Московская финансово-промышленная академия
Кузнецова О.С.
Гитович Р.А.
«English for students of Law»
Part I.
Business Organisations
Москва
2011
Содержание
Unit 1. The Structure of English legal System
1. Words to be remembered.
2. Text for reading.
3. Questions.
Unit 2. Business Organisations
1. Words to be remembered.
2. Text for reading.
3. Questions.
4. Find the following sentences in the text.
Unit 3. Business Organisations
1. Words to be remembered.
2. Text for reading.
3. Questions.
4. Find the following sentences in the text.
Unit 4. Business Organisations
1. Words to be remembered.
2. Text for reading.
3. Questions.
4. Find the following sentences in the text.
Unit 5. Shares and Shareholders
1. Words to be remembered.
2. Text for reading.
3. Questions.
4. Find the following sentences in the text.
Unit 6. Consumer Protection
1. Words to be remembered.
2. Text for reading.
3. Questions.
4. Find the following sentences in the text.
Unit 7. Bankruptcy
1. Words to be remembered.
2. Text for reading.
3. Questions.
4. Find the following sentences in the text.
Vocabulary
Latin terms
Unit 1. The Structure of English legal System
1. Words to be remembered.
liability – ответственность
overlap– частично совпадать
extra-gratia(лат.) – по милосердию, из милости
sue– предъявлять иск
tosuefordamages– предъявлять иск на возмещение убытков
natural person – физическое лицо
legal person – юридическое лицо
domicile– постоянное место жительства
allegiance– гражданство
alien– иностранец
matrimonialproceedingsact– закон, действующий в сфере брачных
отношений
tortiouslyliable– ответственный за правонарушение
tort– деликт, гражданское правонарушение
charted– привилегированный, отмеченный грамотой
statutory– статутный, предусмотренный законом
caselaw– прецедентное право
legislation– законодательство
EuropeanCommunityLaw– Европейское законодательство
Bindingprecedent– прецедент юридического обязательства
Ratiodecidendi(лат.) – мотивы решения
obiterdictum(лат.) – мнение или высказывание судьи, не носящее
нормоустановительного характера
persuasive– использующийся с целью убеждения
overrule– аннулировать, отклонить, считать недействительным
perincuriam(лат.) – по невнимательности
dissentingjudgement– особое мнение
equity– справедливость
equitableright– право, основанное на справедливости
commonlaw– общее право
discretionary– представленный на усмотрение
lease– аренда
mortgage– ипотека, залог, кредит, вклад
fraud– обман, мошенничество
intravires– 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
2. 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.
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 and Orders 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.
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
European Community Law
The sources of Community law are legislation and case-law. The legislation is primary for certain Treaty provisions whereas Regulations, Directives and Decisions of the Council and Commission under Article 189 of the EC Treaty are secondary or delegated legislation. In addition the decisions of the European Court of Justice (ECJ) and the Court of First Instance (CFI) are binding over the national courts of member states.
The direct applicability and direct effectivity of Community law
Britain is bound by the legislation emanating from the Community institutions. This is recognised in European Communities Act 1972 (ECA 1972).
The ECA 1972 provides for the supremacy of Community legislation by providing that Acts of Parliament have effect subject to Community provisions. In addition, English courts must interpret Community legislation using European methods.
A provision of Community law is directly applicable if it becomes part of the law of the member state automatically without needing to be incorporated into national law by direct or indirect national legislation. It is directly effective if it creates rights which are enforceable by the courts of a member state.
Community provisions which are only directly effective can only be enforced by a person against the member state or a state organ, not against other persons. They are therefore considered as having vertical direct effect since the person is enforcing the provision vertically against the state. Provisions have horizontal direct effect where they can be used as the basis of an action by one subject against another.
Legislation
Treaty provisions
The ECJ has established that some treaty provisions are directly applicable and directly effective both horizontally and vertically. Such provisions must: (i) not simply concern inter state relations, (ii) be clear and precise, (iii) be unconditional and unqualified; and (iv) not leave any substantial latitude or discretion to member states.
Regulations
Defined as having ‘general application’ and ‘being binding in [their] entirety and directly applicable in all member states’, regulations are used to introduce major changes in Community law applicable throughout the Community. They bind all member states and take precedence over all national legislation. A person living in a member state can enforce rights guaranteed by a regulation in the national courts of the member state.