A Term Paper of Nepalese Legal System (Law 262) On

Impact of Major Legal System on Present Nepalese Legal

System

Submitted to
Dr. Bijaya Prasad Mishra
Associate Professor
Nepal Law Campus

Submitted by
Shreeram Phuyal
Roll No. 22, Batch No. 2078
In the partial fulfillment of the requirement of Internal assessment
for Degree of LLM (2nd Semester, Morning Shift) in Law.
Kathmandu
4 May 2023

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Introduction

Nepal accepts written law, precedent and equity, justice and good conscience as the main
sources of law. Nepalese legal system is hybrid legal system. In early time, it was
completely dominated by Hindu Philosophy. However, same text and philosophy were
codified under the order of former Prime Minister Janga Bahadur Rana after his souvenir
knowledge acquired during the visit of England and France under the entitlement of
‘Muluki Ain, 1910 BS (1954 AD)’ which was prepared with the sophisticated interaction
of religious expert. On the one hand, Nepal has also accepted different legislation as
positive law as per the civil law system. Section 32 and 52 of Evidence Act, 2031 BS
(1974 AD) and Section 7 of Special Court Act, 2059 BS (2002 AD) shows provision of
inquisitorial system in Nepal. In some PIL cases, judges have formed committee to
investigate the particular event, incident or issues as it is followed in civil law system. On
the other hand, it has also followed adversarial trial system as per the provision of
common law system. As primary sources of law, enacted laws and precedents are
followed whereas custom, legal writings, religious texts and foreign laws are frequently
accepted as secondary sources of law. Judicial review is allowed especially in the
legislative and administrative action. Upper court decision has to be followed by the
lower court as precedent which is based on common law system. Nepalese legal system
basically follows the hierarchy of court like District, High and Supreme Court. There are
also provisions of different tribunals and Special Court to deal special cases as it is found
in civil law system. To start career in legal profession, certificate of Nepal Bar Council is
required after getting graduation in law. Judges are appointed from highly experienced or
qualified personnel. However, Nepal has also the influence of socialist legal system
especially Section 32 of evidence act, 2031 mentions Burden of proving that a person is
Alive and section 52 provides for Examination-in chief and cross examination of the
expert.1 It grants power to Special court in social welfare issues and directive principles
of state. Amended national code of Nepal has also extensively covered the practices of
Hinduism especially in Marriage Chapter, Coparcener chapter, Inheritance chapter and
1
Available at https://lawcommission.gov.np/en/?cat=411, accessed on 26 April 2023

2
miscellaneous chapter of Civil Code Act 2074 BS (2017 AD). During the tenure of
Kingship, numerous practices were guided by Hindu Philosophy. Civil Code, 2074 BS
(2017 AD), Civil Procedure Code, 2074 BS (2017 AD), Penal Code, 2074 BS (2017
AD), Criminal Procedure Code, 2074 BS (2017 AD) and Sentencing Code, 2074 BS
(2017 AD) accepted common and civil legal procedure in hybrid from although they are
the codified law as per the Civil Legal System. There is speedy replacement of Hindu
indigenous provision by western and international law concept regarding the legal issues
as seen gradually in Nepal. From these observations, it can be concluded that Nepal at
present follows mixed legal system of Hindu philosophy and common legal system. In
fact, Nepalese legal system is the hybrid of all major legal system.

Common Law

The distinctive feature of common law is that it represents the law of the courts as
expressed in judicial decisions. The grounds for deciding cases are found in precedents
provided by past decisions, as contrasted to the civil law system, which is based on
statutes and prescribed texts. One of the distinguishing features of common law is that it
developed through usage rather than being imposed by codified legislation as with the
civil code system. (Legislation means laws - sometimes also called statutes - that are
made by a representative body such as a parliament. Codification is when individual laws
of a similar nature are bundled together under one new, overarching law.) Common law
developed based on the outcomes of individual court cases. Each court case provided a
basis for judging the next case of a similar nature. Over the centuries and many thousands
of court cases, this process led to a body of laws covering most aspects of society and
based on principles shared by the society in general.
 Constitutional monarchy
 Westminster model of parliament
 Recognized principle of justice
 Principle of natural justice
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 Principle of criminal justice
 Influence of western model of education system
 Rule of law
 Independent judiciary
 Judges from bar
 Government prosecution from Government Cases Act, 2049 (1992). It has been
repealed now
 Neutral roles of court and judges
 Discretionary power goes to judges
 Equality before law
 Equal protection of law
 Reason based decision
 Common law is developed by court in the support of King.
 Precedent is the main justification of common law.
 Stare decisis and ratio decedendi are basic principle of precedent.
 Judges can go beyond the existing law in the name of law, wisdom, morality and
exercises more discretionary power.
 Faster decision with application of precedent and customs.
 Common law is synonym of unwritten law and is opposed to statutory civil law.
 Common law represents adversarial trial system in investigation of crime
 Classification of law as substantial and procedural law.
 Judges are only umpire and not an investigator.
 Ownership and trust are the gift of common law.
 Establishment of certain values based on social system.
 Hierarchy of the judiciary or regular judiciary system.
 Contempt of court as a crime. (Section 17 of Administration of Justice Act, 2073)
 Right to remain silence.
 Burden of proof goes to plaintiff.

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  Benefit of doubt is granted to accused.
 Mistake of law is rejected.
 Action not prohibited by law is allowed.
 Right to appeal.
 Principle of double jeopardy.
 Law should not be retrospective.
 Crime dies with criminal.
 Government prosecution.
 Open hearing and court system.
 Appointment of judges from legal practitioner or bar.
 Jury system in criminal cases.
 More emphasis on implementation of court decision.

Impact of Common Law System in Nepalese Legal System

Legal system develops from its integration with the norms, aspects and social settings
people have adopted. The legal system of Nepal evolved from the direct influence of the
divine concept of Hindu religion. It has developed on the basis of Hindu philosophy or
religious scriptures like Shruties (Vedas) and smrities of Manu, Yagyavalkys, Narad and
Brihaspati. The Rishies (Hindu Sages) teaching Dharmasastra were the law makers who
made law after considerable deliberation and discussion among them which was accepted
by the conscience of the people. The legal system of Nepal has been developed on the
basis of codification where customs and religious texts such as Mundhum, Shrutis,
Smritis and Dharmashastras were the principal reference for Justice during the
development of Legal System from the period of Kirats to Shahs before the reception of
foreign laws. The Muluki Ain 1910 B.S was the first codified law of Nepal which was the
compilation of the religious laws, customs and usages of the existing society inspired by
the civil code of France. This proves that the legal system of Nepal was similar to civil
legal system and not common law system as codification was based on authorities. The

