acca_f4_背诵讲义_english_legal_system.doc

Chapter 1 Structure of the legal system1. ESSENTIAL ELEMENTS OF THE LEGAL SYSTEMLaw Law is a formal control mechanism. It provides a structure for dealing with and resolving disputes. It also provides some deterrent to those wishing to disrupt social order.Common law Common law developed in England during the period following the Norman Conquest. It was made by judges who travelled around the country to keep the Kings peace and made law by merging local customary laws into one law of the land. Today, the concept of PRECEDENT continues to be the key feature of commom law, and distinguishes it from other legal systems. Remedies under common law are monetary, and are known as damages.Equity Common law does not provide justice to the wronged person if monetary compensation is not suitable. Equity developed two or three hundred years after common law as a system to resolve disputes where damages are not a suitable remedy and therefore introduced fairness into the legal system. For example, where a person needs to stop another persons behaviour or to force them to act as they agreed to, equity provides remedies to achieve this.Civil law Civil law exists to resolve disputes over the rights and obligations of persons dealing with each other and seeks to compensate wronged parties. It is a form of private law (between individuals) and covers areas such as tort, contract and employment law. In civil proceedings, the case must be proved on the balance of probability, the object is to convince the court that it is probable that a persons assertions are ture. There is no concept of punishment in the civil law and compensation is paid to the wronged person. If they wish, both parties may choose to settle the dispute out of court.Criminal law A crime is conduct that is prohibited by the law. Criminal law is a form of public law (betweent the State and individuals). In criminal proceedings, the State is the procecutor because it is the community as a whole which suffers as a result of the law being broken. The burden of proof to convict the accused(认定被告有罪) rests with the procecution, which must prove its case beyond reasonble doubt. In the UK, the police take the initial decision to prosecute, this is then reviewed by the Crown Prosecution Service. However, some prosecutions are started by the Director of Public Prosecutions, who is the head of the Crown Prosecution Service. Persons guilty of crime may be punished by fines payable to the State, imprisonment, or a community-based punishment. The distinction between civil law and criminal lawThis is not an act or event which creates the distinction between civil and criminal law, but the legal consequences. A single event might give rise to both civil and criminal proceedings.2. JURISDICTION OF CIVIL COURTS The nature of the case and the size of the claim will determine which court hears a civil case. The County courts hear small cases ( claims under 5,000) or those which are deemed to be FAST TRACK cases. The case is heard by a Circuit Judge assisted by District Judges. Complicated cases or those which are deemed to be MULTI TRACK cases are heard at the High Court. The Queens Bench Division hears cases concerning contract and tort issues. The Family Division hears cases concerning children and matrimonial issues. The Chancery Division hears cases concerning trusts, bankruptcy and corporate issures. Appeals are to the Civil Division of the Court of Appeal and are heard by three judges who will decide the outcome by a majority. A further appeal to the Supreme Court for the United Kingdom may be permitted if it involves an issue of public interests.3. JURISDICTION OF CRIMINAL COURTS All criminal cases begin in magistrates courts where the case is introduced into the system. Certain types of offences are known as indictable offences, these are serious offences and can only be heard in Crown Court. Other less serious summary offences are heard summarily in the magistratescourt. Where an offence falls in between the two, it can be triable either way, the defendant will have the choice to be tried at the magistrates court or at the Crown Court. Where the decision in a criminal case is appealled against, a court further up the hierarchy will hear it. Appeals from magistrates courts are either to the Crown Court or the Queens Bench Division of the High Court. Case stated appeals from the Crown Court are made to QBD. Case stated is a legal function to review a magistrates court decision on a point of law , it means the law was misinterpreted by the magistrate. Appeals from the Crown Court are made to the Court of Appeal and this may be appealled to the Supreme Court for the United Kingdom if it involves an issue of public interests.4. THE MAIN CIVIL COURTS IN THE ENGLISH LEGAL SYSTEMMagistrates court The magistrates court is mainly a criminal court, but it also has original jurisdiction in many civil cases, such as liscensing and family issues. It will also hear claims for recovery of unpaid local authority charges and council tax(英国家庭税).County CourtCounty courts have civil jurisdiction only, it deal with almost every kind of civil case within its serve areas. The main limits to its jurisdiction are financial. It is involved in the following matters: Contact and tort Equity matters Probate matters Disputes concerning land Undefended matrimonial cases Some bankruptcy, company winding-up and admiralty cases（海事裁判）.High CourtThe High Court are divided into three divisions. The Queens Bench Divison hears cases concerning contract and tort issues. It also has a Commercial Court and an Admiralty Court. A divisionl court of