英国法律制度简介(1)

1、英国法律制度简介(1)The Introduction to the UK Legal System英国法律制度简介(1)What is law?nLaw is a system of rules, usually enforced through a set of institutions. nLaw shapes politics, economics and society in numerous ways and serves as the foremost social mediator in relations between people. nWriting in 350 BC,

2、 the Greek philosopher Aristotle declared, The rule of law is better than the rule of any individual.英国法律制度简介(1)True or false:nThe law in Scotland is the same as the law in England.nEnglish law has evolved gradually.nMost of English law has been codified.nThe common law was developed by the judges.n

3、The judiciary is not independent of the government.nThe court structure of the English legal system is the same throughout the country. nAll the courts in the system are of equal authority.nEnglish judges collect evidence in the cases before them.Characteristics of English Law (1)英国法律制度简介(1)Characte

4、ristics of English Law (2)nThe United Kingdom does not have a single legal system. (The law in Scotland was influenced by Roman Law.)nThe English legal system is centralized through a court structure which is common to the whole country.nEnglish law is based on common law traditionjudge-made law, i.

5、e., the common law was developed by judges through case decisions. 英国法律制度简介(1)Characteristics of English Law (3)nThe court structure is hierarchical with the higher courts and judges having more authority than the lower ones.nJudges role is applying and interpreting the law (both case law and statut

6、e law).nJudges are independent of government and parties to disputesthey try to be impartial.nCourt procedure is accusatorial/adversarial in which judges do not investigate the case.英国法律制度简介(1)Common lawnCommon law means it is law common to the whole countrynational law in contrast to local law.nCom

7、mon law is based on judicial decisions (case law) in contrast to statute law (which is made by Parliament).英国法律制度简介(1)nCommon law legal system is based on precedents different from civil law jurisdiction based on civil codes. nIt comprises rules developed by the common law courts in contrast to the

8、rules developed by the courts of equity.英国法律制度简介(1)Origin of common lawnPrior to 1066 the Norman Conquest, the legal system was decentralized, each local courts applying its own local customary law.nHenry II was worried of his power diminished by barons who tried to run courts, and so created a perm

9、anent royal court Kings Bench.nThe King sent traveling judges to hear cases through Assizes (circuit courts) applying the legal rulings of the royal court.nThe common legal principles were applied to most parts of the land.英国法律制度简介(1)EquitynEquity means fair or just in a wider sense of the word. nIt

10、 only exists in countries which follow the English common law tradition. nIn law, equity exists to restore the natural justice within the courtroom, and follow a set of rules, which operate on a harsh level. 英国法律制度简介(1)nWhen the common law failed to give redress, equity came about because of the rig

11、id and inflexible approach of the common law judges in a number of situations.英国法律制度简介(1)ExamplenIn medieval times, if A borrowed 50 from B, A might be required to sign a document called a “bond” in which he agreed to repay the loan. Suppose he repaid the loan, but failed to have the bond cancelled.

12、 B then claims repayment of the loan, relying on the bond as evidence that the money was owed. What would the common law court do?nThe common law courts would refuse to look beyond the evidence of the bond and A would have to repay the loan a second time.英国法律制度简介(1) Solution to the problem:nThe disa

13、ppointed litigants petitioned the King for extraordinary relief.nThe King, through his Chancellor set up Court of Chancery to deal with petitions.nThe commonly used equitable remedies are specific performance and injunction. nThe equitable rights and remedies are given only at the discretion of the

14、court, whereas any common law right or remedy is given as of right.英国法律制度简介(1)nWhen there is conflict or variance between common law and equity, the latter prevails by way of common injunction (abolished later). nBut the rule stays.nIn 1875, courts of common law and the Court of Chancery were abolis

15、hed Supreme Court of Judicature established.英国法律制度简介(1)Case ReportnThe judgments in the higher courts are published in a series of law reports.nThe most common ones are:nAll England Law Reports (All ER)nAppeal Cases (AC)英国法律制度简介(1)nWeekly Law Reports (WLR)nChancery (Ch)nQueens Bench (QB)nCriminal La

16、w Reports (Crim LR)nKings Bench (KB)英国法律制度简介(1)Case CitationCriminal CasenTrials on indictment are in the name of the Queen (as representing the State) a criminal case: nReg. v. whoever it is Reg. being short for Regina; nwhen there is a king on the throne, Rex is used instead of Reg.nRex and Regina

