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◇ General survey Legal system + Effect of law on business operations

◇ General survey Legal system + Effect of law on business operations. ◇ Business organizations Characteristics + Choice + Formation + Corporate governance. ◇ Business contract Formation + Terms + Discharge + Breach & remedy +Sales contract + Employment contract. ◇ Business liability

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◇ General survey Legal system + Effect of law on business operations

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  1. ◇ General survey Legal system + Effect of law on business operations ◇ Business organizations Characteristics + Choice + Formation + Corporate governance ◇ Business contract Formation + Terms + Discharge + Breach & remedy +Sales contract + Employment contract ◇ Business liability General + Extent +To community & state + To Creditors + Shareholders and directors’ liability + Partners’ liability

  2. ○ Objective: (1) Transnational legal service (2) Lawfully manage business organizations (3) Do business in common law jurisdiction

  3. Teaching: • Lecture (English) • (2) Video (Cases) • (3) Panel discussion

  4. ○ Timing: • Week 1-16： lectures • (2) Week 17—18 ： Tutorial • (3) Week 19—20： Exam • ○ Textbook: • Business & Law, MacIntyre, Financial Times Pitman Press • (2) Reference, China’s Commercial Law, Law Press(2003)

  5. ○ Evaluation: • Total score= class performance(30%) + final exam (70%) • (2) Four types questions: • Objective model, Best choice(10%) • Objective model, Brief answers (50%) • Subjective model, analytical questions (20%) • Subjective model, case analysis (20%)

  6. 1 Meaning and Classification

  7. 1.1 Meaning (1) Scope : England + Wales; Scotland +Northern Ireland: different (2) Case law tradition; Partially codified (3) Purpose: property protection + public order control

  8. 1.2 Classification 1.2.1 Public and private law (1) Public law: conduct of government and relations between government and individuals (2) Private law: relations between private individuals or groups 1.2.2 Substantive and procedural law (1) Substantive law: rights and duties of each person in society (2) Procedural law:protection and enforcement of them 1.2.3 Civil law and criminal law

  9. Criminal Civil Purpose Punishment Compensation Parties State v defendant Plaintiff v defendant Outcome Guilty or not guilty Plaintiff wins or loses Consequence If convicted, then sentenced If he wins, obtains a remedy Courts Magistrates, or Crown court County or high court Costs Legal aid; If convicted, pay costs Legal aid; Loser pays all costs Facts Magistrate or jury Judge Law Judge Judge Standard of Proof Beyond reasonable doubt On balance of probability Example Murder, theft Contract, property

  10. 2 Sources of law 2.1 common law and equity law 2.1.1 Common law: law made by judges,judicial precedent, stare decisis (1) local customs, before Norman Conquest; King Henry Ⅱ unify the law: uniform law (2) Problems: Obsession with procedural details Limited remedies Bias: bribery and corruption 2.1.2 Equity law courts of chancellor, courts of equity; merger of the two in 1873-1875 by the Judicature Acts Courts always have discretion as to grant of equitable remedy

  11. Maxims of equity Equity will not suffer a wrong to be without a remedy He comes to equity must come with clean hands Delay defeats equity (doctrine of laches) Equity looks to intent rather than the form Equity acts in personam: remedy only enforceable against individual Common law remedy: enforceable against anyone

  12. 2.2 Statutes law: legislation and delegated legislation 2.2.1 Meaning (1) by parliament, state or provincial legislature, or municipality (2) Superiority: overrides common law dealing with same point (3) common law and statute are now closely related (4) administrative law: system of government regulations and sanctions

  13. 2.2.2 Act of parliament (1) Functions Enact new law Authorize tax Codification Consolidate existing statutes (2) Bills Public bill: whole or certain class of people Private bill: relate to particular persons or places Hybrid bill:

  14. (3) Procedures: Public bill First reading Second reading Committee stage Report stage Third reading Royal assent: it is always given by the royal, no rejection 2.2.3 Delegated legislation 2.2.3.1 Types (1) Orders in council: issue by monarch by the advice of Privy Council Privy council : nominal body

