英國(guó)法律制度簡(jiǎn)介1課件

1、The Introduction to the UK Legal System英國(guó)法律制度簡(jiǎn)介1What is law?Law is a system of rules, usually enforced through a set of institutions. Law shapes politics, economics and society in numerous ways and serves as the foremost social mediator in relations between people. Writing in 350BC, the Greek philos

2、opher Aristotle declared, The rule of law is better than the rule of any individual.英國(guó)法律制度簡(jiǎn)介1True or false:The law in Scotland is the same as the law in England.English law has evolved gradually.Most of English law has been codified.The common law was developed by the judges.The judiciary is not ind

3、ependent of the government.The court structure of the English legal system is the same throughout the country. All the courts in the system are of equal authority.English judges collect evidence in the cases before them.Characteristics of English Law (1)英國(guó)法律制度簡(jiǎn)介1Characteristics of English Law (2)The

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

5、 by judges through case decisions. 英國(guó)法律制度簡(jiǎn)介1Characteristics of English Law (3)The court structure is hierarchical with the higher courts and judges having more authority than the lower ones.Judges role is applying and interpreting the law (both case law and statute law).Judges are independent of gov

6、ernment and parties to disputesthey try to be impartial.Court procedure is accusatorial/adversarial in which judges do not investigate the case.英國(guó)法律制度簡(jiǎn)介1Common lawCommon law means it is law common to the whole countrynational law in contrast to local law.Common law is based on judicial decisions (ca

7、se law) in contrast to statute law (which is made by Parliament).英國(guó)法律制度簡(jiǎn)介1Common law legal system is based on precedents different from civil law jurisdiction based on civil codes. It comprises rules developed by the common law courts in contrast to the rules developed by the courts of equity.英國(guó)法律制度

8、簡(jiǎn)介1Origin of common lawPrior to 1066 the Norman Conquest, the legal system was decentralized, each local courts applying its own local customary law.Henry II was worried of his power diminished by barons who tried to run courts, and so created a permanent royal court Kings Bench.The King sent travel

9、ing judges to hear cases through Assizes (circuit courts) applying the legal rulings of the royal court.The common legal principles were applied to most parts of the land.英國(guó)法律制度簡(jiǎn)介1EquityEquity means fair or just in a wider sense of the word. It only exists in countries which follow the English commo

10、n law tradition. In law, equity exists to restore the natural justice within the courtroom, and follow a set of rules, which operate on a harsh level. 英國(guó)法律制度簡(jiǎn)介1When the common law failed to give redress, equity came about because of the rigid and inflexible approach of the common law judges in a num

11、ber of situations.英國(guó)法律制度簡(jiǎn)介1ExampleIn 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. B then claims repayment of the loan, relying on the bond as ev

12、idence that the money was owed. What would the common law court do?The common law courts would refuse to look beyond the evidence of the bond and A would have to repay the loan a second time.英國(guó)法律制度簡(jiǎn)介1 Solution to the problem:The disappointed litigants petitioned the King for extraordinary relief.The

13、 King, through his Chancellor set up Court of Chancery to deal with petitions.The commonly used equitable remedies are specific performance and injunction. The equitable rights and remedies are given only at the discretion of the court, whereas any common law right or remedy is given as of right.英國(guó)法

14、律制度簡(jiǎn)介1When there is conflict or variance between common law and equity, the latter prevails by way of common injunction (abolished later). But the rule stays.In 1875, courts of common law and the Court of Chancery were abolished Supreme Court of Judicature established.英國(guó)法律制度簡(jiǎn)介1Case ReportThe judgmen

15、ts in the higher courts are published in a series of law reports.The most common ones are:All England Law Reports (All ER)Appeal Cases (AC)英國(guó)法律制度簡(jiǎn)介1Weekly Law Reports (WLR)Chancery (Ch)Queens Bench (QB)Criminal Law Reports (Crim LR)Kings Bench (KB)英國(guó)法律制度簡(jiǎn)介1Case CitationCriminal CaseTrials on indictm