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legal system was fundamentally different from the common law system of England which
was developed by courts by deciding cases according to customs.2

After the political change of 2007 B.S. Nepalese legal system started to lose its
indigenous character and identity. Many foreign laws and legal system was adopted
without any research and study about the legal system. Rules and judges were borrowed;
hence Nepal is now being governed by the received rules. 3 Our legal system is presently
influenced by the concepts and techniques of Anglo-American system that is based on
common law system. Some of the events that influenced Common Law System in Nepal
after 2007 B.S. are4:

 Nepali Legal System has relied heavily on Judicial Decisions as the source of law
after the enactment of Pradhan Nyayalaya Act 2008 B.S. The doctrine of precedent
and writs system came into existence. The Constitution of Nepal followed the
tradition of recognizing the precedent. Acceptance of precedent and adversarial
system are the influences of common law system.
 Hari Prasad Pradhan has adopted the principles propounded by Indian Courts as a
persuasive source in absence of legal provision.
 Law commission was formed in 2010 B.S. (as recommended by Butch Commission)
and an Indian official was made the advisor of the Commission. Different acts were
brought into commencement on the recommendation of the commission. Civil Right
Act (2012 B.S.), Essential Goods Protection Act, Foreign Currency Control Act,
Interpretation of Statue Act (2010 B.S.) were some of the acts based on Anglo-Indian
Mode.

2
Rewati Raj Tripathee, Nepalese Legal System: A jurisprudential and comparative Appraisal, Lumbini
Prakasan, 2073, p. 225
3
Bishal Khanal, The concept Received But the Contents Ignored: A Dilemma with the legal systems of
Nepal, Nepal Law Review, Vol, 12, No, 1, 1998
4
Rewati Raman Khanal, Nepal Ko Kanuni Itihasko Ruprekha, 1st Edition, 2059, p. 536-537 cited from
Rewati Raj Tripathee, Nepalese Legal System: A jurisprudential and comparative Appraisal, Lumbini
Prakasan, 2073, p. 277-279

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 Sir Ivor Jennings was invited to prepare the draft constitution of 2015 B.S. Numerous
statutes based on adversarial trial system mushroomed after the 2015 constitution.
 The State Cases Act, 1961 A.D was the most remarkable development in respect of
adversarial system in Nepal. This act separated investigation from adjudication.
Before this, investigation in criminal cases was conducted under the supervision and
control of the court.
 On 2028 B.S. the report of the High Commission for Judicial Reform (under
chairmanship of Supreme Court Justice Bhagwati Prasad Singh) recommended for the
adoption of Anglo-American System. The commission prepared the draft of evidence
bill, which commenced as the evidence act, 2031. The act brought a fundamental
change that onus of proof lies in the plaintiff or prosecutor.
 Promulgation of Constitution of 2047 B.S. made significant effect on the
development of Anglo-American inspired Legal System in Nepal. The right to
criminal justice was guaranteed in the constitution.
 The States Cases Act, 1993 A.D. finished all the possibilities of reinvestigation on the
Court’s order and modeled the court fully as an Umpire consolidating the adversarial
system.

Legal Provision of Nepal Influenced by Common law system

1. Constitution of Nepal5
 Article 18- Right to Equality
 Article 128 (4) - All must abide by any interpretation of the Constitution
or a law made by or any legal principle laid down by the Supreme Court
in the course of trying a lawsuit. If anyone makes obstruction in the
dispensation of justice by, or disregard any order or judgment handed
down by, it or any of its subordinate courts, the Supreme Court may, in

5
Available at https://lawcommission.gov.np/en/?lsvr_document_cat=existing-law-constitution, accessed
on 28 April 2003

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 accordance with law, initiate proceedings and impose punishment for
contempt.
 Article 20- Right relating to justice.
 Right against illegal detention.
 Right to legal practitioner.
 Right to legal aid.
 Principle of double jeopardy.
 Presumption of innocence.
 Right to fair trial.
 Right against self- incrimination
 Article 126- Courts and other judicial bodies to exercise powers relating
to justice in Nepal in accordance with constitution, laws and recognized
principle of law.
 Article 133- Jurisdiction of Supreme Court.
 Any citizen of Nepal may file a petition in the Supreme Court to
have any law or any part thereof declared void on the ground of
inconsistency with the Constitution because it imposes an
unreasonable restriction on the enjoyment of any fundamental
right conferred by the Constitution or on any other ground. In such
case the Supreme Court have an extraordinary power to declare
that law to be void either ab initio or from the date of its decision
if the law appears to be so inconsistent.
 The Supreme Court have the extraordinary power to issue
necessary and appropriate orders, and writs including the writs of
habeas corpus, mandamus, certiorari, prohibition and quo
warranto to provide appropriate remedies, enforce right or settle
dispute for the enforcement of the fundamental rights conferred by
the Constitution or of any other legal right for which no other
remedy has been provided or for which the remedy even though

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 provided appears to be inadequate or ineffective or for the
settlement of any constitutional or legal question involved in any
dispute of public interest or concern.

2. Evidence Act, 20316

Burden of proof of proving an offence or claim -The burden of proof of proving

that the accused has committed the offence in a criminal case or proving the
claim in a civil case lies on the plaintiff.

National Criminal Procedure Code, 20747

Section 134- Right to appeal if the judgment or final order is not satisfactory.
Section 144- Powers of appeal hearing court to appeal, void, reverse or partially
reverse the judgment of the lower court.

Administration of Justice Act, 20738

Section 11- The Supreme Court can review its judgment.

Section12 - The Supreme Court may revise the case.
Section 17 (1), (2), (3)- The Supreme Court/High Court/District Court can initiate
proceedings against the contempt of court, if anyone makes obstacle in judicial
performance or dishonor the order or judgment of its own or the High Court or
District Court or judicial body sub-ordinate to it.

Cases related to Common law system in Nepal

6
Available at https://lawcommission.gov.np/en/?cat=411, accessed on 28 April 2023
7
Available at https://www.moljpa.gov.np/en/wp-content/uploads/2018/12/Criminal-procedure-code-
Revised.pdf, accessed on 28 April 2023
8
Available at https://lawcommission.gov.np/en/wp-content/uploads/2021/01/Administration-of-Justice-
Act-2073-2016.pdf, accessed on 28 April 2023

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 1. Keshav Raj Aryal v. Legislative Parliament9
Precedents are to be followed by the courts to maintain stability and avoid any
sorts of inconsistencies in the decision making. The principle of stare decisis
should be adopted if there is no substantial difference in the nature and character
of the case, social setting and constitutional provisions.