the QBD has an appellate jurisdiction on appeals from magistrates court and tribunals. The Family Division hears cases concerning children and matrimonial issues. The Family Division also has a limited appellate jurisdiction on some appeals from the Magistrates Court. The Chancery Division hears cases concerning trusts, mortgage, bankruptcy, taxation, probate and corporate issures. It also has a Patents Court and a Company Court, which deals with liquidations and other company proceedings.Appeal courtsThe civil court which have an exclusively appellate jurisdiction are the Civil Division of the Court of Appeal and the Supreme Court for the United Kingdom.Court of Appeal The Court of Appeal hears appeals from the County Court, High Court and several sepcial tribunals. It reviews the evidence and the legal opinions and makes its decisions based on them. Cases are heard by three judges ( known as Lord Justices of Appeal) who will decide the outcome by a majority.Supreme Court for the United Kingdom The Supreme Court for the United Kingdom is the highest appeal court in the English legal system. Cases are heard by Justices of the Supreme Court. The court hears appeals from the Court of Appeal and also appeals from the High Court, under the leapfrog procedure .5. THREE TRACK SYSTEM FOR THE ALLOCATION OF CIVIL CASES The Civil Procedure Rules (CPR 民事程序规定) introduced a three track system for the allocation of civil cases. Generally speaking, county courts hear small track cases and fast track cases and the High Court hears multi-track cases. In the small claims track, claims of no more than 5,000 will be heard. These are cases to be dealt with quickly and informallly, often without the need for legal represetation or a full hearing. Parties can consent to use the small claims track if the value of the claim exceeds the limits, but this has to be subject to the courts approval. In the fast claims track, claims under 25,000 may be heard. There is a strictly limited procedure designed to enable cases to be heard within a short but reasonable timescale. Costs are fixed and hearings are no longer than one day. The multi-track is intended to provide a new and more flexible regime for the more complex claims, which has a value of more than 15,000. An initial case management conference will be held to encourage the parties to resolve the dispute or to consider the alternative dispute resolution. The trial judge sets a budget and a final timetable for the trial. Claimants of cases between 15,000 and 25,000 have the choice of using the fast or multi track, although judges may insist complex cases are heard under the multi track.Chapter 2 Sources of English law SOURCESCase lawStatuteCustomCommonEquityPrimarySecondarylawSources of English law There are three main sources of English law, namely case law, legislation (statute) and custom. Broadly speaking, case law is made and developed in the courts and legislation is made by the legislature（立法机关，立法团体） in Parliament. Since both of these sources create law today, they can be considered as contemporary. However, local customs, which developed historically and have existed for a very long time, are not considered as contemporary.1. CASE LAW AS A SOURCE OF LAW Case law is is made in the courts according to the common law and equity. Both common law and equity are the product of decisions in the courts made by judges who interpret and apply previous cases based on the doctrine of binding precedent. This doctrine provides that once a principle of law has been decided, it becomes a precedent which binds the lower courts in cases with materially the same facts. If the facts of the case are not materially the same as those of the relevant precedent, the precedent may be distinguished and not be followed. Only statements of law made by judges can form precedent. These statements can be divided into ratio decidendi and obiter dicta. Only the ratio decidendi forms the basis of precedent as it is this reasoning which is vital to his decision. Obiter dicta are statements of general law (or hypothetical situations) which are not necessary for the decision and hence are not binding. Whether the doctrine applies will depend on the status of the court dealing with the case. There is a hierarchy of courts with the lower courts being bound to follow the decisions of the higher courts. For example, magistrates courts and county courts are bound by the decision of the High Court, the Court of Appeal and the Supreme Court for the United Kingdom.2. DOCTRINE OF PRECEDENTThe doctrine of binding precedent The doctrine of binding precedent, or stare decisis, is essential to the English legal system. This doctrine provides that once a principle of law has been decided in court, it becomes a precedent which binds the lower courts in cases with materially the same facts. The purpose of the doctrine is to provide consistency, coherency and therefore predictablity and fairness in the development of the case law.Judgements A judgement in a case will start with a description of the facts and probably a review of earlier precedents. Then the judge will make statements of law applicable to the legal problems raised by the material facts. These statements can be divided into ratio decidendi and obiter dicta. Ratio dicidendi Only a proposition(论点，主张) of law, rather than a statement of fact, will be binding. Ratio dicidendi can be difined as any rule of law, express or implied, treated by a judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury. (Cross)Obiter dicta Obiter dicta are statements of general law (or hypothetical situations) which are not necessary for the decision in the