Pravni fakultet Sveučilišta u Mostaru 2

ponedjeljak, 08.09.2008.

ENGLESKI JEZIK-ZADACI

Homework



1. There are four ways on which the term common low is used, and there are:

It is law which is common to the whole country – national law in contrast to local law.
It is law which is based on judicial decision ( case law ) in contrast to the law which is made by Parliament ( statute law ).
It distinguishes the common law legal system based on precedent form civil law jurisdiction based on civil codes.
It comprises the rules developed by the common law courts in contrast to the rules developed by the court of equity.

2. Countries with a legal system based on civil code are countries of Wesern Europe and Latin Ameica.

3. Civil law regulates relationship between individuals or bodies.
Criminal law regulates relationship between the state and individual people and bodies.
e.g for civil law: legal action to recover loss
e.g. for criminal law: murder, rape, robbery



4. Before the Norman conquest in 1066, the legal system was decentralised which mean that each court (local court, the borough, shire and hundred courts) applied its own local customary law. The Norman kings have adopted this system by allowing the barons to whom a region had been given to run the court in the region. But there was a fear for kings because barons become provincial princes rivalling the power of the King and this was main reasons for Henry II to judicial centralisation. He create a permanent royal court of King’s Bench sitting in London also he ordered judges of a central court, to travel round of the regions hearing cases. Central control over the law was ensured by the procedure under which the legal issue in a case could first be decided by the royal court in London, and then the legal ruling would be taken by the travelling judge. This strategy established common law which is still used to describe judge-made system of law in UK.

5. Equity worked „behind the scenes“ of the common law action; the common law principles were theoretically left intact, but by means of this intricate mechanism they were superseded by equitable rules in all cases of conflict or variance. The result justified the sarcasm of the critic who said that in England one court was set up to do injustice and another to stop it.

6. The principal court for the administration of equity is the Court of Chancery whit Chancellor on its head.

7. One of the most important fatures is equity which distinguishes it from common law is the maxim that equitable remedies are discretionary.

8. In a case of conflict between a rule of equity and a rule of common law, equity will prevail.

9. Three equitable maxims are:
- Equity will not suffer a wrong to be without a remedy.
- Equity follows the law.
- He who comes to equity must come with clean hands.

10. The significance of the Judicature Act is that the old courts of common law and the Court of Chancery were abolished, and in their place was established a single Supreme Court of Judicature. Also, it were abolisheda common injunctions.


11. There are many ways which the law can be classified. There are difference between criminal and civil law and substantive and procedural law.

12. Organs of government are :monarch(in some countries), the executive, the legislative, and the judiciary.

13. There are two aspects to the doctrine of parliamentary sovereignty:
a) Parliament may enact any law it wishes, and
b) No authority, including the court, has the power to question the validity of the legislation.

14. The theory of the separation of powers was developed by Montesquieu.He said: “When the legislative and executive powers are united in same body or same body of magistrates, there can be no liberty.

15. The court can control the actions of the executive, but it is important to know that the courts have no power to review the merits of executive action, which mean that they are not concerned whit the question “is this action right or wrong?” The question they can ask is “is this action lawful or unlawful”.

16. Bill of Rights would change the role of the judiciary. Bill of Rights contain the fundamental rights such as freedom of speech and assembly. It would be entrenched, i.e. it could not be repealed or altered without a special parlimentary majority. Bill of Right woulg give a bigger protections to the citizens of Great Britain.

17.

18.


19. Lord Reid said :„We often say we are looking for the intention of Parliament, but this is not quite accurate .We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. „

20. Example of a case in which the literal rule was applied is London & North Eastern Railway Co. v. Berrman 1946 AC 2784L

21. The literal rule gives us a clear illustrationes of the difficulty in determing the meaning of what might appear to be very simple words.


22. The basic recommendations of the Law Commission`s report is that Law Commission`s approved the use of the Mischief Rule, preferring a construction which would promote the general legislative purpose over one which would not.

23. a

24. Distinguishing – is occurs when the facts of a leter case are sufficient different to justify the court reaching a different decision from an earlier involving the same legal principle.
Per incuriam means my inquiry


25. Only Bert comitted an offence under the Theft Act. He came on John's garden without John's permit and tried to steal his apples. Doing that he broke John's ladder. Reg was only wanted the shelter in cold weather while Peter was invited by his friend Charles.


