Гражданский кодекс Наполеона: история и влияние

French civil code established in 1804

The Napoleonic Code , officially the Civil Code of the French (; simply referred to as Code civil), is the French civil code established during the French Consulate in 1804 and still in force in France, although heavily and frequently amended since its inception. Napoleon himself was not involved in the drafting of the Code, as it was drafted by a commission of four eminent jurists and entered into force on 21 March 1804. The code, with its stress on clearly written and accessible law, was a major milestone in the abolition of the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of the few documents that have influenced the whole world. The Napoleonic Code was not the first legal code to be established in a European country with a civil law legal system; it was preceded by the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the Allgemeines Landrecht (Prussia, 1794), and the West Galician Code (Galicia, then part of Austria, 1797). It was, however, the first modern legal code to be adopted with a pan European scope, and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars. while in Latin America the Spanish and Portuguese had established their own versions of the civil code.

Before the Napoleonic Code, France did not have a single set of laws; law consisted mainly of local customs, sometimes officially compiled in "custumals" (coutumes), notably the Custom of Paris. There were also exemptions, privileges, and special charters granted by kings or other feudal lords. With the Revolution, the last vestiges of feudalism were abolished. Specifically, as to civil law, the many different bodies of law used in different parts of France were to be replaced by a single legal code. The Constituent Assembly on 5 October 1790 voted for a codification of French laws, the Constitution of 1791 promised one, and the National Assembly adopted a unanimous resolution on 4 September 1791 providing that "there shall be a code of civil laws common for the entire realm." However, it was the National Convention in 1793 which established a special commission headed by Jean Jacques Régis de Cambacérès to oversee the drafting process. His drafts of 1793 (for which Cambacérès had been given a one month deadline), 1794, and 1796 were all rejected by a National Convention and the French Directory of the time was more preoccupied with the turmoil resulting from various wars and strife with other European powers. The first draft contained 719 articles and was very revolutionary, but was rejected for being too technical and criticised for not being radical or philosophical enough. The second, with only 297 articles, was rejected for being too brief and was criticised for being a mere manual of morals. The third, expanded to 1,104 articles, was presented under the conservative Directory regime, but never even came up for discussion. Another commission, established in December 1799 established a fourth outline drafted in part by (1754–1813). Jacqueminot's draft, the so called loi Jacqueminot, dealt almost exclusively with persons and emphasised the need to reform the divorce laws, to strengthen parental authority and increase the testator's freedom to dispose of the free portion of his estate. It was rejected.

The preliminary article of the code established certain important provisions regarding the rule of law. Laws could be applied only if they had been duly promulgated, and then only if they had previously been officially published (including provisions for publishing delays, given the means of communication available at the time). In brief, no secret laws were authorised. It prohibited ex post facto laws (i. e. laws that apply to events that occurred before their introduction). The code also prohibited judges from refusing to do justice on grounds of the insufficiency of the law, thereby encouraging them to interpret the law. On the other hand, it also prohibited judges from making general judgements of a legislative nature (see above). With regard to family, the code established the supremacy of the husband over his wife and children, the status quo in Europe at the time. Women had even fewer rights than children. Divorce by mutual consent was abolished in 1804.