  15. (2) Statutory instruments: rules, regulations and order by ministers (3) By-laws: by local authorities or other bodies (4) Professional regulations: law society; accountant association 2.2.3.2 Main advantages Parliamentary time is saved Adaptive to social changes Especially useful for areas requiring expertise: tax, defense, medical Useful for emergent situation 2.2.3.3 Controlling delegated legislation Parliament has final control Consultation of interests

  16. Judicial review: content + procedure Daymond v South West Wales Authority(1976) Claimant’s property was not connected to public sewers, but defendants demanded charges as per their power of levying charge Court: Ultra vires Raymond v Honey (1983) Prisoner posted application to court seeking order. The prison’s governor stopped the post. Court: Ultra vires, not enpowered to deny prisoner’s access to justice Boddington v British Transport Police (1998) Railway company banned smoking in trains, B refused to obey, and was convicted. Court: the ban is legitimate!

  17. 2.3 EU law 2.3.1Primary legislation: Treaty of Rome(1957), Treaty of Amsterdam(1999), treaty on EU UK accession: 1973 2.3.2 Secondary legislation: (1) regulations: directly applicable (2) directives: not immediately binding, but require domestic legislation in reasonable time (3) decisions: immediately binding upon those who are addressed

  18. 2.3.3 Principal EC law making and enforcement bodies Council of ministers: law-making power EC: policy making powers European parliament: consultative body ECJ: action between commission and members; ruling on interpretation of EC law by way of reference! ECJ ruling binds national courts!

  19. 3 Doctrine of binding precedent and statute interpretation 3.1 Doctrine of binding precedent 3.1.1 Types of precedent Binding precedent, persuasive precedent (1) Ratio decidendi: reason of decision, binding obiter dicta: other matters, not binding (2) Material facts: Binding: material facts must be same Persuasive: material facts are similar (3) Hierarchy of court House of lords: bind all other courts

  20. Court of appeal:

  21. 3 Court system

  22. 3.1 UK Court System (1) single government; not federal structure (2) courts of first instance: original jurisdiction county court: contract and tort case less than £25000 high court: over than £50000; shared jurisdiction: between £25000and 50000 (3) appeal to House of lords and leapfrog: permission needed

  23. 3.2 US Court System (1) Full system of federal courts (2) Three-tier structure: district court(first instance), court of appeals, supreme court (3) State level: three-tier structure in general, trial court, intermediate appellate court, and final appellate court (4) Federal judges are centrally appointed; many state judges are elected by popular votes

  24. US state court system State Supreme Court Intermediate appellate courts Superior court Probate Court County Court Municipal courts

  25. 9 judges: 11 presidents since World War II have appointed 25 SC members, Republicans 15, Democrats 10.

  26. 3.3 Canadian Court System ◇ 4 levels of court: ○ Provincial courts, handling the great majority of cases ○ Provincial and territorial superior courts dealing with more serious crimes and also taking appeals from provincial court judgments. Federal Court Trial Division is on the same level responsible for different issues. ○ Provincial courts of appeal and the Federal Court of Appeal ○ Highest level is occupied by the Supreme Court of Canada ◇Canadian supreme court: appeals from provincial and federal system ◇ All judges are centrally appointed and paid

  27. Canadian federal court system Canadian supreme court Canadian federal court Canadian tax court

  28. Canadian provincial court system Canadian Supreme Court Court of appeals Small Claims Court District Court

  29. 4 Legal profession

  30. 6.1 UK and US: solicitors and barristers (1) solicitors: office lawyers legal aspects of business and family contracts,deeds,wills,incorporation etc. preparation for trial: pleadings, interview,notes appearance in some lower courts (2) barristers: litigation lawyers take briefs; opinions on potential litigation 6.2 Canada (1) lawyers are both solicitors and barristers (2) bar on provincial basis: a must for barrister to practice law membership in one province cannot practice in another automatically membership in one province may appear before Supreme Court

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