case. The obiter dicta are of persusive authority only and do not bind lower court. They may be taken into account but need not be followed.Difference between them The ratio decidendi forms the basis of precedent as it is this reasoning which is vital to judges decision. It is not always easy to distinguish between the ratio decidendi and the obiter dicta. Judges do not always make clear in their comments whether a particular statement or conclusion is ratio or obiter. Indeed, in a case heard by more than one judge, each judge may provide a different ratio decidendi in support of a common decision.The hierarchy of the courts in relation to the operation of precedent(a)the Supreme Court for the United Kindom binds all lower courts but itself (exceptional cases)(b)Court of Appealbinds all lower courts and itself(c)High CourtJudge sitting alone binds all lower courts not divisional courtsJudges sitting together binds all lower courts and divisional courts(d)CrownMagistratesbind no-one at all CountyMagistrates, County and Crown Courts Decisions of the Magistrates Courts and County Courts do not consititute precedent and thereofore not bind on any court, but each of them is bound by decisions of the High Court, Court of Appeal and the Supreme Court for the United Kingdom. The Crown Court is also bound by the superior courts and its decisions are of persuasive authority only.High court A decision of the High Court made by an individual judge binds all lower courts, but not another High Court judge. However, it is of persuasive authority and tends to be followed in practice. A decison of Divisional Court usually binds another divisional court.Court of Appeal Decisions of the Court of Appeal binds all English courts except the Supreme Court for the United Kingdom. The court is normally bound by its own previous majority and unanimous (意见一致的) decisions, and by those of the Supreme Court for the United Kingdom.The Supreme Court for the United Kingdom The Supreme Court for the United Kingdom stands at the apex of the English judicial system. Its decisions binds all other English courts. Itself is bound by its own previous decisions, but it reserves the rights to depart from its own precedents in exceptional cases, although this is rarely exercised.Reversing, overruling and distinguishing Precedent A precedent is a previous court decision which another court is bound to follow by deciding a subsequent case in the same way. In certain circumstances, a judge may not wish to follow an previous decision and it may be open to them to reverse, overrule or distinguish the precedent.Reverse When the decision of a lower court is appealled to a higher one, the higher court may reverse the decision if they feel the lower court has wrongly interpreted the law. The original decision cannot form a precedent. For example, if the Court of Appeal reverse the decision of the High Court, the first decision cannot be a precedent but the reversed decision can. When a decision is reversed, the higher court is usually also overruling the lower courts statement of the law.Overrule Higher courts may overrule the decisions of lower courts, depriving (剥夺) their precedent status, if they disagree with the lower courts statement of law. Overruling involves an earlier case, rather than a case which is the subject of an appeal. When a decision is overruled, the law is changed with retrospective effect. Judges are usually cautious before overruling a long-standing precedent, but this is sometimes necessary, for example where what is acceptable within a particular society changes.Distinguishing For a precedent to be followed, the facts of the previous case and the case under consideration must be materially the same. If not, the precedent may be distinguished and not followed.3. THE ADVANTAGES AND DISADVANTAGES OF THE DOCTRINEAdvantagesCertainty Law is decided fairly and predictably. The need for costly and time-consuming litigation can be avoided. The doctrine also gives guidance to the judges and leads to consistency in decisions from different judges in different courts and in different parts of the country. Clarity The doctrine gives rise to a healthy source of statements of legal principle that can helpfully and clearly be applied to new cases generally. This leads to a saving of time for all concerned, it dont need to be put before the courts and argued again.Flexibility The doctrine allows the law to grow and be developed in accordance with changing needs and circumstances of society. It also allows a much more flexible judge-made law than Parliament-enacted legislation.PracticalityFaineasDisvantages Bulk. Restricts judicial discretion. reactive system. Lack of democratic accountability.4. LEGISLATION AS A SOURCE OF LAW AND ITS ADVANTAGES Statute law is made by Parliament. Parliament may make law as it sees fit it may repeal(撤销) earlier statutes, overrule case law or make law in new areas previously unregulated. The validity of an Act of Parliament cannot be questioned. ( Cheney v Conn 1968). However, this principle of Parliamentary sovereignty svrnti:(最高统治权、君权) has been reduced somewhat by the UKs membership of the European Union which requires its law to be brought into line with the EUs treaties and directives. Additionally, the Human Rights Act 1998 requires new laws to be compatible with the European Convention on Human Right. Statute law may be fresh legislation or may be a consolidation of existing statutes and their amendment, for example the Company Act 2006. It may also be a codification (法律汇编) of existing statute and case law, for example the Sale of Goods Act 1979. The courts are bound to apply relevant