2. Piyush Bahadur Amatya v. Nepal Rastra Bank10

Well versed decisions made by higher courts must be binding in lower courts in
cases of similar subject matter and facts. Coordinate bench should not overrule
each other decisions. This affects the quality of certainty; rather they should
explain the reason for dissatisfaction and forward the case to bench with more
number of judges for ruling. Only exceptions for the decision to be non-binding
to the lower courts and coordinate bench is Per-incuriam and sub-silentio.

3. Munila Golcha Marwadi v. Dhanachandra Rai11

Nepalese legal system supports procedural law and precedents in equal footing as
legislation.

4. B.P. Koirala v. Magistrate of Kathmandu12

The Order inconsistent to Pradhan Nyalaya Act is void. Magistrate cannot make
law. Direct action without fulfilling the process is void.

9
NKP 2067, Decision No. 8472, available at https://nkp.gov.np/, accessed on 29 April 2023
10
NKP 2064, Decision No. 7872, available at https://nkp.gov.np/, accessed on 29 April 2023
11
NKP 2030, Decision No. 777, available at https://nkp.gov.np/, accessed on 29 April 2023
12
NKP 2016, Decision No. 24, available at https://nkp.gov.np/, accessed on 29 April 2023

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 5. Krishna Prasad Siwakoti v. Government of Nepal13

The decision of administrative Office may be appealed in prescribed court if they

violate laws in force.

6. Gopal Siwakoti and Rajesh Gautam v. government of Nepal14

Nepali citizen has the right to know about Arun III as the project is against
environment and human value of local.

7. Sapana Pradhan Malla v. Office of Prime Minister and Council of Minister

and Others15

The name of old person, child, raped women etc. cannot be mentioned not only in
hearing but also in publication. Consent of the party is required. Privacy should
be respected.

8. Hirapasi v. HMG16

A person cannot be penalized on the basis of confession made before the police.

9. Padam Sunder Malla et al. v. Government of Nepal17

No person can decide in his own case or same person cannot be plaintiff and
judge except in the case of contempt of court.

13
NKP 2057, Decision No. 6930, available at https://nkp.gov.np/, accessed on 29 April 2023
14
NKP 2051, Decision No. 4895, available at https://nkp.gov.np/, accessed on 29 April 2023
15
NKP 2063, Decision No. 7880, available at https://nkp.gov.np/, accessed on 29 April 2023
16
NKP 2028, Decision No. 612, available at https://nkp.gov.np/, accessed on 29 April 2023
17
NKP 2015, Decision No. 10, available at https://nkp.gov.np/, accessed on 29 April 2023

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 10. Adv. Rajendra Ghimire et al. v. Government of Nepal18

Supreme Court has made clear differentiation between Adversarial Legal System
and Inquisitorial Legal System. The Supreme Court here interprets and provides
definition of specific types of legal system that has been followed in Nepalese
Scenario.

Civil Legal system

 Known as continental law, Romano-Germanic Law

 Originated from Roman law particularly “Corpus Juris Civile”
 Have two main sources: primary sources: legislation and secondary
sources: precedent, customs, legal writings and principles.
 Superior status of codified and written law
 Trials are inquisitorial.
 Strict application of law.
 Jurists and academicians is highly influential while the role of judges is
not influential. The deciding of case includes nothing more than applying
a particular given rule of law to the facts in issue.
 The precedent did not bind the court.
 There is no hierarchy of courts. They are independent to each other.
 Supremacy of constitution
 Privileges of judges
 Evidence act, 2031 (burden of proof goes to defendant)
 Dibyapadesh, which was in edited written form
 Close hearing system
18
NKP 2066, Decision No. 8101, available at https://nkp.gov.np/, accessed on 29 April 2023

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  Quasi-judicial body like CDO, LDO etc.
 Judge appointment system in district court
 Government prosecution act
 Drugs trafficking control act, 2031
 Corruption control act, 2059
 Human trafficking act, 2043 which has been repealed and currently human
trafficking act, 2064
 Different special court are formed like police court, army court etc.
 Good consign
 Double and special bench of court

Impact of civil law in Nepalese legal System

Nepalese laws since the ancient period until the establishment of democracy in 1951 were
based on religion, local customs, and royal edicts. Law is considered to be a branch of
religion. Prior to the codification of the Country Code (Muluki Ain) of 1854, the legal
system of Nepal was very much influenced by religion. If we study our Hindu
Philosophy, history of Hindu Law and our Eastern legal traditions, there is very much
similarity between Roman law and Hindu Law. The most important factor that brings
Hindu Law and Roman law at the same line is their mode of development. The great law
givers of the society were the university teachers and professors; likewise the great
lawgivers of the Hindu law were the great Rishis (Hindu sages) who made law after
considerable deliberation and discussion among them and it was accepted by the
conscience of the people. The Rishis were great scholars of the East whose job was
teaching Dharmashastra and nyayashastras, the source of the Hindu law. These sources
were not only hymns but complete legal codes.19 So it can be said that the nature of
Nepalese legal system at this period resembled to civil law system. The legal system of

19
Rewati Raj Tripathee, Nepalese Legal system, A Jurisprudential and comparative Appraisal ed. 2073,
Lumbini Prakasan; p.224

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Nepal has been developed on the basis of Codification. Yagnabalkya Smriti was an
extensive legal code composed by Yagnabalkya. Manab Nyayeshastra of Jayasthiti Malla
and code of Ram Shah were the major illustrations. In the Modern age, Jung Bahadur
Rana, the first Rana Prime Minister, bought the concept of Codification in Nepal. The
procedure was also similar to civil law system. The role of the judge and the court would
be active to identify the fact. Legal code of 2010 B.S was no more than the aggregation
of the religious laws, customs and usages prevalent at that time. 20 Nepal started with
inquisitorial mode of justice. This lasted until 2017. Any person aggrieved of any crime
could report the case directly to the court. The court used to send inquisition team on the
spot of crime to inquire about the case. This was popularly known as "Sarzamin". It was
the group of the people gathered under the order of the inquisition team to give
information about the crime. In fact it worked like a jury to ascertain whether the accused
committed the crime or not. It played vital role in the adjudication of the case by the
court. Where the accused is arrested, his confession before the police used to be the main
focus point in the adjudication. The police was empowered to administer torture against
the suspect to procure confession (as depicted in Chori Ko Mahal, Muluki Ain 1910). The
person who initiated the criminal justice into motion used to be penalized if he could not
prove the case or if the case failed from the court. Direct examination of the persons
involved in the litigation used to be the usual course of action in those days.
Mixed Model in the Mid-term Period - The inquisitorial pattern of prosecution got a
change formally in 2017 when "Sarakari Mudda Sambandhi Ain" was enacted and
implemented in practice. The informant who gives first information report to the police,
now, was regarded as witness for the prosecution. He was revealed from the risk of being
penalized from the court, should the case failed ultimately. The police and the
government attorney jointly carried on the investigation of the case. If there is any
discordance between the police and the government attorney as to whether the case must
go to the court, they were supposed to submit the case to the court for final decision. If
the court finds that there is sufficient ground to try the case, it was empowered to give
direction to the same line. The court was also empowered to conduct further investigation
20
Id.