16、ent are in the name of the Queen (as representing the State) a criminal case: Reg. v. whoever it is Reg. being short for Regina; when there is a king on the throne, Rex is used instead of Reg.Rex and Regina both abbreviate R. to be easy to remember.In some criminal cases, the private persons name is

17、 contained, in cases tried summarily.英國(guó)法律制度簡(jiǎn)介1Case CitationCivil CaseCivil cases will usually be cited by the names of the parties, e.g., Rylands v. Fletcher.If the Queen (as representing the Government) is a party in civil cases, usually called “The Queen”, and similarly with the King, e.g., Britis

18、h Coal Corporation v. The King.英國(guó)法律制度簡(jiǎn)介1Examples Reported in the year 1970 in Appeal Cases at page 467. Reported in the year 1917 in volume 2 of Kings Bench at page 822. Reported in the year 1966 in volume 1 of Chancery at page 216. Reported in the year 1987 in volume 3 of the All England Law Report

19、s at page 678, in Queens Bench at page 972, and in volume 3 of the Weekly Law Reports at page 537. Reported in the year 1980 in the Criminal Law Reports at page 107 Baker v. Willoughby 1970 AC 467 Armstrong v. Jackson 1917 2 KB 822 Cox v. Green 1966 1 Ch 216 Day v. Grant 1987 3 All ER 678; 1987 QB 9

20、72; 1987 3 WLR 537R. v. Hudson 1980 Crim LR 107英國(guó)法律制度簡(jiǎn)介1Case studyMiller v. Jackson 【1977】QB 966The facts: The plaintiffs owned a house adjoining a cricket ground. Cricket had been played on the ground for a long time before the house had been built. The plaintiffs complained of damage caused by cri

21、cket 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 prevent cricket being played on the ground. The cricket club argued that it had done everything

22、that was possible to stop the balls coming into the plaintiffs garden, including erecting a fifteen foot high fence. 英國(guó)法律制度簡(jiǎn)介1Decision Held: The cricket club was liable to the plaintiffs for private nuisance. An award of damages was made against them but a majority of the Court of Appeal refused to

23、grant an injunction preventing the playing of cricket.英國(guó)法律制度簡(jiǎn)介1Reasoning Per Lord Denning MR: The court when deciding whether to exercise its equitable jurisdiction and grant an injunction must have in mind that it is under a duty to consider the public interest. Where the effect of granting an inju

24、nction 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 of the individual householders who were deprived of the ability to enjoy, in peace and quiet, their

25、 house and garden while cricket was being played. 英國(guó)法律制度簡(jiǎn)介1Legal analysisRead the facts of the following case and prepare a short judgment based on your knowledge of the maxims of equity. Discuss your decision with your classmates and be prepared to justify it by reference to the maxims. The maxims

26、of equity is as follows.英國(guó)法律制度簡(jiǎn)介1There are many equitable maxims of which the following are just brief examples:Equity will not suffer a wrong to be without a remedy. Equity will only intervene when there is no adequate common law remedy.Equity follows the law. Equity recognises legal rights and doe

27、s not take the place of the common law.英國(guó)法律制度簡(jiǎn)介1He who comes to equity must come with clean hands. A litigant who has behaved unfairly in the dispute will be denied an equitable remedy.Equitable remedies are discretionary. Litigants do not have a right to an equitable remedy. The courts will decide

28、whether to grant a remedy after considering the individual circumstances of each case. 英國(guó)法律制度簡(jiǎn)介1D. & C. Builders v. Rees 1965 3 All ER 837The defendants owed the plaintiffs 482 for building work. The defendants consistently refused to pay the money until, knowing the plaintiffs were in financial dif

29、ficulty, 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 law of contract which allows a creditor to recover payment of a debt even after accepting part payment in full settl

30、ement. 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 case the promise to accept 300 as full payment of the Reess debt.英國(guó)法律制度簡(jiǎn)介1The decisionThe relevant maxim in this case i

31、s 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 plaintiffs were in financial difficulty. The plaintiffs were not held to their promise to settle the debt for the lesser

32、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 which are granted at the discretion of the courts, and that equity recognizes legal rights, in this case the plaintiffs

