business law

Chapter 1一．What is law?Law is defined differently according to the particular jurisprudential school or methodology within which one is operating.E.g. schools of legal sociologypositivist schools of jurisprudence—positive law (p6)schools of natural law jurisprudence -----natural law (p6)Law, morality and society (p7)1.Definition of law:①The law is a body of principles established by parliament and by the courts. (textbook)②The law is a system of rules and guidelines which are enforced through social institutions to govern behavior.③Law is the body of rules for human conduct that is enforceable by the coercive power of the state.④Where the person is found guilty of a criminal offence, the court might order that they pay a fine or sentence them to prison.⑤If there is a civil case the court may give what is called a remedy to the person who wins the case---for example, may order the other person to pay money in compensation.2.The functions of law①Controlling social relations and behavior;②Providing the machinery and procedures for the settlement of disputes;③Protecting individuals by maintaining order;④Preserving the existing legal system;⑤Protecting ownership and enjoyment of the use of property;⑥Reinforcing and protecting the family;⑦Facilitating social change.二．What is legal system?1.The legal system is the framework in which the law operates.2.In general, legal systems can be split between civil law and common law systems.3.A third type of legal system—accepted by some countries without separation of church and state –is religious law.4.However, the legal system of each country is shaped by its unique history and so incorporates individual variations.三．Civil law1.Civil law is the most widespread system of law around the world, it is also sometimes known as Continental European law.2.The central source of law that is recognized as authoritative are codifications in a constitution or statute passed by legislature, to amend a code.3.Civil law today, in theory, is interpreted rather than developed or made by judges. Only legislative enactments (rather than legal precedents, as in common law) are considered legally binding.4.The typical countries are: France, Italy, Germany, Greece, Denmark, Japan, etc.四．Common lawmon law and equity are systems of law whose sources are the decisions in cases by judges. Alongside, every system will have a legislature that passes new laws and statutes. The relationships between statutes and judicial decisions can be complex. (textbook p4)mon law developed in England, influenced by Anglo-Saxon law and to a much lesser extent by the Norman conquest of England which introduced legal concepts from Norman law,mon law was later inherited by the Commonwealth of Nations, and almost every former colony of the British Empire has adopted it.4.The doctrine of stare decisis or precedent by courts is the major difference to codified civil law systemsmon law is currently in practice in Ireland, most of the United Kingdom (England and Wales and Northern Ireland), Australia, New Zealand, Bangladesh, India (excluding Goa), , Pakistan, South Africa, Canada (excluding Quebec), Hong Kong, the United States (excluding Louisiana) and many other places.五．Australian Legal SystemThe institutions, or branches of government, thatcollectively constitute the legal system are:1. the Legislature---the Commonwealth Parliament, State Parliament, Territory Assemblies and local authorities that make the statute law;2. the Executive---the government departments---Federal, State and Territory ---that apply, administer and implement the laws; and3. the Judiciary---the Commonwealth, State and Territory courts and tribunals that apply and interpret statute law, develop rules of common law and resolve disputes.4.Other components of the legal system include the law enforcement agencies such as the customs, prisons, health inspectors and the police which enforce the laws and play an important part in the judicial process.5.Though strictly not part of the legal system, the legal profession also plays an important part in the administration of law and the operation of the legal system.六．The judicial branch1.Courts exist at two levels, Commonwealth and State.2.The Commonwealth courts have jurisdiction to hear matters arising under Commonwealth law, while the State courts hear matters arising under state law.3.The hierarchy of Commonwealth court (from top to bottom):High Court of AustraliaFederal Court of AustraliaFederal Magistrate Court of Australia4.Although the names of the courts differ slightly from State to State, most have a hierarchy as follows:Court of AppealSupreme CourtDistrict CourtMagistrate Court七．Jurisdiction of a court1.The jurisdiction of a court is the authority it has---in other words, what types of case it is able tohear.2.P17-22八．The legal subjects1.All legal systems deal with the same basic issues, but jurisdictions categorize and identify its legal subjects in different ways.2.A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property).Other classifications:①International law and national, domestic and municipal law;②Public law and private law③Criminal law and civil law④Substantive law and procedural law3.International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects", although there are many further disciplines. （一）International law1.International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organizations.2.Public international law concerns relationships between sovereign nations.3.Conflict of laws (or "private international law" in civil law countries) concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied.（二）Constitutional and administrative law1.Constitutional and administrative law govern the affairs of the state.2.Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state.3.Administrative law is the chief method for people to hold state bodies to account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law.（三）Criminal law1.Criminal law, also known as penal law, pertains to crimes and punishment. It thus regulates the definition of and penalties for offenses found to have a sufficiently deleterious social impact but, in itself, makes no moral judgment on an offender nor imposes restrictions on society that physically prevents people from committing a crime in the first place.2.Criminal law offenses are viewed as offenses against not just individual victims, but the community as well（四）Contract lawContract law concerns enforceable promises, and can be summed up in the Latin phrase pasta suint servant (agreements must be kept).（五）Tort lawTorts, sometimes called delicts, are civil wrongs. To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right. A simple example might be accidentally hitting someone with a cricket ball.（六）Property law1.Property law governs valuable things that people call 'theirs'. Real property, sometimes called 'real estate' refers to ownership of land and things attached to it. Personal property, refers to everything else; movable objects, such as computers, cars, jewelry or intangible rights, such as stocks and shares.2.Business law: is made up of the laws that set out the rights, duties and obligations of people in business.3.Equity law: equity means the rules originally developed and administered by the Court of Chancery (equity court) which supplement common law rules and procedures.九．Sources of the law1.Parliamentary law: enacted law (is law made by parliament to give effect to some public policy and is known as statute law, legislation or Acts of Parliament)2.Judge-made law: unenacted law (is the rules made by judges when they are deciding court cases or giving the reasons for their decisions)3.Acts: legislation passed by the Commonwealth, state and territory legislatures.4.Regulation: it is simple not possible for legislatures to update the details of the law, and so it is common for Acts of commonwealth or State Parliament to delegate the power to make legislation to government ministers. Such pieces of delegated, or subordinate , legislations are called regulations.5.Ordinance: in addition, state parliaments delegate law-making power to local authorities, which produce delegated legislation called Ordinances or Local Laws.（一）The feature of statute law:1.It is a superior source of law to common law and over-rides it if there is an inconsistence.2.It affects everyone and is presumed to be prospective ---in other words, only affects events arising after the legislation comes into effect.（二）The doctrine of precedent:1.A court is bound by an earlier decision if that decision was on the same material facts and by a higher court in the same hierarchy.2.Ratio decidendi (reason for the decision p43) and obiter dictum (statement by the way, p45, these are things written by the judge which were not necessary for deciding the case )。