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The Courts in Great Britain
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Московская финансово-промышленная академия
Кузнецова О.С.
Гитович Р.А.
English for students of Law
Москва 2004
Кузнецова О.С., Гитович Р.А. English for students of Law / М., Московская финансово-промышленная академия, 2004. с. 124.
© Кузнецова О.С., 2004
© Гитович Р.А., 2004
© Московская финансово-промышленная академия, 2004
Contents
Unit 1. The Structure of English legal System.. 4
Unit 2. Business Organisations. 11
Unit 3. Business Organisations. 22
Unit 4. Business Organisations. 31
Unit 5. Shares and Shareholders. 39
Unit 6. Consumer Protection. 44
Unit 7. Bankruptcy. 49
Unit 8. The Law of Agency. 51
Unit 9. The Law of Tort 56
Unit 10. The Law of Contract 60
Unit 11. Contracts of Employment 64
Unit 12. The Nature and Classification of Business Property. 79
Unit 13. The Nature of Security. 91
VOCABULARY.. 97
Unit 1. The Structure of English legal System
Words to be remembered.
liability – ответственность
overlap – частично совпадать
extra-gratia (лат.) – по милосердию, из милости
sue – предъявлять иск
to sue for damages – предъявлять иск на возмещение убытков
natural person – физическое лицо
legal person – юридическое лицо
domicile – постоянное место жительства
allegiance – гражданство
alien – иностранец
matrimonial proceedings act – закон, действующий в сфере брачных
отношений
tortiously liable – ответственный за правонарушение
tort – деликт, гражданское правонарушение
charted – привилегированный, отмеченный грамотой
statutory – статутный, предусмотренный законом
case law – прецедентное право
legislation – законодательство
European Community Law – Европейское законодательство
Binding precedent – прецедент юридического обязательства
Ratio decidendi (лат.) – мотивы решения
obiter dictum (лат.) – мнение или высказывание судьи, не носящее
нормоустановительного характера
persuasive – использующийся с целью убеждения
overrule – аннулировать, отклонить, считать недействительным
per incuriam (лат.) – по невнимательности
dissenting judgement – особое мнение
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equity – справедливость
equitable right – право, основанное на справедливости
common law – общее право
discretionary – представленный на усмотрение
lease – аренда
mortgage – ипотека, залог, кредит, вклад
fraud – обман, мошенничество
intra vires – в пределах компетенции, в пределах полномочий
promulgate – обнародовать
binding – имеющий обязательную силу
supremacy – верховенство
unconditional – безусловный
unqualified – безоговорочный
precedence – старшинство, приоритет
discretion – свобода действия
ruling – постановление (суда)
judgement – приговор, судебное решение
will – завещание
murder – убийство (заранее обдуманное)
rape – изнасилование
Text for reading.
The Classification of English Law
In England the main distinction is between criminal and civil law. Criminal and civil liability overlap but criminal law exists to punish criminals and, although compensation payments are made under the Powers of Criminal Courts Act 1973, and the Criminal Injuries Compensation Scheme 1964 makes ex – gratia payments to victims of violent crime, these will generally sue in civil law for damages.
Legal Personality
Legal rights attach to legal persons; these can be (i) natural and (ii) artificial persons or corporations.
Natural persons
Important for natural persons are nationality and domicile, gender and race. Nationality determines a person’s public rights, such as allegiance, the right to vote and to sit in Parliament, although the nationals of one member state of the European Community have equal rights with nationals in other member states. A person will normally have only one nationality but may have dual nationality and can be stateless. Civil law generally treats nationals and aliens alike.
Domicile determines the regulatory legal system of a person. All people are domiciled somewhere and can only have one domicile at any given time. There are three types of domicile: (i) domicile of origin, (ii) domicile of choice and (iii) dependent domicile. Domicile of origin attaches to the person at birth. Domicile of choice arises where a person of full age and capacity establishes a permanent home in a country with the intention of remaining there. Dependent domicile was relevant for minors and married women whose domicile was dependent upon their parents or husband. The Domicile and Matrimonial Proceedings Act (DMPA) 1973 now allows married women to acquire a domicile separate from their husband, and minors to acquire an independent domicile at 16.
Corporations
The principal corporations are composed of a number of persons and classifiable as (i) chartered, (ii) statutory and (iii) registered corporations. Chartered corporations are created by royal charter. The earliest trading corporations were created in this way: The Hudson Bay Company, The East India Company. Today chartered corporations comprise professional bodies such as the Institute of Chartered Secretaries and Administrators (ICSA). The older universities are chartered corporations. Statutory corporations are created by special Act of Parliament. Local authorities are statutory corporations, as are the nationalised industries, although their number has been reduced through privatisation. Registered corporations are incorporated under the Companies Act 1985 and are the normal trading companies.
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Unincorporated associations
These have no legal personality and their property is jointly owned by the members who are also contractually and tortiously liable. Special rules relate to trade unions, employers’ associations and partnerships.
The Sources of English Law
The major sources are (i) case law, (ii) legislation and (iii) European Community law.
Case law
A statement of the law made by a judge in deciding a case establishes a precedent and will be relevant for future similar disputes depending on the status of the court. The doctrine of binding precedent depends on: (i) a court hierarchy and (ii) accurate and efficient law reporting, which were only fully achieved by the end of the nineteenth century.
The binding element in legal decisions.
Reports detail facts, names of parties, a statement of the law forming the basis of the decision and the judgement. Only the statement of law forming the basis of the decision is binding. Cases may contain other statements of the law. The binding statement is the ratio decidendi (the reason for the decision). Other statements are merely persuasive and are called an obiter dictum (a statement of law made by the way).
A ratio decidendi is a statement of law applied to the legal problems raised by the material facts of the case as identified by the court upon which the decision is based. There are two types of obiter dictum: (i) a statement of law based upon facts which were either not found to exist or, if found, were not found to be material; or (ii) a statement of law which, although based on material facts of the case as identified by the court, does not form the basis of the decision. The first is a statement of law based upon a hypothesis. The second is a dissenting judgement in a court where there is majority decision.
Precedents which are not binding.
These include: (i) persuasive precedents; (ii) precedents which have been overruled; (iii) precedents which have been distinguished; and (iv) per incuriam precedents.
Equitable rights and remedies are discretionary, not claimable 'as of right' as with common law rights and remedies. Equity looks beyond legal formalities and enforces the intentions of the parties as in the recognition of leases and mortgages lacking the formalities required by the common law. Equity recognises agreements to create leases or mortgages as creating rights between the parties which can be specifically enforced by a decree requiring the drawing up of a formal lease or mortgage and developed a wider notion of fraud restraining people from doing something which would be inequitable; that is, unfair although legal.
The main value of equity today is that judges use their equitable discretion to avoid the rigidity of the doctrine of binding precedent.
Legislation
Legislation, the major source of law, exists in two forms: direct legislation in the form of Acts of Parliament and delegated legislation, in the form of by-laws, statutory instruments andOrders in Council. 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. In principle, no statute can limit the legislative freedom of future parliaments but major limits on this sovereignty arise through Britain's membership of the European Community.
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Delegated legislation is enacted by bodies authorised by Parliament. Delegated legislation must be within the powers (intra vires) of the body enacting it, otherwise it is ultra vires and illegal. By-laws are passed by local authorities and other authorised bodies. Statutory instruments are made by government departments under authority given by direct legislation and introduce detailed regulations under the principal Act. This speeds up the legislative process by enabling regulations to be made and altered quickly without placing them before Parliament. An Order in Council is an order promulgated by the government but through the Privy Council.
The Courts in Great Britain
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