,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,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,The Introduction to the UK Le,1,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 philosopher Aristotle declared, The rule of law is better than the rule of any individual.,英国法律制度简介1,What is law?Law is a system of,2,True 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 independent 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),英国法律制度简介1,True or false:Characteristics,3,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 which 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.,英国法律制度简介1,Characteristics of English Law,4,Characteristics 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 government and parties to disputesthey try to be impartial.,Court procedure is accusatorial/adversarial in which judges do not investigate the case.,英国法律制度简介1,Characteristics of English Law,5,Common law,Common law means it is law common to the whole countrynational law in contrast to local law.,Common 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,Common lawCommon law means it,6,Common 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.,英国法律制度简介1,Common law legal system is bas,7,Origin of common law,Prior 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 traveling 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.,英国法律制度简介1,Origin of common lawPrior to 1,8,Equity,Equity,means fair or just in a wider sense of the word.,It only exists in countries which follow the English common 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.,英国法律制度简介1,EquityEquity means fair or ,9,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.,英国法律制度简介1,When the common law failed to,10,Example,In 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 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.,英国法律制度简介1,ExampleIn medieval times, if A,11,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 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,.,英国法律制度简介1,Solution to the problem:英国,12,When 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.,英国法律制度简介1,When there is conflict or vari,13,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 ER),Appeal Cases (AC),英国法律制度简介1,Case ReportThe judgments in th,14,Weekly Law Reports (WLR),Chancery (Ch),Queens Bench (QB),Criminal Law Reports (Crim LR),Kings Bench (KB),英国法律制度简介1,Weekly Law Reports (WLR)英国法律制度,15,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,;,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.,英国法律制度简介1,Case CitationCriminal CaseTri,16,Case CitationCivil Case,Civil 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.,British Coal Corporation,v.,The King,.,英国法律制度简介1,Case CitationCivil CaseCivil,17,Examples,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 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 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,英国法律制度简介1,Examples,18,Case study,Miller v. Jackson 【1977】QB 966,The 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 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 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,Case studyMiller v. Jackson 【1,19,Decision,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 grant an injunction preventing the playing of cricket.,英国法律制度简介1,Decision Held: The cricket clu,20,Reasoning,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 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 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.,英国法律制度简介1,Reasoning Per Lord Denning MR:,21,Legal analysis,Read 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 of equity is as follows.,英国法律制度简介1,Legal analysisRead the facts o,22,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 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.,英国法律制度简介1,There are many equitable maxim,23,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.,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.,英国法律制度简介1,He who comes to equity must co,24,D. & C. Builders v. Rees,1965 3 All ER 837,The defendants owed the plaintiffs 482 for building 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 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 case the promise to accept 300 as full payment of the Reess debt.,英国法律制度简介1,D. & C. Builders v. Rees 1965,25,The decision,The 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 plaintiffs 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 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,The decisionThe relevant maxim,26,Useful 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 a wide range of websites for all aspects of law),英国法律制度简介1,Useful Websites (this gives su,27,The 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) Case law from cases decided by judges in English, Scottish or Northern Irish courts.,英国法律制度简介1,The main sources of modern UK,28,As 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 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,As the major source of law, le,29,2. Delegated legislation, in 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1,2. Delegated legislation, in t,30,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 by judges in giving decisions.,英国法律制度简介1,Case LawCommon law is the law,31,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 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,Case LawThe effect of preceden,32,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,Reversing,Overruling,Distinguishing,英国法律制度简介1,The binding element in precede,33,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 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.,英国法律制度简介1,Precedents which are not bindi,34,Overruling must be contrasted with reversing.,Overruling affects the 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 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,Overruling must be contrasted,35,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 precedent.,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 indistinguishable are regarded as being “on all fours” with one another.,英国法律制度简介1,Precedents which can be distin,36,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 care.,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.,英国法律制度简介1,Per incuriam (through lack of,37,Rules of Interpretation,The 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.,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 “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.,英国法律制度简介1,Rules of InterpretationThe lit,38,English Courts in general,Classification of the courts,The court of first instance v. the appellate court ( i.e. courts of original jurisdiction 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.,英国法律制度简介1,English Courts in generalClass,39,英国法律制度简介1,英国法律制度简介1,40,The hierarchy of the courts,The European Court of Justice:,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.,英国法律制度简介1,The hierarchy of the courtsThe,41,Parliament:,House of Lords: the judicial power is replaced by a newly established court called the Supreme Court.,House of Commons,英国法律制度简介1,Parliament:英国法律制度简介1,42,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),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),英国法律制度简介1,The Civil CourtsHigh Court and,43,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 50,000,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,英国法律制度简介1,Civil jurisdiction tableCOUNTY,44,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.,英国法律制度简介1,Cases in contract and tort bet,45,