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to the police if it finds the evidence collected so far was not sufficient against the
accused. The court itself, on the request of the litigant, could examine the witness in the
presence of the opponent. Evidence Act 2031 came into being with the notion of
privileges of the witness, limit and extent of the admissibility of oral evidence
classification of documentary evidence and their admissibility, presumption of law and
fact, burden of proof, and relevancy of personal opinion. The evidence act has made no
difference in our method of working before and after it. "Sarzamin" was regarded as
hearsay evidence as early as 2019 (depicted in Bir Bahadur, Krishna Bahadur v. Krishna
Maya Tamangni, N.K.P 2019, p. 240), unless the witness stated therein testify in the
court. But the "Sarzamin" or "Bastusthithi Muchulka" is taken as evidence even today.
Witnesses are examined without administering the oath in the proceeding. They, often,
take place in the absence of the judge and are conducted by the clerk of the court. We
pursued a mixed pattern in the proceeding of court in between 2017 to 2049. We allowed
intervention of the court in deciding whether there is sufficient evidence to proceed the
case in the trial. We allowed the court to examine the witness on the application of the
litigant. At the same time the investigator that is, the police enjoyed considerable liberty
in the course of investigation. The law empowers him to detain the suspect up to 25 days
under the supervision of the court. The prosecution still relies upon the confession of
accused made before him even though the court is unwilling to rely upon such confession
without corroborative evidence.21

Impact of civil law in Constitution

21
Available at http://www.asianlii.org/np/journals/KathSLRS/2003/4.pdf, accessed on 29 March 2023
(The Adversarial v. Inquisitorial Models of Justice - Prof. Madhav Prasad Acharya)

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Nepal has the written form of constitution and supremacy of constitution. As in the Civil
law there is codified law and constitution. All the other laws are based on the constitution
and any law inconsistent with constitution is void22.
 Article 1. Constitution as the fundamental law: (1) This Constitution is the
fundamental law of Nepal. Any law inconsistent with this Constitution shall, to
the extent of such inconsistency, be void.
 Article 25. Right relating to property: (1) Every citizen shall, subject to law,
have the right to acquire, own, sell, dispose, acquire business profits from, and
otherwise deal with, property.
Provided that the State may levy tax on property of a person, and tax on income
of a person in accordance with the concept of progressive taxation.
 Article 137. Formation of Constitutional Bench: (1) There shall be a
Constitutional Bench in the Supreme Court. The Constitutional Bench shall
consist of the Chief Justice and other four Judges designated by the Chief Justice
on recommendation of the Judicial Council.
 Article 152. Specialized courts: (1) Other specialized courts, judicial bodies or
tribunals may be formed to try and settle specific types and nature of cases other
than those mentioned in Article 127, as provided for in the Federal law.

Impact of Civil Law Statute:

Inquisitorial nature of litigation where accused has to prove his/her innocence that is
the Burden of proof shifts to accused/defendant. Some of such Statues in Nepal are as
below:-

i. Narcotic Drugs (Control) Act, 2033(1976)23:

22
Available at https://lawcommission.gov.np/en/wp-content/uploads/2021/01/Constitution-of-Nepal.pdf,
accessed on 30 April 2023
23
Available at https://lawcommission.gov.np/en/?cat=407, accessed on 29 March 2023

16
 Section 12: Onus of Proof : In case any narcotic drug is found to be in
possession of any person or if any evidence is found that cannabis/
marijuana, opium or coca is being cultivated or had been cultivated in
any farm of a person or if any substance that has been partly processed
for the manufacture or production of any narcotic drug or any residue
left after such production is found to be in possession of any person,
such person shall have to furnish proof to the effect that he/she has
obtained or possessed such substance under this Act or the Rules framed
or orders issued hereunder. If he/she fails to do so, he shall, unless
otherwise established, be deemed to have committed an offence
punishable under this Act.

ii. Human Trafficking and Transportation (Control) Act, 2064 (2007)24

Section 9: Burden of proof: Notwithstanding anything contained in the
prevailing law, a person accused of an offence under this Act shall
provide evidence proving that he/she did not commit the offence.

iii. Money Laundering Prevention Act, 2063 (2008)25

Section 28: Assets Deemed to Have Gained by Laundering: In case

assets of a person sued for an offence under this Act is found to be
unnatural in comparison to the income source or financial condition or
one is living a life unnaturally high in standard or proved to have
donated, granted, gifted, provided loans, contribution or endowment
more than his/her capacity, he/she is required to prove the source of
earnings and in case he/she fails to prove so he/she shall be deemed to
have earned such assets by committing offences under this Act.

Evidence Act, 203126:

24
Available at https://lawcommission.gov.np/en/?cat=407, accessed on 29 March 2023
25
Available at https://lawcommission.gov.np/en/?cat=407, accessed on 29 March 2023
26
Id.

17
 Section 27: Burden of proof on the Defendant: (1) If the defendant
makes a counter claim (Jikir) regarding remission from the penalty or
acquittal from the charge (penalty) pursuant to prevailing Nepal law, the
burden of proof of proving such fact shall lie on the defendant
him/herself.

Section 52: Examination-in-chief and cross examination of the expert:

When it is necessary to reach to the conclusion regarding any fact
relating to signature, finger impression, law of a foreign country,
science, custom-tradition, art or any other similar subject, the court may
cause to appear, the person who deserves special expertise, experience
or training and examine him/her as a witness. In case an expert witness
is so examined by the court, it has to provide opportunity to the parties
to the case for cross examination of such witness pursuant to this Act.
Section 53: Court may ask necessary question with the witness: The
court may ask any question, which deems it necessary, to the witness.

Cases of Nepalese legal system related to civil law system

 Pradeep Adhikari v. Government of Nepal 27

If the accused makes a counter claim regarding remission from the penalty or
acquittal from the charge the burden of proof of proving such fact shall lie on

accused himself. As the money bribed to the accused for registration of school
was found from his pocket and he denies of being bribed but is unable to prove
himself innocent with the objective evidence. So, the notes found from his pocket
cannot be considered or assumed to be kept forcefully without the consent and
knowledge of the accused. The investigation was done with due process of law
and no malafide intention was found in the petitioner. As the accused was caught
27
NKP 2067,Vol.4, Decision No.8340, Available at https://www.nkp.gov.np/, accessed on 29 April 2023

18
 red-handed so such Civil servant is to be punished by law.