26. a) Defendat' s case have very similar basis with Hay(or Bourhill) v. Young case so that is the main reason for relying on that case.
b) Ormerod LJ find it difficult to draw an arbitrary lineof distinction between different cases because those cases are quite resambling.
c)I think that Mary would ot recover damages for her injuriy because her son has no injuries.



Part of Homework from te book page 106

• In the case McLoughlin v. O'Brian plantiff was not with her family at the time of accident which is diffrence of the case Boardman v. Sanderson when the plantif was near by his son
• House of Lords change the law by passing judgement in favour of Mrs. McLoughlin in the way that before the plantif has no chance to succeed in the lawsuit for nervous shock.



HOMEWORK

There are there type of criminal offence: summary, indictable and triable. Summary are less serious offences which are tied in magistrates court without a jury. Indictable offences are the most serious offences such as murder, manslaughter, rape and arson. Magistrates have the different role in this type of offences. Triable offences are the offences which can be committed in a serious or minor way.
In summary offences the magistrates will hear the evidence and reach the verdict. In indictable offences the magistrates role is to conduct a preliminary enquiry into the prosecution’s evidence end to the decide whether it forms a sent a sent away case against the accussed. In triable offences the magistrates will determine the mode of trial taking into account such factors as the seriousness of the offence and the possible appropriate sentence.
If a prima facie case is established, a full trial will take place in the Crown court before a judge and a jury of twelve ordinary people. It is the role of the judge to rule on points of law and if the defendant is found guilty to pass sentence. The jury assesses the fact and reaches a verdict.
CPS is achieving one of its main objectives-the sifting out of weak or unnecessary prosecutions and the resulting easing of pressure on the overburdened criminal justice system.
A person who has been acquitted of charge cannot be tried for the same offence again. It is the different situation when the case is disscarged. When the prosecution finds enough evidence they can accuse the same person again.
A) One the main factors which will be taken into account when deciding whether to prosecute Mr. Smith are the evidence. Evidences are witnesses, alibi, DNA test results, ballistics, fingerprints…
B) First, magistrates conduct a preliminary enquiry into the prosecution’s evidence and they decide whether it forms a prima facie case against Mr. Smith. If not case will be discharged. If a prima facie case is established a full trial will take place in the Crown court before a judge and jury of twelve ordinary people.
C) If he is found guilty, Mr. Smith may appeal against conviction or sentence to the Criminal Division of the Court of Appeal. The prosecutions may also appeal for the sentence to be increased.
A) Mrs. Brown may be tried summarily in the magistrates court or in the Crown court depend of seriousness of the theft.
B) If Mrs. Brown is found guilty she may appeal. If she has been tried on the summary, she may appeal to the Crown Court for retrial or to Divisional Court of the Queen’s Bench Division of the High Court. If she has been tried in the crown court she may appeal to the Criminal Division of the Court of Appeal.

Will the courts and legal services Act provide a better legal services to the
public?!


The legal services stage in the 1989 didn't allowed solicitors to have rights of audinece in higher courts. That right had only barristers. Of course that situation create monopoly. Soliciters couldn't choose theirs clinets. Monopoly made costs of legal higher and untouchable for the masses.
Will the courts and legal services Act provide a better legal services to the public?!
I am assuere it will. Rights of audience to solicitoers will mulitiply number of advocates and raise the consumer choise. The monopoly which British had before will fade away or it will be reduced.When there was no monpoly the prices are lower. Leagl services now can use the those in need. Also action „No win , no fee“ make the legal services more available. Compentition force people to be better in their job. The courts and legal services Act improve the quality of legal services with lower prices.
Senior judges who have publicly opposed the extension of right of audience have a signifiacant role in determining the rules which will govern its implementation. The courts and legal services Act in on part seems unfair to the barristers who finished more difficult education than soliciters.
At the end I must say that it will take some time to find out a real improvment of legal services.

Separatio of powers

In very state trehe are three instance of separation of powers. There are the legislative, the executive and judiciary.
As one of the main reasons for this theory is possibillity of stoping improper use of powers.In society without propely diveded separation of powers there is no constitution. People can not be free in that kind of situaton.
In United Statae of America separation is clearer than British constitution. I must say that is no state with pure separation of powers. In United kindom the same people are membersexecutive and legislative. Courts caay out some of the administrative functions. In United states Of America presidnet appoint the judges to the supreme court. His nomination must be approved by the senate.Both, Americans and the British have the same kind of law.
In continental law there is a little bit diffrent situation, for example, the Croatia. The legislative have assembly, house of Representatives, House of Counties and councils of each House. The executive have President of Republic of Croatia and the Goverment of Republic of Croatia. The judiciary are The Constitucional court of Croatia, Supreme court of Croatia, State Auttorney's Office, ombudsman.The ministry are the adminstrative.