The draft Military Code was presented to Napoleon by the special commission headed by Pierre Daru in June 1805; however, as the War of the Third Coalition progressed, the code was put aside and never implemented. In 1791, Louis Michel le Peletier de Saint Fargeau presented a new criminal code to the National Constituent Assembly. He explained that it outlawed only "true crimes", and not "phony offences created by superstition, feudalism, the tax system, and [royal] despotism". He did not list the crimes "created by superstition". The new penal code did not mention blasphemy, heresy, sacrilege, witchcraft, incest, or homosexuality, which led to these former offences being swiftly decriminalised. In 1810, a new criminal code was issued under Napoleon. As with the Penal Code of 1791, it did not contain provisions for religious crimes, incest, or homosexuality. After an overhaul of the entire legal system, the new code of civil procedure was adopted in 1806. The commercial code was adopted in 1807. The kernel of the commercial code is the Book III, "Of The Different Modes of Acquiring Property", of the Napoleonic Code, which sets out norms for contracts and transactions. Code d'instruction: In 1808, the code d'instruction criminelle was published, laying out criminal procedure. The parlement system from before the Revolution, had been much abused, and the criminal courts established by the Revolution were complex and ineffective, subject to many local pressures. The genesis of this code resulted in much debate and the basis of the modern inquisitorial system of criminal courts in France and many civil law countries. It has significantly changed since, especially with regard to the rights of the defendant. The French Revolution's Declaration of the Rights of Man and of the Citizen enunciated the presumption of innocence until found guilty. Concerned by the possibility of arbitrary arrest and detention, or excessive remand, Napoleon remarked that care should be taken to preserve personal freedoms, especially before the Imperial Court: "these courts would have a great strength, they should be prohibited from abusing this situation against weak citizens without connections." However, remand still was usual for defendants suspected of serious crimes such as murder. The possibility of lengthy remand periods was one criticism, particularly voiced in common law countries, of the Napoleonic Code and its de facto presumption of guilt. Another reason was the combination of magistrate and prosecutor into a single role. However, with the work of the juge d'instruction accomplished, the trial itself did not have the same de jure presumption of guilt; for instance, the juror's oath explicitly required jurors not betray the interests of the defendants or ignore their defence. The rules governing court proceedings gave significant power to the prosecution; however, criminal justice in European countries in those days tended to repression. For instance, it was only in 1836 that prisoners charged with a felony were given a formal right to counsel in England. In comparison, article 294 of the Napoleonic Code of Criminal Procedure allowed the defendant access to a lawyer before a Cour d'assises, and mandated the court to appoint a lawyer for the defendants who did not have one. (Failing to do so nullified the proceedings.) Whether or not the Cour d'assises, which judges severe crimes, should operate with a jury was a topic of considerable controversy. Napoleon supported jury trials (or petit jury), and they were finally adopted. On the other hand, Napoleon opposed the indictment jury ("grand jury" of common law countries), and preferred to assign this task to the criminal division of the Court of Appeals. Special courts were created to judge criminals who might intimidate the jury.

Even though the Napoleonic Code was not the first civil code and did not represent the whole of his empire, it was one of the most influential. It was adopted in many countries occupied by the French during the Napoleonic Wars. In the German regions on the west bank of the Rhine (Rhenish Palatinate and Prussian Rhine Province), the former Duchy of Berg and the Grand Duchy of Baden, the Napoleonic Code was influential until the introduction of the Bürgerliches Gesetzbuch in 1900 as the first common civil code for the entire German Empire. A number of factors have been shown by Arvind and Stirton to have had a determinative role in the decision by the German states to receive the code, including territorial concerns, Napoleonic control and influence, the strength of central state institutions, a feudal economy and society, rule by liberal (enlightened despotic) rulers, nativism among the governing elites, and popular anti French sentiment. The term "Napoleonic Code" is also used to refer to legal codes of other jurisdictions that are influenced by the French Code Napoléon, especially the Civil Code of Lower Canada (replaced in 1994 by the Civil Code of Quebec), mainly derived from the Coutume de Paris, which the British continued to use in Canada following the 1763 Treaty of Paris. However, most of the laws in Latin American countries are not heavily influenced on the Napoleonic Code, as the Spanish and Portuguese versions of the civil code formed the foundation of the Latin American legal systems e. g. the Chilean, Mexican, and Puerto Rican civil codes. In Mauritius, the Civil Code, which originates from the Napoleonic Code, represents an important primary source of law and provides for the rights of individuals, matrimonial regimes, contract law, and property law, amongst others. The French Civil Code was extended to Mauritius under the title Code Napoléon by decree of Charles Mathieu Isidore Decaen, Capitaine General, on 21 April 1808. The Code was modified and embodied in Chapter 179 of the Revised Laws of Mauritius 1945, edited by Sir Charlton Lane, former Chief Justice of Mauritius. The 1808 decree was repealed by Act 9 of 1983, but the Revision of Laws Act which was enacted in 1974, made provision, in section 7, for the publication of the Code under the title "Code Civil Mauricien." In the United States, the legal system is largely based on English common law. But the state of Louisiana is unique in having a strong influence from French and Spanish legal traditions on its civil code. Spanish and French colonial forces quarreled over Louisiana during most of the 1700s, with Spain ultimately ceding the territory to France in 1800, which in turn sold the territory to the United States in 1803. The 10th Amendment to the U. S. Constitution grants states control of laws not specifically given to the federal government, so Louisiana's legal system retains many French elements. Examples of the practical legal differences between Louisiana and the other states include the bar exam and legal standards of practice for attorneys in Louisiana being significantly different from other states; Louisiana is the only U. S. state to practice forced inheritance of an estate; additionally, some of Louisiana's laws clash with the Uniform Commercial Code practiced by the other 49 states.