 Reena Bajracharya v. Royal Nepal Airline corporation et.al28

The Rule 16.1.3. of the regulation of Royal Nepal Airlines was against right to
equality, inconsistent with the constitutional provision and so the regulation act of
RNAC was declared ultra-virus by the Supreme Court.

 Nepal Government v. Arjun Bhote called Jitbahadur Khatri29

Any crime in which any object or things banned by the government is found in
possession of someone is considered to be a criminal act (Corpus Delicit) such
nature of crime is called possessory crime. In such criminal act the burden of
proof to prove himself/herself innocence lies to the defendant.

Socialist Legal System

Socialist Legal System is also called critical tradition of commercial system. This
legal system completely focuses on sociological study of law and society from
economic point of view and making the laws that favors the have-nots in course
of class struggle. Nepal too, has its legal system affected by characteristics of
socialist legal system because Nepal has witnessed major political paradigm shift
due to people's movement at different time periods by communist parties. The
current constitution of Nepal explicitly mentions in its preamble that the
sovereign people of Nepal are committed to socialism based on democratic norms
and values to build an egalitarian society discriminating all forms of inequality.

28
Writ no. 2812, NKP 2057 vol. 5 Decision No. 6898, Available at https://www.nkp.gov.np/, accessed on
29 April 2023
29
NKP 2069, Vol.11, Decision No. 8923, Available at https://www.nkp.gov.np/, accessed on 29 April
2023

19
Nepal has adopted or received some concept or idea from socialist legal system
and enshrined them in her Constitution.

 Right to equality ( Article 18)

 Right against torture ( Article 22)
 Right against untouchability and discrimination (Article 24)
 Right against exploitation ( Article 29)
 Right to Employment ( Article 33)
 Right regarding labor (Article 34)
 Right to Social Justice (Article 42)
 Right to Social Security (Article 43)
 Directive principle, policies and responsibilities of State

-Nepal has adopted scientific land reform programme and ended feudalistic land
ownership.
-The fifth five year plan period (1975-80/2032-37 B.S) was heavily affected by
Socialist Legal System in Nepal.
-Nepal follows a policy of protecting and promoting national industries and
resources.
-Rules concerning state owned enterprises, cooperatives are influenced by
Socialist law.
-Repeal all discriminatory law
-Establishment of public enterprises
-Land Reform Act, 2021 B.S
-Labor Act, 2074 B.S
-Birta Abolition Act, 2016 B.S
-Investment for promotion of industries and trade
-Policy of establishing the rights of all citizens for education, health, housing,
employment and food sovereignty.

20
-Promote economically backward classes.

Impact of Socialist Legal System on Nepalese Legal System

Nepalese legal system has been found to be heavily dominated by common law
system. Our legal system has adopted some of the characteristics of socialist legal
system while exercising right to property, right to equality and other economic
rights and procedures that implements these rights. Our constitution, various acts,
legislations and judicial precedents revealed the reflection of socialist legal
system on Nepalese legal system.

1) The Constitution of Nepal:

Although the right to property was incorporated as a fundamental right in the

constitution of Nepal since the very beginning of the constitutional history, the
state power always tries to control over individual property. Article 49 (1) of the
present Constitution of Nepal has set directive principles, policies and obligation
set forth under part- 4 as the guiding principles for the governance of the state.
Article 49 (2) outlines that the state shall mobilize, or cause to be mobilized,
means and resources, as required, to implement the principles, policies and
obligations set forth in part- 4 of the constitution. Policies relating to agriculture
and land reforms, Policies relating to protection, promotion and use of natural
resources available within the territory of Nepal have given authority to the Nepal
government to utilize these resources. The present Constitution in its preamble
has enshrined that the sovereign people of Nepal are committed to socialism
based on democratic norms and values to build an egalitarian society founded on
the proportional inclusive and participatory principles in order to ensure economic
equality, prosperity and social justice, by eliminating discrimination based on

21
class, caste, region, language, religion, gender and all forms of caste based
untouchability.

2) Legislation/Acts:

I. Birta Abolition Act, 2016: The then Prime Minister B.P Koirala declared the
abolition of Birta Pratha in 2016. The Birta Pratha existed as a form of feudal
landlord system in Nepal. This was practiced since the ancient history where the
kings used to give away lands to their near and dear ones who became the birta
land owners later and they used to collect taxes (in the form of raisins and crops)
from farmers who cultivated those lands. The poor farmers were exploited this
way as they did not exercise any right of ownership over those lands. Hence, this
Act was a major step in the domain of land reform. This Act in its preamble
declared that all the Birta lands up to that time shall be converted into Raikar land
and the ownership will be transferred to Nepal Government and the ownership
right of Birta land owners will cease. All the Acts, Sanads, Sawals and written
documents that provide for ownership of those birta lands to individuals will be
declared void. The birta land owners were also provided compensation. The
compensation amount was calculated on the basis of the tax they used to collect
annually from the farmers. And over course of time and with newer ideas of land
reforms, the Nepal government introduces provisions of registering those birta
lands in the name of farmers who cultivated those lands since ancient time. It is
still in practice in some parts of Nepal. The government is trying to assure
registration of these lands in the name of those farmers.

II. Co-operatives Acts, 2074: This Act (in its preamble) aimed at socialism-
oriented national economic system. It unified the capital, technology and skills of
the farmers, artists, lower income generating groups, marginalized groups and
local consumers on the basis of mutual co-operation and autonomy in order to

22
establish community based and membership oriented co-operatives to make the
economy self-reliant and sustainable. Co-operatives are considered as one of the
three most important pillars of national economy due to which its promotion was
focused. This Act aimed at creating social solidarity, poverty reduction, creation
of productive employment, positive labor relations, equity based inclusive society,
increment in production etc. Under this Act, agricultural profession promotion
policy, 2063 was also introduced which aimed at identifying growth centers
depending upon the geographical, technological and economic possibility. It
further established special economic zones.

III. Land Act, 2021: It aimed at rightful and justified distribution of agricultural
lands so that major positive changes can be brought in the lives of farmers who
are solely reliant on agriculture for their livelihood by introducing technology,
skills and knowledge required for scientific agriculture system. Its main goal was
to improve livelihood of farmers. This Act also abolished the Jimidari system, and
fixed land ceilings as per the following: No one shall own land more than 10
bigha in inner and all Terai region, 25 ropani in Kathmandu valley, and 70 ropani
in the Himalayan region. This Act provided for tenant rights. It also fixed land
ceilings by declaring what amount of land can be acquired by tenants through
their tenancy right. Those who were found to own land more than the fixed
ceilings were punished to pay fine to Nepal Government. The land owners were
paid compensation before their lands were seized and distributed among others.
But the provision of fixation of land ceilings were not applied in cases of Nepal
Government owned land, land owned by health and educational institutions, land
owned by government and public institutions and agencies. This Act also
introduced Kut system as per which land owners were not allowed to collect taxes
or profits (in the form of raisins and crops) from farmers more than half of what
amount of products were cultivated annually.

