公司法和商法(双语)讲义 第2章Corporate and Business Law Chapter 2

Sources of English lawOverviewSOURCESCase law Statute EuropeCommon Equity Primary Secondary Primary Secondary law1 Sources of law(a) Common law(b) Equity(c) Statute (legislation) including delegated legislation(d) European Union Law2 Common law and equity2.1 This is a system of law based upon decided cases. Legal rules (initially created by judges whenhearing cases) are followed by judges in subsequent like cases.It developed after the Norman Conquest.2.2 Initially only common law rules were derived from cases. The aim of common law was certainty.However various problems within the common law system resulted in the development of anotherkind of case law called equity. Equity sought to address some of the problems contained in thecommon law system. Its aim is fairness.2.3 Amongst the common law problems were inadequate remedies, a failure to recognise trusts and areluctance to allow new causes of action to develop.2.4 At first common law and equity operated as two distinct systems of law with their own independentcourt and judges. Given that equity is based on fairness however it was eventually decided that in the event of conflict between the two systems equity should prevail.2.5 The two systems have now been merged together. In practice therefore, if you seek a remedy in thecourts today, the court will look first to the common law. If the common law can deal with yourproblem adequately there will be no recourse to equity. If the common law is unable to dealadequately with the problem the court will look to equity.2.6 Equity is therefore referred to as to a supplement to the common law.2.7 The operation of equity is entirely discretionary whereas common law applies automatically.2.8 Maxims:'He who comes to equity must come with clean hands.''Equity does not suffer a wrong to be without a remedy.'3 Statute (primary law)3.1 Acts of Parliament:Created by parliament. All new statutes should be compatible with HRA 98. Courts cannot strike out an Act of Parliament.Procedure:Green paper: Discussion documentWhite paper: Statement of policy(a) First readingNo debate - Bill is introduced to the timetable of the house.(b) Second readingGeneral debate and vote.(c) Committee stageBill is scrutinized and amendments suggested.(d) Report stageAmendments reported back to the House.(e) Third readingBrief debate and vote.(f) Same procedure in other House(House of Lord's has power to amend and delay passage of Bill: Parliament Acts 1911-1949).(g) Royal assentStudy point: Ensure you know what happens at each stage.OverviewDELEGATED LEGISLATIONDelegated Types Controls Advantages Disadvantages bodies3.2 Delegated Legislation: (Secondary law)Created by persons/bodies to whom parliament has delegated powers e.g. government ministers, local authorities, Inland Revenue and Customs and Excise. Delegation made possible by an'Enabling' Act.(a) Types:- Orders in Council- Bye-laws- Statutory instruments- Acts of devolved assemblies(b) Controls:- Parliamentary: House of Commons committee on statutory instruments- Statutory instruments must be laid before parliament prior to enactment although some require positive parliamentary approval- Judicial: Courts may declare them "ultra vires" (beyond capacity) (unlike Primary Acts). They must be compatible with HRA 98.- Ministerial: bye-laws must be approved by a minister(c) Advantages:- saves time- technical and local expertise- allows for swift alterations in the law to keep pace with changing social and historical conditions(d) Disadvantages:- lack of democratic accountability- attack on concept of parliamentary sovereignty- concentrates power in the hands of civil servants- complexity and bulk- can be attacked in courts which may lead to uncertainty.Study point: Revisit this area having noted the impact of HRA 98 in Chapter 4.4 European community lawOverviewEuropean community Law4.1 Forms part of UK law by virtue of European Communities Act 1972Institutions of the Union:(a) European Court of JusticeECJ is the final authority on community law.(b) Council of MinistersThe Council is made up of ministers from Members States.The Council together with the Parliament is responsible for the adoption of legislationproposed by the commission.(c) The CommissionMade up of commissioners from Member States. They propose draft legislation. Also ensuretreaty obligations observed can refer cases to ECJ.(d) The European ParliamentMade up of directly elected members. It is an advisory and debating body which with theCouncil of Ministers bring law into effect.Study point: Ensure you can succinctly describe the function of each institution.4.2 Direct applicability and direct effectCommunity law which is directly applicable in member states comes into force without any act ofimplementation by members states.Law has direct effect if it confers rights and obligations directly on individuals.4.3 Types of European LawPrimary Law: that contained in the Treaties.Secondary Law:(a) Regulations (directly applicable)These are binding and enforceable from the time of their creation. Seek to give effect toTreaty aims. Take effect uniformly through out the EU.Failure to implement a directive within the specified time period, or failure to implement itcompletely may allow individuals to rely on the directive even though it is not implementedthrough national legislation. Such action can only be taken against the state or emanation ofthe state.(b) Directives (not directly applicable)Statements of principles which seek to harmonise EU laws, but left to member states to alternational law so as to achieve these aims within a specified period.(c) Decisions (binding only on recipient states and individuals to whom they are addressed).These are decisions relating to the operation of E.U. laws and policies.4.4 Impact on Parliamentary Sovereignty?(a) Parliamentary sovereignty(i) Parliament is the prime law maker. It can overrule all other sources of law includingprevious statutes.(ii) Parliament cannot restrict a future parliaments’ ability to change the law.(iii) The courts must apply statute even if they think the law operates unfairly.(b) Conflict between Parliamentary Sovereignty and membership of the EU(i) A directive may require Parliament to change the law.(ii) A regulation may be passed which conflicts with an existing Act of Parliament.(c) Points to bear in mind(i) The UK is fully represented in all the EU’s institutions.(ii) UK ministers sit on all council meetings and vote on all proposed law.(iii) Ultimately, Parliament could repeal the ECA 1972.。