17、 both abbreviate R. to be easy to remember.nIn some criminal cases, the private persons name is contained, in cases tried summarily.英国法律制度简介(1)Case CitationCivil CasenCivil cases will usually be cited by the names of the parties, e.g., Rylands v. Fletcher.nIf the Queen (as representing the Governmen

18、t) is a party in civil cases, usually called “The Queen”, and similarly with the King, e.g., British Coal Corporation v. The King.n Reported in the year 1970 in Appeal Cases at page 467. n Reported in the year 1917 in volume 2 of Kings Bench at page 822.n Reported in the year 1966 in volume 1 of Cha

19、ncery at page 216.n Reported in the year 1987 in volume 3 of the All England Law Reports at page 678, in Queens Bench at page 972, and in volume 3 of the Weekly Law Reports at page 537.n Reported in the year 1980 in the Criminal Law Reports at page 107 Baker v. Willoughby 1970 AC 467 Armstrong v. Ja

20、ckson 1917 2 KB 822 Cox v. Green 1966 1 Ch 216 Day v. Grant 1987 3 All ER 678; 1987 QB 972; 1987 3 WLR 537R. v. Hudson 1980 Crim LR 107英国法律制度简介(1)Case studynMiller v. Jackson 【1977】QB 966nThe facts: The plaintiffs owned a house adjoining a cricket ground. Cricket had been played on the ground for a

21、long time before the house had been built. The plaintiffs complained of damage caused by cricket balls and loss of enjoyment of their property. They brought an action against the cricket club for private nuisance seeking damages (the common law remedy) and an injunction (an equitable remedy) to prev

22、ent cricket being played on the ground. The cricket club argued that it had done everything that was possible to stop the balls coming into the plaintiffs garden, including erecting a fifteen foot high fence. 英国法律制度简介(1)Decision nHeld: The cricket club was liable to the plaintiffs for private nuisan

23、ce. An award of damages was made against them but a majority of the Court of Appeal refused to grant an injunction preventing the playing of cricket.英国法律制度简介(1)Reasoning nPer Lord Denning MR: The court when deciding whether to exercise its equitable jurisdiction and grant an injunction must have in

24、mind that it is under a duty to consider the public interest. Where the effect of granting an injunction would be to prevent cricket being played on a ground where it had been played for seventy years or so, the special circumstances are such that the public interest must prevail over the hardship o

25、f the individual householders who were deprived of the ability to enjoy, in peace and quiet, their house and garden while cricket was being played. 英国法律制度简介(1)Legal analysisnRead the facts of the following case and prepare a short judgment based on your knowledge of the maxims of equity. Discuss you

26、r decision with your classmates and be prepared to justify it by reference to the maxims. nThe maxims of equity is as follows.英国法律制度简介(1)There are many equitable maxims of which the following are just brief examples:nEquity will not suffer a wrong to be without a remedy. Equity will only intervene w

27、hen there is no adequate common law remedy.nEquity follows the law. Equity recognises legal rights and does not take the place of the common law.英国法律制度简介(1)nHe who comes to equity must come with clean hands. A litigant who has behaved unfairly in the dispute will be denied an equitable remedy.nEquit

28、able remedies are discretionary. Litigants do not have a right to an equitable remedy. The courts will decide whether to grant a remedy after considering the individual circumstances of each case. 英国法律制度简介(1)D. & C. Builders v. Rees 1965 3 All ER 837nThe defendants owed the plaintiffs 482 for bu

29、ilding work. The defendants consistently refused to pay the money until, knowing the plaintiffs were in financial difficulty, they offered to pay 300 to settle the debt. The plaintiffs reluctantly accepted. They then sued for the recovery of the outstanding debt of 182. Their action was based on the

30、 law of contract which allows a creditor to recover payment of a debt even after accepting part payment in full settlement. The defendants claimed the protection of the equitable doctrine of promissory estoppel which in some circumstances will prevent a person from going back on a promise in this ca

31、se the promise to accept 300 as full payment of the Reess debt.英国法律制度简介(1)The decisionnThe relevant maxim in this case is he who comes to equity must come with clean hands. The defendants could not be protected by an equitable doctrine as they had acted inequitably by withholding payment until the p

32、laintiffs were in financial difficulty. The plaintiffs were not held to their promise to settle the debt for the lesser sum and the defendants were ordered to pay the outstanding amount. The two other maxims mentioned in the text are also relevant: that there is no legal right to equitable remedies

