英国法律制度简介(1)

1、The Introduction to the UK Legal SystemWhat 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, the Gre

2、ek philosopher Aristotle declared, The rule of law is better than the rule of any individual. 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. nThe judiciary

3、 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) Characteristics of English L

4、aw (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 tradition judge-made law, i.e., the common l

5、aw was developed by judges through case decisions. 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 statute law). nJudges are indep

6、endent of government and parties to disputesthey try to be impartial. nCourt procedure is accusatorial/adversarial in which judges do not investigate the case. Common law nCommon law means it is law common to the whole countrynational law in contrast to local law. nCommon law is based on judicial de

7、cisions (case law) in contrast to statute law (which is made by Parliament). 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 rules developed by the courts of equity.

8、Origin of common law nPrior 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 permanent royal court Kings Bench. nThe King sent tra

9、veling 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. Equity nEquity means fair or just in a wider sense of the word. nIt only exists in countries which follow the English commo

10、n 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. nWhen 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

11、situations. Example nIn 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 evidence that t

12、he 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. Solution to the problem: nThe disappointed litigants petitioned the King for extraordinary relief. nThe King, through h

13、is 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 court, whereas any common law right or remedy is given as of right. nWhen there is

14、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 abolished Supreme Court of Judicature established. Case Report nThe judgments in the higher courts

15、 are published in a series of law reports. nThe most common ones are: nAll England Law Reports (All ER) nAppeal Cases (AC) nWeekly Law Reports (WLR) nChancery (Ch) nQueens Bench (QB) nCriminal Law Reports (Crim LR) nKings Bench (KB) Case CitationCriminal Case nTrials on indictment are in the name of

16、 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 both abbreviate R. to be easy to remember. nIn some criminal cases, the private persons name is contained, in c

17、ases tried summarily. Case CitationCivil Case nCivil cases will usually be cited by the names of the parties, e.g., Rylands v. Fletcher. nIf 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

18、. 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 Chancery at page 216. n Reported in the year 1987 in volume 3 of the All England Law Reports at page 678, in Queens Benc

19、h 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. 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. Hu

20、dson 1980 Crim LR 107 Case study nMiller v. Jackson 【1977】QB 966 nThe 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 cricket balls and loss of enjoyme

21、nt 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 that was possible to stop the

22、balls coming into the plaintiffs garden, including erecting a fifteen foot high fence. Decision nHeld: 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 grant an injunction preventing the pla

23、ying of cricket. Reasoning nPer 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 injunction would be to prevent cricket being play

24、ed 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 house and garden while cricket was being pla

25、yed. Legal analysis nRead 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. nThe maxims of equity is as follows. There are many equitable m

26、axims of which the following are just brief examples: nEquity will not suffer a wrong to be without a remedy. Equity will only intervene when 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. nHe who comes t

27、o equity must come with clean hands. A litigant who has behaved unfairly in the dispute will be denied an equitable remedy. nEquitable 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 c

28、ircumstances of each case. D. 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) Case law from cases decided by judges in English, Scottish or Northern Irish courts. nAs the majo

29、r 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 substantive rules of law, consolidate existing enactments, codify the law, implement treaties, and introduce soci

30、al legislation. Legislation 2. Delegated legislation, in the form of by-laws, statutory instruments and Orders in Council. Delegated legislation is enacted by bodies authorized by Parliament. Case Law nCommon law is the law based on judicial decisions; case law nThe judges decision is the law: case

31、law nJudges reach decisions by following judicial precedent nCase-law consists of the rules and principles stated and acted upon by judges in giving decisions. Case Law nThe effect of precedent: Judge must consider precedent as part of material (persuasive); Judge must decide present case in same wa

32、y 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 reason not to do so) (coercive or binding). The binding element in precedent nRatio decidendi: the principle of law on wh

33、ich the decision of a case is based binding nObiter dictum: other statements made by the judge or said “by the way” persuasive nReversing nOverruling nDistinguishing Precedents which are not binding nPersuasive precedents: Precedent operates vertically downwards so that higher courts are not bound b

34、y decisions of courts lower 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 p

35、rospective and operates from 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 overr

36、uled, effecting a retrospective 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. nPrecedents which can be distinguished: nIf the court is prepared t

37、o 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. nIn theory it is possible to distinguish virtually and precedent, since factual situations will almost never duplicate themselves precisely. nThe p

38、ossibility of distinguishing 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. nPer incuriam (through lack of care) precedents nThe Court of Appeal in Young v.

39、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. nThe refers to decisions made where some relevant statutory provision or precedent had not been brought to the courts attention. nIn this sense the

40、 decisions are flawed. Rules of Interpretation nThe 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

41、 indicates 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 o

42、f its meaning. English Courts in general nClassification of the courts nThe court of first instance v. the appellate court ( i.e. courts of original jurisdiction v. courts of appellate jurisdiction)not satisfactory nThe court of civil jurisdiction v. the court of criminal jurisdictionnot satisfactory either nThe European Court of Justice: not an English court but the position must be considered. The hierarchy of the courts nThe European Co