ACCA F 知识点总结

Chapter11. 民法(civil law)和刑法（criminal law ）的划分Civil law: an form of private law ， used by individuals to assert rights against other individualsCriminal law: an aspect of public law to regulate crimes and to punish offenders1. legislation(made by the Parliament)/secondarylegislation( in exercise of law-making powers delegatedby Parliament). [注：Necessity for delegatedlegislation/secondary legislation :more convenient ;can hand over the task of specifying the law in detail to experts] 2. 在case law 中:common law 普通法[created by judgesthrough the application of the principle of judicialprecedent. common law drew on customs/equity law 衡平法:to resolve disputes where damages are not asuitable remedy and to introduce fairness into the legal system.]2. 不同法院管辖事件的类型Chapter2 Chapter2 1. Doctrine of Precedence(遵循先例制度的一般规则): somedecisions made by a court are binding and similar subsequent legal cases should be decided on the basis of the law established in earlier cases.2. 可以创立判例法规则: Supreme Court/Court ofAppeal/High Court;不可以创立:Crown, Magistrates, County Courts cannot create precedent.3. Elements of judicial decision(影响法庭判决的因素):rationdecidendi 判决理由[the reason for the decision]/Obiter dicta 附带说明[statement made by the way, not binding, but merely of persuasive authority]4. 法官又可以因为那些理由拒绝先例(disregarding judicialprecedent): Overrule 取代[the procedure whereby a court higher in the legal hierarchy sets aside a legal ruling established in a previous case]/Reverse 推翻[a procedure whereby a court higher in the hierarchy reverses the decision of a lower court in the same case]/Distinguishing 法官的自由裁决[a precedent is avoided by a judge demonstrating that the material facts of two cases are not the same]5. Rules of Statutory Interpretation(法的解释):①the literalapproach :the literal rule[means that words in the Act should be given their literal and grammatical meaning rather than what the judge thinks they mean./the golden rule :this rule is applied in circumstances where the application of the literal rule is likely to result in an obviously absurd result. ②the purposive approach :the judge should ,where necessary ,look beyond the words of statute to find out the reason/purpose for its enactment,and that meaning should be interpreted in the light of the purpose[Mischief rule :purposive approach的具体表现形式/where a statute is designed to remedy a weakness in the law, the correct interpretation is the one which achieves it.]6.语言处理规则（法律没有追溯力 a statute does not haveretrospective effect）Chapter3 合同法（IMP）1.合同的概念a legally binding agreement enforceable in law2.从要约到承诺是否达成agreement [invitations to treat要约邀请--offer要约--acceptance承诺----agreement]3.Termination of an offer:express rejection/counter off反要约/lapse of time/revocation of an off/death/if the off is suject toa condition,it will lapse on failure of that condition4.Privity of Contract合同相对性原则: the common law doctrinethat only those are party to the contract---have rights or liabilities under the contract/ have the right to enforce the contract,contracts cannot give rights or obligations to othersChapter41.分类标准Express and lmplied terms:某个条款是否经过双方当事人协商同意（agreed by the parties）Condition，warranties and innominate terms 核心，从属和无名条款：根据条款重要性2.免责条款（三观概念）Any clause that attempts to exempt , or limit, the liability of one party for breach of contract or negligence3 test: correctly incorporated into the contract形式正确/worded clearly to exclude the breach措辞清晰/reasonable per statute内容合理Chapter5 1.type of breach⏹Repudiatory breach根本性违约：refusal to perform拒绝履行/failure to perform an entire obligation不履行某项/incapacitation无力履行/breach ofcondition 违反核心条款/breach of an innominateterm违反无名条款⏹Anticipatory breach预期违约：未到合同履行时间，当事人提前说明无法履行；收到预期违约通知可立即追究违约责任，也可等到履行合同时间追究责任Lawful excuses for non-performance开脱责任：performance is impossible因不可预见的事情发生不可履行/尝试履行被拒绝/ the other party make