33、which are granted at the discretion of the courts, and that equity recognizes legal rights, in this case the plaintiffs legal right at common law to recover the full debt. 英国法律制度简介(1)Useful Websitesn (this gives summaries of recent cases)n (this gives access to the full text of statutes or statutory

34、 instruments)n (this contains reports of the European Court of Justice)n (links to a variety of useful legal websites)n (gives a wide range of websites for all aspects of law)英国法律制度简介(1)The main sources of modern UK law(a) Legislation of the European Union; and cases decided by the European Court as

35、 to the interpretation of the European Union legislation;(b) Legislation by Parliament or powers delegated by Parliament; and(c) Case law from cases decided by judges in English, Scottish or Northern Irish courts.英国法律制度简介(1)nAs the major source of law, legislation exists in two forms: 1. Direct legi

36、slation, in the form of Acts of Parliament; Parliament has absolute legislative power through acts of Parliament to revise substantive rules of law, consolidate existing enactments, codify the law, implement treaties, and introduce social legislation.Legislation英国法律制度简介(1)2. Delegated legislation, i

37、n the form of by-laws, statutory instruments and Orders in Council. Delegated legislation is enacted by bodies authorized by Parliament.英国法律制度简介(1)Case LawnCommon law is the law based on judicial decisions; case lawnThe judges decision is the law: case lawnJudges reach decisions by following judicia

38、l precedentnCase-law consists of the rules and principles stated and acted upon by judges in giving decisions.英国法律制度简介(1)Case LawnThe effect of precedent: Judge must consider precedent as part of material (persuasive); Judge must decide present case in same way as previous case unless he or she can

39、give a good reason not to do so (persuasive); or Judge must decide present case in same way as previous case (even if he or she has a good reason not to do so) (coercive or binding).英国法律制度简介(1)The binding element in precedentnRatio decidendi: the principle of law on which the decision of a case is b

40、ased bindingnObiter dictum: other statements made by the judge or said “by the way” persuasivenReversingnOverrulingnDistinguishing英国法律制度简介(1)Precedents which are not bindingnPersuasive precedents: Precedent operates vertically downwards so that higher courts are not bound by decisions of courts lowe

41、r in the hierarchical system, which are only persuasive.nPrecedents which have been overruled: A precedent can be overruled by a subsequent decision of a higher court or by an Act of Parliament. Judicial overruling is retrospective, whereas overruling by Act is generally prospective and operates fro

42、m the date when the Act comes into effect.nOverruling must be contrasted with reversing. nOverruling affects the rule of law upon which the overruled decision was based, but not the rights of the parties. nA decision made twenty years previously by a lower court can overruled, effecting a retrospect

43、ive change in the law, but the position of the original litigants is not affected.nReversing is where a decision of a lower court is overturned on appeal and will affect the parties to the case directly.英国法律制度简介(1)nPrecedents which can be distinguished: nIf the court is prepared to find a material d

44、ifference in the facts of the case before it and the precedent it is requested to follow, it can refuse to be bound by the precedent.nIn theory it is possible to distinguish virtually and precedent, since factual situations will almost never duplicate themselves precisely. nThe possibility of distin

45、guishing is a further factor ensuring the flexibility and adaptability of the law to changing circumstances. nCases which are indistinguishable are regarded as being “on all fours” with one another.英国法律制度简介(1)nPer incuriam (through lack of care) precedentsnThe Court of Appeal in Young v. Bristol Aer

46、oplane Co. Ltd. 1944 KB 718 established that it was not bound to follow its own earlier decisions if they had been made through lack of care. nThe refers to decisions made where some relevant statutory provision or precedent had not been brought to the courts attention.nIn this sense the decisions a

47、re flawed. 英国法律制度简介(1)Rules of InterpretationnThe literal rule, which means that a word must be given its literal meaning, i.e., a word must be used in the ordinary and natural meaning.nThe golden rule, operates when the literal rule leads to an inconsistency, an absurdity or inconvenience, which in

48、dicates that the words used should not be given their ordinary meaning.nThe mischief rule, a subsidiary rule or an alternative to the literal rule, used to remedy the “mischief” that the statute failed to remedy.nThe purposive rule, looks at the purpose of a provision and the a purposive view of its

49、 meaning.英国法律制度简介(1)English Courts in generalnClassification of the courtsnThe court of first instance v. the appellate court ( i.e. courts of original jurisdiction v. courts of appellate jurisdiction)not satisfactorynThe court of civil jurisdiction v. the court of criminal jurisdictionnot satisfactory eithernThe European Court of Justice: not