to pass the sentences while acting as Tribunal, Judge or Court Respectively.9
Although criminal and civil cases are treated very differently, many people often fail to recognize that the same conduct can result in both criminal and civil liabilities.10
One act may both criminally and civilly wrongful. The state is a party in the criminal prosecution; the injured party is the plaintiff in the civil action based on tort. If the accused is found guilty of the crime beyond a reasonable doubt, he or she will be punished. If a defendant is found, by a preponderance of evidence to have committed a tort, he or she required to compensate the plaintiff, who was injured by a tortuous conduct.
See Administration of Justice in Bangladesh, Kazi Ebadul Haque, pp 41-42
10See Cases Legal and Regulatory Environment, Barbara E. Behr, p 63, 3rd Para
1. Hoque, Ebaadul.K(2003) Administration of Justice in Bangladesh: Asiatic Society of Bangladesh
2. Jentz, A and Mille, Roger.L and Cross, Frank. B (1990) WEST’S BUSINESS LAW: Alternative Uce Comprehensive, 4th edition
3. Behr, E. B (1992) Cases legal and Regulatory Environment.5th edition, Department of Finance and Business Law Bloomsburg University, Pennsylvania
4. Kolasa, J. B (1984) Legal Environment of Business
5. Zahirul Huq(2010) Law and Practice of Criminal procedure,12th edition, advocate, Supreme court
1) Anonymous, “Civil and Criminal Trials”, Asian Human Rights Commission Website, <http://cambodia.ahrchk.net/mainfile.php/19980314/69/>
2) Anonymous, “Major Differences between Civil Law and Criminal Law” <http://www.waukesha.tec.wi.us/busocc/law/civcrm.html>,
3) Ronald B. Sandler “Differences between Civil and Criminal Law in the USA”, <http://www.rbs2.com/cc.htm#anchor000001>