it impossible for him to performance/contract is discharged through frustration情势变更/the party have been agreement permitted non-performance2.Remedies : when a breach occurs, the court has to decidewhat the appropriate remedy should be.3.Liquidated damage违约金：a genuine pre-estimate ofthe loss在订立合同前已经商定了，有利于解纠纷，如果违约金过高（远大于loss）判为惩罚性，则不可执行4.specific performance ：the court directs a party tocomplete their contractual obligations以下几种情况法官不会让合同继续履行：courts cannot supervise法官无力监督履行/personal service/minors involvedChapter6 Tort侵权法A wrongful act against an individual which gives rise to a civil claim.1.过失侵权的4个证明环节（概念标准内容）Negligence:It arises when one person suffers damage or injury though the negligent act(or omission to act)of another person.①Duty of care注意义务(三步走原则)foreseeability合理预见原则关联性原则and fairness of imposing a duty of care公平合理地强加注意义务②A breach of that duty违反注意义务rule:The test for establishing breach of duty is an objective one:a breach of duty occurs if the defendant:”...fails to do something which a reasonable man...would do.”factors to considerprobability of injuryseriousness of the risk造成伤害的严重性and practicability成本可行性practice证明是行业误差范围内persons/professionalsbenefit③The breach of duty caused harm to the claimant违反义务是导致损失的原因but for testbreak in the chain of causation切断因果关系链的要素natural eventof a third party 原侵权人不承担责任of the claimant④The loss ware not too remote主张的赔偿合理Reasonable foresight只赔偿违法者可以合理预见的部分2.抗辩事由①Contributory negligence共同过失（一般只是减少赔偿额，个别情况全部免除）②Volenti non fit injuria同意不生违法（彻底免除）Chapter7 劳动法1.身份判别①Control test :The amount of control that one person had over the other②Integration test不会外包给他人的，不可或缺的③Multiple test/Economic reality testa. The regularity and method of payment报酬支付频率，支付方式b. The ownership of tools and equipment是否提供工具c. The regularity of hours of work工作时间d. The ability to delegate all the work/to provide substitute是否代理2.义务①Common Law Duties-Employers’ common law duties1)Duty of mutual trust and confidence2)To provide work for workers3)To pay wages/remuneration4)To indemnify employee against expenses and losses5)To provide for the care and safety of the employee6)No duty to provide reference when employees leave-Employees’ common law duties1) To obey reasonable and lawful orders2) To act faithfully/duty of faithful service/duty to accountfor all money and property3) To exercise reasonable skill and care in any activity in their role as an employee/reasonable competence to do his job4) Personal service亲自完成交付的责任②Statutory Duties1)Pay and equality不能低于国家平均2) Time off work3)Trade union officials工会组织罢工可以参加，还要给工资4) Every woman has a right to maternity leave and some are entitled to maternity pay5) Health and safety6)Working time:17week,not exceed 48 hours for each 7 days除非员工书面同意多工作7) Flexible workingChapter81.解雇通知时间的计算1m-2Y: not less than 1 week2y-12y:1 week for each year≥12y: not less than 12 week劳动者离职要提前一周通知，合同期满不续则每工作一年折合一个月工资2.自动正当参加非法集合罢工unofficial industrial action/对国家安全有威胁自动不正当怀孕pregnancy/员工参加工会活动/收购并购时的解雇dismissal on transfer of an undertaking/工作存在安全问题/最低工作标准/作息时间/员工在周天拒绝工作3.用人单位解雇不当Chapter9 代理法1.代理关系建立方式Express agreement between the agent and principal达成委托代理协议合同，口头书面皆可Implied agreement默认没有代理协议但默认存在关系Ratification追任代理人先履行合同，事后委托人建立合同关系Without consent of principal 没有征得委托人同意就建立关系necessity/Estoppel2.代理权限（3）Express authority明示代理权限Implied authority默认代理权限Apparent/ostensible authority看起来有代理权限，实际上并没有Chapter10 合伙企业法1.