33、legal right at common law to recover the full debt. 英國(guó)法律制度簡(jiǎn)介1Useful Websites (this gives summaries of recent cases) (this gives access to the full text of statutes or statutory instruments) (this contains reports of the European Court of Justice) (links to a variety of useful legal websites) (gives

34、a wide range of websites for all aspects of law)英國(guó)法律制度簡(jiǎn)介1The main sources of modern UK law(a) Legislation of the European Union; and cases decided by the European Court as to the interpretation of the European Union legislation;(b) Legislation by Parliament or powers delegated by Parliament; and(c)

35、Case law from cases decided by judges in English, Scottish or Northern Irish courts.英國(guó)法律制度簡(jiǎn)介1As the major source of law, legislation exists in two forms: 1. Direct legislation, in the form of Acts of Parliament; Parliament has absolute legislative power through acts of Parliament to revise substanti

36、ve rules of law, consolidate existing enactments, codify the law, implement treaties, and introduce social legislation.Legislation英國(guó)法律制度簡(jiǎn)介12. Delegated legislation, in the form of by-laws, statutory instruments and Orders in Council. Delegated legislation is enacted by bodies authorized by Parliamen

37、t.英國(guó)法律制度簡(jiǎn)介1Case LawCommon law is the law based on judicial decisions; case lawThe judges decision is the law: case lawJudges reach decisions by following judicial precedentCase-law consists of the rules and principles stated and acted upon by judges in giving decisions.英國(guó)法律制度簡(jiǎn)介1Case LawThe effect of

38、 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 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 reas

39、on not to do so) (coercive or binding).英國(guó)法律制度簡(jiǎn)介1The binding element in precedentRatio decidendi: the principle of law on which the decision of a case is based bindingObiter dictum: other statements made by the judge or said “by the way” persuasiveReversingOverrulingDistinguishing英國(guó)法律制度簡(jiǎn)介1Precedents

40、which are not bindingPersuasive precedents: Precedent operates vertically downwards so that higher courts are not bound by decisions of courts lower in the hierarchical system, which are only persuasive.Precedents which have been overruled: A precedent can be overruled by a subsequent decision of a

41、higher court or by an Act of Parliament. Judicial overruling is retrospective, whereas overruling by Act is generally prospective and operates from the date when the Act comes into effect.英國(guó)法律制度簡(jiǎn)介1Overruling must be contrasted with reversing. Overruling affects the rule of law upon which the overrul

42、ed decision was based, but not the rights of the parties. A decision made twenty years previously by a lower court can overruled, effecting a retrospective change in the law, but the position of the original litigants is not affected.Reversing is where a decision of a lower court is overturned on ap

43、peal and will affect the parties to the case directly.英國(guó)法律制度簡(jiǎn)介1Precedents which can be distinguished: If the court is prepared to find a material difference 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.In theory it is poss

44、ible to distinguish virtually and precedent, since factual situations will almost never duplicate themselves precisely. The possibility of distinguishing is a further factor ensuring the flexibility and adaptability of the law to changing circumstances. Cases which are indistinguishable are regarded

45、 as being “on all fours” with one another.英國(guó)法律制度簡(jiǎn)介1Per incuriam (through lack of care) precedentsThe Court of Appeal in Young v. Bristol Aeroplane 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. The refers to deci

46、sions made where some relevant statutory provision or precedent had not been brought to the courts attention.In this sense the decisions are flawed. 英國(guó)法律制度簡(jiǎn)介1Rules of InterpretationThe literal rule, which means that a word must be given its literal meaning, i.e., a word must be used in the ordinary

47、and natural meaning.The golden rule, operates when the literal rule leads to an inconsistency, an absurdity or inconvenience, which indicates that the words used should not be given their ordinary meaning.The mischief rule, a subsidiary rule or an alternative to the literal rule, used to remedy the

48、“mischief” that the statute failed to remedy.The purposive rule, looks at the purpose of a provision and the a purposive view of its meaning.英國(guó)法律制度簡(jiǎn)介1English Courts in generalClassification of the courtsThe court of first instance v. the appellate court ( i.e. courts of original jurisdiction v. courts of appellate jurisdiction)not satisfactoryThe court of civil jurisdiction v. the court of crimi