23
 IV. Caste-based discrimination and Untouchability Act, 2068: Using power given
by Section 16 of this Act, Caste-based discrimination and Untouchability
(Offence and punishment) rules was introduced in 2074. As per the Rules,
complaint about caste based discrimination can be filed in police or in the
National Dalit Commission or the local level. This is how discrimination based on
caste system became a major issue that could be heard directly in the central level.
It mainly aimed at creating a caste system free society.

V. Act to amend some Nepal Acts to maintain Gender equality, 2063: This Act
aimed to amend acts of different time periods to end gender based discrimination
and maintain gender equality. It brought significant changes and amendment in
the Muluki Ain, Birth, Death and Marriage Registration Act of 2033, Land Act of
2021 etc. just to maintain gender equality.

3) Judiciary incorporating distinct characteristics of Socialist legal system in

Nepalese legal system:

The Supreme Court of Nepal has established precedents in significant number of

cases that somehow introduced features of socialist legal system in Nepal. By
interpreting ambiguous laws and deciding rightly in favor of the suppressed party
to dispute, Supreme Court has based its decision on equity. These precedents have
somehow paved way for claiming that our legal system is somehow influenced by
the Socialist legal system. Some famous precedents were as follows:

i. Nanda Kumari Rawal v. Nepal Government, Ministries of industries et al.30

Article 15 of the constitution does not incorporate the right against seizure of
property while providing right to property. Right to ownership of a property is not
an unencroachable right. Ownership over a property does not arise from use of
30
D.N. 4721, N.K.P 2050 KA, vol. 4, Available at https://www.nkp.gov.np/, accessed on 29 April 2023

24
 that property. Rather, right to use a property arises from ownership over that
property. Seizure of the property by state mechanism means an end of ownership
over that property thus ending right to use that property. The legislature is free to
make laws that seize property of people by remaining within the boundaries of the
law. Principle of eminent domain, police power, public purpose have made right
to property encroachable. Exclusive right over individual properties is not
justified. Thus, Land Acquisition Act of 2018 and 2034 are not unconstitutional.

ii.Sanu Shrestha et al, v. Nepal Government, Prime minister and Office of Council
of Ministers, Singha Durbar, Kathmandu et al.31

As per the principle of eminent domain, the state can control one's right to
property. The state has first right over all the properties inside the territory of the
state. For national development purpose, the state can acquire lands of individuals
after providing appropriate compensation.

iii. Shyam Prasad Shrestha v. District Administration Office, Syangja et al.32

If people expect land in some other place as a form of compensation from state
which acquires their land citing the principle of eminent domain, then such

expectation is a legitimate expectation. The whole state mechanism has the duty
to fulfill such legitimate expectations.

iv. Adv. Mithilesh Kumar Singh v. Rt. Honorable Prime minister office, Singha
Durbar, Kathmandu et al.33

31
D.N. 9986, N.K.P 2075, vol. 4, Available at https://www.nkp.gov.np/, accessed on 29 April 2023
32
D.N. 9973, N.K.P 2075, vol. 3, Available at https://www.nkp.gov.np/, accessed on 29 April 2023
33
D.N. 6779, N.K.P 2056, vol. 9, Available at https://www.nkp.gov.np/, accessed on 29 April 2023

25
 Right to equality should be applied between equals. The constitution has stated
that all citizens shall be equal before law. No person shall be denied the equal
protection of law. No discrimination shall be made in the application of general
laws on grounds of origin, religion, race, caste, tribe, sex, physical condition,
condition of health, marital status, pregnancy, economic condition, language or
region, ideology or on similar other grounds.

Yogi Naraharinath et al. attorney Tikaram Adhikari v. Prime Minister Girija

Prasad Koirala, Office of the Prime Minister et al.34

The constitution has set directive principles, policies and obligation as the guiding
principles for the governance of the state. The state shall mobilize, or cause to be
mobilised, means and resources, as required, to implement the principles, policies
and obligations set on the constitution. The present constitution of Nepal has also
enshrined that no question shall be raised in any court as to whether any matter
contained in “Directive Principles, Policies and Obligations of the State” has been
implemented or not. But a state cannot be arbitrary in its decision regarding the
implementation of developmental policies ignoring the major fundamental rights
and causing threat to national interest.

Religious (Hindu) legal system

Religious legal system is independent branch of knowledge, which gives more

emphasis on morality, social harmony and solidarity. Nepalese legal system was

34
D.N. 6127, N.K.P 2053, vol.1, Available at https://www.nkp.gov.np/, accessed on 29 April 2023

26
 totally based on religious legal system and mainly on Hindu legal system before
2007 B.S.

 Morality was regarded as law

 Many festivals are celebrated by various caste, culture in varities of ways
 Slavery and sati pratha was in practice but now it has been criminalized
 Ghumto, Chhaupadi, Kumari pratha are still prevailing in some society
 Right to religious freedom
 Right to language and culture
 Division of different caste
 Different language and dress according to culture
 Offence regarding religious act (Criminal code, 2074)
 Brahmin are regarded as "Mahapurus" and they were not given punishment of
death penalty in previous time
 "Dharmasastra" has made influence on "Manabnyayasastra"
 During Kirat, Lichhavi and Malla period punishment was given according to caste
 Edicts of King
 Law made from Manusmriti and Naradsmriti
 Present National civil (code) Act, 2074 is heavily influenced by hindu legal
system
 Muluki ain, 1910 (for example: dharmaputra rakhne and ansabanda)
 Muluki ain, 2020
 The constitution of Nepal, 2019
 Heir act, 2044 (If a king give up or desert hindu religion, then his throne will not
remain as per the legal provision)
 The Constitution of the kingdom of Nepal, 2047 (Proclamation of constitutional
monarchy and Nepal as a hindu nation)