合伙企业(概念):the relationships that subsists betweenpersons carrying on a business in common with a view to profit. standard partnership is not s separate legal entity and its partners have full personal liability for the debts of partnership.2.Termination/dissolution合伙企业解散的债务处理:payingoff external debts/repaying to the partners any loans or advances/repaying the partner’s capital contribution/anything left over is then repaid to the partners in the profit sharing ratio .3.Termination/dissolution合伙企业解散的条件:expiry of afixed period stipulated in the partnership agreement/completion of the express purpose for which the partnership was formed/partner gives notice to leave/a new partner is admitted into the partnership/death or bankruptcy of partner/happening ofany event which makes company can’t carry on/on application by a partner the Court may decree a dissolution of the partnership4.Sole trade宏观特征:is not a separate legal entity, theperson and business are viewed as the same legal entity5.Authority合伙人的代理权限:express authority明示代理权限[from partnership agreement]/implied authority默示代理权限/apparent authority表面代理权限[已经退伙但其他人不知道]6. A partner’s liability usually extends to the period forwhich were actually a partner of a firm. 合伙人只对担任合伙人期间合伙企业产生的债务有清偿责任7.Limited Partnership(LP)特征:the partnership must beregister with the Company Registry/one or more of the partners must bear full,unlimited liability/partners with limited liability may not take part in management and cannot usually bind the business in contract/limited partner cannot withdraw their capital8.Limited Liability Partnership(LLP)特征:must be registeredwith the the Registrar of Companies, with formation documents signed by at least two members/has a legal personality separate/ the name of partnership must end with LLP/partners are known as members, of which there must be at least two/LLPs must file annual returns and accounts/all members are agents of LLP/all members’liability is limited/a designated member is responsible for administration and filing/LLP is not subject to corporation taxChapter121.设立pre-incorporation contacts谁来履行？Promoters发起人2.交什么文件①Memorandum of association公司章程（89年）②Application for registration注册申请书③A statement of capital and initial shareholdings关于公司资本坏人原始持有股份的状况说明④Statement of compliance遵从声明⑤A statement of company’s proposed officers拟任命谁为公司管理人员⑥A copy of any proposed articles of association自拟公司章程（06年）不是必须提交，没交使用默认模版3.2个证书的功能①Certificate of incorporation注册许可证Private company 只需要注册许可证，是形式审查②Trading certificate营业许可证Public company需要两个证，申领到注册许可证后一年内要申领到营业许可证，否则强制清算，是实质审查share capital is at least ￡50,000(允许股东分批缴纳)least one quarter of the nominal value of the allotted share capital has been paid up(minimum ￡12,500)首次不低于票面的1/4，为确保一开始不会有资金困难of promoters’ expenses设立费用具体怎么产生statement of compliance in respect of payment of nominal values and share premium4.章程修改的程序和内容-Contentsa. Directors’ powers and responsibilityb. Decisions making by directorsc. Appointment of directorsd. Organization and conduct of general meetingse. Issue and transference of sharesf. Payment of dividendsg. Exercise of members’ rights-Alteringa. Passing a special resolution通过股东会的特别决定，3/4以上同意批准b. Providing the alteration has been made “bona fide in the interest of the company as a whole”内容符合全体股东的意愿5.各个公司名称缩写代表含义-Ltd：Limited-plc：public limited companyChapter131.capital的分类2.普通股优先股的概念和差异3.Bonus issue红利股发行The capitalization of the reserves if a company by the issue if additional shares to existing shareholders, in proportion to their holdings. Such shares are normally fully paid-up with no cash called for from the shareholders4.Share premium概念shares may be issued at a price above their nominal value, the difference between the issue price and the nominal value is a share premium用途the issue of fully paid bonus share/writing off the preliminary expenses of company formation/writing off the discount on the issue of debentures/repurchase of debentures at a premiumChapter11 公司法The consequences of separate legal personality for the company are as follows:(1897年案例引出的规则）1: members' liability is limited.2: perpetual succession become possible as the company will need to be formally wounded-up.3: the company itself can own property.4 :the company can use, and be sued in its own name.Types of company (公司的分类）。