The constitution of Bosnia and Herzegovina


The constitution of Bosnia and Herzegovina is written. First constitution Bosnia and Herzegovina got 1910. while it was part of Austria-hungarian state. In Yugoslavia Bosnia and Herzegovina didn't have constitution, i.e. there was constitution for all Yugoslavia. After peace agreement in Deyton, United States of America Bosnia and Herzegovina has made constitution 1995.
The main feauteres of Bosnia and Herzegovina's constitution are provisions about Bosnia and Herzegovina, human rights and basic freedom, president, supreme court, etc. Bosnia and Herzegovina have 12 articles. In 2 nd article is numbered human rights and basic freedoms. That's rights are garanted of Europian convention of human rights. They are: right on life, education freedom, religius freedom, freedom from unlawful detention,freedom of speach, rights of private propety, freedom of expression. Provisions number 6 obligate courts and other body of Bosnia and Herzegovina on respect and implementation of human rights,


The constitutional convention


In Great Britain the constitutional conventions are specificity of constitutional law. There are group of codes made by longterm practice. Constitutional conventions are obeyed but they have not the protection by the court. They are obeyed for the pratical reasons.
Not all convention are of equal impotance. First example is a goverment which is defeted on a major issue in the hause of commons should resign. Second example is that monarch have right to refuse to give a royal assent on some subject, but by the convention there haven't be a practice more than a hunders years.
The consequences of a breach of a convention will depend how individual convention is important .The most consequences are political.
The constitutional convention have the advantage of being flexible. It is not necessary procedure which is used in modification of constitutional provisions. Sometimes a bad constitutional provisions remain as a result of complex procedure.That points out the advantage of constitutional conventions.


The criminal law should play no part in in the enforcement of morality



Our criminal law declares that one of the his roles is general prevention, i.e. if we penalize the perpetrator of the criminal act, we point out that society will not tolerate that kind of behaviour and every behaviour against the law will be punished. Let's imagine the society which regulation stand on the morality of the individuals. Could you? I can. It would be a chaos. Morality is very extensible term. Something which is normal for some group is immoral for the other one. Some action such as murder, robery, rape etc. for the most people is immoral. Let's ask ourselfs is it for the fact that that kind of behaviour is punishble from mileniums ago or they think that kind of behaviur is really wrong and immoral. Will it, knowing that murder in no criminal act, murder be the last option, or the first or some option in the midle like every one else? How many people do not make a criminal act because of the fear that they will be cought and punished and how many people do not make a criminal act beause it is againts their moral code? We all know that U.S solderies can not be judged, for the crimes they made, in Haag. Also we all heard about what is happening there. This is only the tip of the iceberg. H.L.A. in his book Law, Freedom and Morality declaire that the law should protect vulnerable people like the children. Law does protect them but also law protect the others. Other role of the criminal law is the protect the society. Who make a criminal act againts child will be penalized more drastically.

On the other hand it is unreasonably think that criminal law should cover all immoral behaviour like a criminal act. Some behaviour cause a less damages than the others. That kind of behavior law call offences. If the criminal law criminalize every immoral behaviour like cheet, citizens would not have freedom. Somebody must be immoral in the society. J Every place have their own monks and lifters. Cheet is iimoral but is not iilegal. What is cheet anyway? Cheet is very discusitable term. For someone it is the kiss, for other, it is a look, and for the third group it is a whole package. If we crimanlize a cheet for example, our law will act like a noisy litle women who must know everything and be involved everywhere. Instead of schools, shoping centars, church, we will build prisons. Some behaviours must be left to stand on the morality of individals like the behaviours between people. Our law system is very related to each other. Something is maybe not a criminal offence but is civil offence.

I agree that moral is very damaged in last couple of years, and the state must protect their citizens, but also I know that to many protection also can produce a damage maybe evan a bigger one. If we start to decrimalize some behavours like the abortion, gay communities, prostitution, some drugs what will happend? Where is the end? We must say some things to STOP.

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