《英国法律制度简介.ppt》由会员分享，可在线阅读，更多相关《英国法律制度简介.ppt（43页珍藏版）》请在三一文库上搜索。
1、The Introduction to the UK Legal System,13601271441 ,What 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
2、philosopher Aristotle declared, The rule of law is better than the rule of any individual.,Characteristics of English Law (2),The 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 w
3、hich is common to the whole country. English law is based on common law traditionjudge-made law, i.e., the common law was developed by judges through case decisions.,Characteristics of English Law (3),The court structure is hierarchical with the higher courts and judges having more authority than th
4、e lower ones. Judges role is applying and interpreting the law (both case law and statute law). Judges are independent of government and parties to disputesthey try to be impartial. Court procedure is accusatorial/adversarial in which judges do not investigate the case.,Common law legal system is ba
5、sed 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.,Origin of common law,Prior to 1066 the Norman Conquest, the legal system was decentralized, each local court
6、s 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 traveling judges to hear cases through Assizes (circuit courts) applying the legal rulings of the royal court. The
7、 common legal principles were applied to most parts of the land.,When the common law failed to give redress, equity came about because of the rigid and inflexible approach of the common law judges in a number of situations.,Example,In medieval times, if A borrowed 50 from B, A might be required to s
8、ign 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 evidence that the money was owed. What would the common law court do? The common law courts would refuse
9、 to look beyond the evidence of the bond and A would have to repay the loan a second time.,Solution to the problem: The disappointed litigants petitioned the King for extraordinary relief. The King, through his Chancellor set up Court of Chancery to deal with petitions. The commonly used equitable r
10、emedies 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.,When there is conflict or variance between common law and equity, the latter prevails by way of common injunc
11、tion (abolished later). But the rule stays. In 1875, courts of common law and the Court of Chancery were abolished Supreme Court of Judicature established.,Case Report,The judgments in the higher courts are published in a series of law reports. The most common ones are: All England Law Reports (All
12、ER) Appeal Cases (AC),Weekly Law Reports (WLR) Chancery (Ch) Queens Bench (QB) Criminal Law Reports (Crim LR) Kings Bench (KB),Case CitationCriminal Case,Trials on indictment are in the name of the Queen (as representing the State) a criminal case: Reg. v. whoever it is Reg. being short for Regina;
13、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 contained, in cases tried summarily.,Case CitationCivil Case,Civil cases will usually be cited by the names of the parties, e.
14、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., British Coal Corporation v. The King.,Examples,Reported in the year 1970 in Appeal Cases at page 467. Reported in the year 1917 in volume 2
15、 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 Reports 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
16、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 972; 1987 3 WLR 537,R. v. Hudson 1980 Crim LR 107,Case study,Miller v. Jackson 【1977】QB 966 The facts: The plaintiffs owned a house adjoining
17、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 cricket balls and loss of enjoyment of their property. They brought an action against the cricket club for private nuisance seeking damages (the comm
18、on 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 that was possible to stop the balls coming into the plaintiffs garden, including erecting a fifteen foot high fence.,Decision,Held: The cricket cl
19、ub 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 grant an injunction preventing the playing of cricket.,Reasoning,Per Lord Denning MR: The court when deciding whether to exercise its equitable jurisdictio
20、n 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 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 in
21、terest must prevail over the hardship of the individual householders who were deprived of the ability to enjoy, in peace and quiet, their house and garden while cricket was being played.,Legal analysis,Read the facts of the following case and prepare a short judgment based on your knowledge of the m
22、axims of equity. Discuss your decision with your classmates and be prepared to justify it by reference to the maxims. The maxims of equity is as follows.,There 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
23、 only intervene when there is no adequate common law remedy. Equity follows the law. Equity recognises legal rights and does not take the place of the common law.,He who comes to equity must come with clean hands. A litigant who has behaved unfairly in the dispute will be denied an equitable remedy.
24、 Equitable 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.,D. and cases decided by the European Court as to the interpretation of the European Union legisla
25、tion; (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.,As the major source of law, legislation exists in two forms: 1. Direct legislation, in the form of Acts of Parliament; Parliament has ab
26、solute 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,2. Delegated legislation, in the form of by-laws, statutory instruments and Orders in Council. De
27、legated legislation is enacted by bodies authorized by Parliament.,Case Law,Common law is the law based on judicial decisions; case law The judges decision is the law: case law Judges reach decisions by following judicial precedent Case-law consists of the rules and principles stated and acted upon
28、by judges in giving decisions.,Case Law,The 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 give a good reason not to do so (persuasive); or Judge must decide present case in same wa
29、y as previous case (even if he or she has a good reason not to do so) (coercive or binding).,The binding element in precedent,Ratio decidendi: the principle of law on which the decision of a case is based binding Obiter dictum: other statements made by the judge or said “by the way” persuasive Rever
30、sing Overruling Distinguishing,Precedents which are not binding,Persuasive 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
31、 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 from the date when the Act comes into effect.,Overruling must be contrasted with reversing. Overruling affects th
32、e rule of law upon which the overruled 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
33、 of a lower court is overturned on appeal and will affect the parties to the case directly.,Precedents 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 p
34、recedent. In theory it is possible 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
35、indistinguishable are regarded as being “on all fours” with one another.,Per incuriam (through lack of care) precedents The 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 c
36、are. The refers to decisions made where some relevant statutory provision or precedent had not been brought to the courts attention. In this sense the decisions are flawed.,Rules of Interpretation,The literal rule, which means that a word must be given its literal meaning, i.e., a word must be used
37、in the ordinary 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, u
38、sed to remedy the “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.,English Courts in general,Classification of the courts The court of first instance v. the appellate court ( i.e. courts of original jurisdi
39、ction v. courts of appellate jurisdiction)not satisfactory The court of civil jurisdiction v. the court of criminal jurisdictionnot satisfactory either The European Court of Justice: not an English court but the position must be considered.,The hierarchy of the courts,The European Court of Justice:
40、Not a court of appeal within the English legal system but a court of referral. Its decisions are only binding on the English courts in relation to European Community/Union Law.,Parliament: House of Lords: the judicial power is replaced by a newly established court called the Supreme Court. House of
41、Commons,The Civil Courts,High Court and county courts are the principal civil courts in UK. The High Court has three Divisions: The Queens Bench Division: common law (wrecks) The Chancery Division: equity (wills) The Family Division: the former Probate, Divorce and Admiralty Division: divorce (wives
42、) First appeal to the Court of Appeal (Civil Division) Second appeal to the House of Lords (some can leapfrog to the House of Lords directly),Civil jurisdiction table,COUNTY COURT Small claims up to 3,000 Any action less than 25,000 unless transferred to the High Court Personal injury cases under 50
43、,000 Equity matters up to 30,000 Probate proceedings less than 30,000,HIGH COURT Any action over 50,000 unless transferred to the county court under High Court and County Courts Jurisdiction Order 1991,Cases in contract and tort between 25-50,000 could be heard in either court depending on the criteria in Article 7(5) of the 1991 Order: Financial value of the action Importance of the action Complexity of the case Whether transfer of the case will lead to a more speedy trial.,Thank you!,