27
 Impact of Hindu law in Nepalese Legal System

Influence of Hindu law in Nepalese legal system can be studied by making

distinction between two periods: the period before 2007 B.S where Hindu law
existed as the Nepalese Legal System itself and the period after 2007 B.S where
the Hindu law influences the existing hybrid Nepalese Legal System as one the
sources of law. Historically, the Nepalese legal system is based on Hindu
philosophy and its growth and development is largely influenced by Hindu
religious texts.35 Prior to 1950 B.S, Nepalese legal system was indigenous in
nature. It had accepted Hindu Religion and its custom with little customization by
the monarch of various dynasty.36 The sources of law were religious scriptures,
social custom and tradition and royal edicts. Mundhum, Shrutis, Smritis and
Dharmashastras were the principal reference for Justice during the development
of Legal System from the period of Kirats to Shahs. The Muluki Ain of 1910 B.S.
was also based on Dharmashastra. After the successful revolution in 2007 B.C., a
new political system based on the democratic norms and values was recognized in
Nepal. Since then, modernization process of the Nepalese legal system has been
taking place at various levels and fields. Nepalese legal system has started to
introduce new concept through different sub-systems, the influence of Hindu legal
system was minimized, and it became a hybrid legal system in the last fifty years.
The concepts of rule of law, fundamental rights of people, independent judiciary,
etc., were introduced into the legal system. These concepts were the voluntary

35
Md. Ershadul Karim and Sirjana Sharma Pokhrel, Research Guide of the Legal System of Kingdom of
Nepal, 2023, available at https://www.nyulawglobal.org/globalex/Nepal1.html, accessed on 1 March
2023
36
Suman Acharya, Historical Compartment of Nepalese Legal System, 2021, April 28, 2021, Available at
SSRN: https://ssrn.com/abstract=3835576 or http://dx.doi.org/10.2139/ssrn.3835576, accessed on 1
March 2023

28
incorporation of foreign laws by the Nepalese natives due to various reasons such
as:-
 Failure of Dharmashastra to adequately meet the changing need of time as the
law based on Dharma remained static and failed to represent the aspirations of the
people in consonance with socio-cultural change.
 Lack of high skilled human resources to develop a strong and effective system
of law and Justice.
 Leaders who led the country during democratic movement having been trained
in Western Education in foreign countries.
 Necessity for fulfillment of legal gap. Despite the efforts for modernization and
westernization of Nepalese legal system, our needs and aspirations for justice
could not be met because there was the problem of Social Compatibility. This had
led to a situation where the influence of Hindu law can be outlined in the hybrid
Nepalese legal system till today. Some of the instances are:
- At the time of giving statement, witness has to take oath before the court saying
that they will give statement with honesty.
- The provisions in our Country Civil procedure Code (Act), 2074 which state that
if any person cannot be present at court in the prescribed date due to demise of his
relatives where he has to stay in kriya, he will get additional 15 days after the
expiry of the date of kriya to be present at the court. Kriya is the ritual followed
by Hindu people.
- Compromise system is the system received from the Hindu philosophy with the
provision “sarbnase samutpanne Ardhan Tyajati Pandita” which means, ‘to
preserve half is better than to lose full’ as provisioned on National Civil Code,
2074.
- The provision for consideration is given to the judge as discretionary power to
observe the case by heart and soul and to give clear opinion with the reason.
These provisions reflect the humanitarian sense for declaring the fine or prison for

29
 culprits. The judge may be influenced by his dharma or good conscience which is
a part of Hindu law.
- If a person of unsound mind commits a crime, lack of his/ her ability to sense the
consequences of his/her act provides the ground to mitigate the gravity of offence
in determining the punishment. This provision is influenced by Hindu philosophy.
Such act is the result of insanity and not known to actor so sin will be less to him
according to dharma.

Case Laws

Influence of Hindu law is not only in the form of codified laws but also
recognized by the Supreme Court of Nepal in deciding the case. Here are some
cases which show the influence of Hindu philosophy in Nepalese legal system.

Advocate Tulsi Simkhada vs. Government of Nepal37

It is clear from the study of Article 4 of the Constitution that it is the

constitutional duty of the state to preserve the religion and culture that has been
going on since time immemorial. Where more than 80 percent of the people are
Hindus, whose culture and civilization has been linked with Hindu religion and
way of life since time immemorial, the state should not be indifferent to the
preservation of such religion and culture. Article 26 of the Constitution of Nepal
gives the state the right to manage religious places, religious trusts and properties
through law. It will be the duty of the state to stop such acts in case of violation of
law. Secularism does not necessarily mean "the state should not turn a blind eye
to religious issues." In this sense, it will be the national and international duty of
the state to protect the religious heritage, which is on the World Heritage List of
historical and archeological importance, like the temple of Pashupatinath.

37
NKP 2074, Decision No. 9849, Available at https://www.nkp.gov.np/, accessed on 1 May 2023

30
 Langawati Yadavni vs. Mahadev Yadav38

In this case court spoke that without getting marriage with each other no female
says marriage is held because accepting marriage without actually taking place
affects her religious and moral character. If a female proclaims the existence of
marriage with a male, the male is bound to accept her as wife; the conjugal
relation has to be established.

Tara Devi Paudel vs Cabinet Secretariat and others39

The study of the preamble of general Country Code shows that theology also has
an effect on some of its provisions. While the major provision on incest has
prohibited incest marriage, at the same time it has recognized the customs of the
particular castes and creed allowing incest marriage under the fundamental right
to practice one’s religion guaranteed by the Constitution. The intention of the
parliament in prohibiting incest marriage is beneficial to the society and should
not be interfered with. Under the legal system of Nepal, after the death of the
husband, the rights and responsibilities of the husband are transferred to the
widow and the relationship between the husband and wife will continue as long as
the husband is in the family as long as he is a member of the family. It does not
seem lawful to say that the widow does not have the same relationship with the
husband's brother as before the death of the husband. In light of the plea that the
provision on incest marriage prohibiting the marriage between a widow and
brother in law but allowing the marriage between a widower and sister of his wife
is discriminatory, it is important to note that such sister of the deceased wife of
38
NKP 2030, Decision No. 732, Available at https://www.nkp.gov.np/, accessed on 1 May 2023
39
NKP 2058, Decision No. 7016, Available at https://www.nkp.gov.np/, accessed on 1 May 2023

31
 the widower is not a family member who is a coparcener. Legal provisions
influenced by social, religious and traditional beliefs and practices provide that
both the situation do not have the same status in this regard.

Kanchha Prajapati vs. Ratna Prajapati40

In the interpretation of the word ‘son’ Supreme Court has held that ‘son’ denotes
the adopted son too. Such son can get the right of tenancy as a biological son. If
the son is adopted according to law, then the adopted son has the ultimate right
over the property of the father who has adopted him.

Bharat Mani Jangam v. Government of Nepal41

People of any religion or culture are eligible to hold public office. There is no
distinction of religion. However, in the case of gods and goddesses, their
respective customs are determined by the traditions and policies of their
respective religions. Shri Pashupatinath is the only deity of Hindus. Therefore, in
order to be involved in any administrative work, including the worship of
Pashupatinath, he must first be a Hindu. It is necessary for such a person to have
the qualities including the knowledge of Hindu religion. Religion and faith are
very sensitive issue. In any case, the possibility of some kind of interference from
other religions should be ruled out. Since government officials and officials have
no divine faith or religion, all such possibilities should be seriously considered
before selecting such government officials for an effective position in a religious
institution.
Besides, various case decisions from Supreme Court of Nepal regarding D.N.
9084, D.N. 9686, D.N. 9849, D.N. 8456, D.N. 6789, D.N. 4954, D.N 9724 and
40
NKP 2048, pg. 450
41
NKP 2072, Decision No. 9515, Available at https://www.nkp.gov.np/, accessed on 1 May 2023

32
 D.N. 6127 illustrates the impacts of Hindu Legal System on Nepalese Legal
System.

Japanese Legal System in relation with Nepalese Legal System:42

➢ Both countries legal system are mixed legal system and hybrid in nature.
➢ The development of legal system in both country are in the same way. Firstly,
they are influenced by civil law, latter Japan is guided from Anglo American
legal system and Nepal is guided from common law.
➢ Constitution is the higher sources of law in both country and both countries
have the system of judicial review.
➢ Unitary court system is the fundamental features of both countries.
➢ The prosecution system is same. Prevalence of Adversarial legal system in
both.
➢ Fundamental human rights, rule of law, people sovereignty, separation of
power, independent judiciary are the basic features of the constitutions of both
countries.
➢ No mandatory requirement age for lawyer.

Case Laws

1. Ram Prasad Sitaula et.al v. Timber Corporation of Nepal,Babarmahal43

Non-criminal and disciplinary actions as per the departmental enquiry done by

any institutions are completely different to judicial action in reference to

42
Shiva Prasad Acharya, Comparative Study of Japanese Legal System and Nepalese Legal System,
availableathttps://www.researchgate.net/publication/352505118_Comparison_between_Nepalese_Legal_
System_Japanese_Legal_System_11, accessed on 1 May 2023
43
NKP ; decision no: 7816, Available at https://www.nkp.gov.np/, accessed on 1 May 2023

33
 criminal law via public prosecution or criminal prosecution. Principle of Res
Judicata and double jeopardy is not violated in such case.

2. Adv. Padam Bahadur Shrestha et al. v. Agricultural and Livestock Ministry,

Singhadurbar et.al44

The subject and area of public interest cannot be demarcated. It should be

understand and litigated on case to case basis and as per the rights and
authority of constitution and prevailing laws.

3. Adv. Prakashmani Sharma et al. v. OPCPM, Singhadurbar et.al45

The state is only a regulator in response to individual property of any citizen.
Any person can sell or buy his or her individual property as obtained per law
for any other uses rather than illegal purpose that is prohibited by law.

44
NKP ; decision no: 10330, Available at https://www.nkp.gov.np/, accessed on 1 May 2023
45
NKP ; decision no: 8456, Available at https://www.nkp.gov.np/, accessed on 1 May 2023

34
Conclusion

Nepalese legal system is the hybrid legal system. It has the traces of common legal
system, civil legal system, socialist legal system as well as the religious legal system. But
in the early times, Nepalese legal system originally developed on the basis of Hindu
philosophy or religious scriptures like srutis and smrities of Manu, Yagyabalkya etc.
which were codified laws. The legal system of Nepal has been developed on the basis of
codification eg, Yagyabalkya Smriti, Manab Nyayashastra of Jayasthi Malla and later the
then Prime Minister of Nepal Jung Bahadur Rana brought the concept of codification in
Nepal through the Muluki Ain 1910 B.S.The process of development of Nepalese Legal
System resembles to that of Civil Law. Both of these laws are the result of scholarly
effort. Civil law was developed by the university professor of Medieval period who
taught the principles of Roman law. Both of the system thought that law must rule society
and submit to the rules of reason. Nepalese legal system historically resembled with civil
law in threefold basis; as regard to the process of development, as regard to the approach
to the legal rules and as regard to the procedure followed. The basis of civil law system is
codification of laws and in the Nepalese context we have the written constitution and the
codification of Civil and Criminal laws. Specialized court system such as labour court,
administrative court etc.
The countries having Socialist Legal System are those who formerly had Romano-
Germanic law but they adopted Socialist Legal System with major modification as per
their economic condition. Nepalese Legal System cannot be considered as Socialist Legal
System although we have some congruence with regards to property rights. If Socialist
Legal System could be adopted in Nepal, the Judiciary may not waste its time in
reviewing the law passed by the Parliament/State Legislatures. Majority of time
consumed by the lower courts in settling private disputes could also be saved. But Private
property, which is considered a status symbol for every individual, would not be legally
protected and arbitrary acts of executive may be increased. Hence, in-depth critical
analysis is necessary before adopting Socialist Legal System in Nepal.

35
The Japanese legal system today is essentially a hybrid of civilian and common law
structures, with strong underlying "flavors" from indigenous Japanese and Chinese
characteristics. While historical aspects remain active in the present, Japanese law also
represents a dynamic system that has undergone major reforms and changes in the past
two decades owing to advancements in technology and economy.

To sum up, common law is principally uncodified so there is no comprehensive

compilation of legal rules and statutes. While common law does rely on some scattered
statutes, which are legislative decisions, it is largely based on precedent. These
precedents are maintained over time through the records of the courts as well as
historically documented in collections of case law known as yearbooks and reports. It
didn’t develop on the basis of organized principle like civil law but it developed
independently and uniquely without any major impact of Roman law. Civil law on the
other hand, was heavily influenced by principles of Roman law in every stage of their
development. Common law evolved in a comparatively short period of time as having a
system of its own jurisprudence i.e. it developed on its own pattern. Unlike continental
European legal systems, which were heavily influenced in every stage of their
development by Roman law, common law is unique among the legal system of Europe.
Nepal, being a secular state, does not use Muslim laws to resolve issues involving
Islamist parties.

36
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Acharya, Shiva Prasad, Comparative Study of Japanese Legal System and Nepalese
Legal System, 2023

Acharya, Suman, Historical Compartment of Nepalese Legal System, 2021, April28,2021

Karim, Md. Ershadul & Pokhrel, Sirjana Sharma, Research Guide of the Legal System of
Kingdom of Nepal, 2023

Khanal, Rewati Raman, Nepal Ko Kanuni Itihasko Ruprekha, 1st Edition, 2059, p. 536-
537
Khanal, Bishal, The concept Received but the Contents Ignored: A Dilemma with the
legal systems of Nepal, Nepal Law Review, Vol, 12, No, 1, 1998

Tripathee, Rewati Raj, Nepalese Legal System: A jurisprudential and comparative

Appraisal, Lumbini Prakasan, 2073, p. 225

37