SQA-HND-商法-OUTCOME1 答案

Outcome 1

1. The two main areas of law are Criminal and Civil Law.

- Criminal law

Definition: deals with all types of offences过错and crimes, concerns itself with the recognition of what amounts to a crime and the punishments suitable for these recognized crimes.

Criminal conduct is the behavior which threatens the safety and security of the community. So the offender should be punished by imprisonment or fine or some other sanctions. Examples: murder, culpable homicide, piracy, treason, armed robbery, supplying illegal drugs, fire raising, assault, fraud, theft, house breaking, dangerous driving, and breach of the peace)

- Civil law

Definition: concerned with non-criminal disputes and situation, including the following:

a) The settlement of legal disputes between individuals and other bodies (example: divorce case).

b) The payment of compensation from one party to another for loss or injury (example: a case where someone was claiming damages after being injured by faulty machinery at work).

c) The setting of procedures to govern financial and other matters (example: the legal procedures to be followed when buying or selling a house).

2. Sources of Scots Law are Statute Law, European Union Law, and Common Law or Judicial Precedent.

- Common Law

Definition: is a numerous legal rules that form the part of unwritten laws of Scotland which has been handed down to us as customs and practices over the centuries.

A major source of Common Law is the practice whereby judges make new rules of law will be followed by other court, so that it is legally binding rules.

3. Doctrine of Judicial Precedent

Definition: is a process involves a process whereby a judge can develop a rule of law by making a decision in a test case. A test case refers to the one in which clarification of an important point of law is sought, and judges after listening to opposite legal arguments will have to make the decision about which view of the law is correct. Once this decision has been made, future judges and course will be expected to follow the reasoning in the test case, if they are dealing with a case with similar legal issues.

It must be emphasized that not every judge can make a new binding legal rule. The authority of the judge or court should be considered here, if the judge is relatively junior, he/she will be unlikely to be able to create a new rule of law. But on the other hand, if the rule comes from superior courts, this decision will be followed by the lower or inferior courts.

Judicial precedent or case law is parts of the unwritten law of Scotland.

Donoghue v Stevneson (1932)

4. Westminster Parliament and Scottish Parliament (legislative body)

Unlike the previous Scottish Parliament which was abolished by the Act of Union in 1707, the new Scottish Parliament is not a completely independence body. The Scottish Parliament is clear and inferior body compared with the Westminster Parliament.

It is the Westminster Parliament from which the Scottish Parliament obtains its authority to pass laws for Scotland. So any legislation of the Scottish Parliament is thought to be secondary legislation.

It is also necessary to know that a simple Act of the Westminster Parliament is all that it would take to abolish Scottish Parliament. Westminster Parliament has already abolished a local assembly.

Acts of Parliament are often referred to as legislation or statute law until the creation of Scottish Parliament, the Westminster Parliament alone made laws for Scotland. However Westminster has given the Scottish Parliament authority in many different areas of policy to make statute law.

Abolition of feudal tenure act 2000

The Health and Safety at Work Act 1974

Sale of Goods Act 1979

Employment Rights Act 1996

Protection of Children Act 2003

5. Civil Law v Criminal Law

- Criminal Law is primarily used by the state as a means of maintaining law and border by punishing certain individuals who have the behavior as criminally and antisocially. The State uses the Criminal Law to punish criminals on behalf of the community or sociality.

- The Civil Law is to resolve legal disputes between private individuals in such areas as 民事纠纷Family Law, Company Law, Partnership Law, Banking and Finance Law, Sale of Goods and Services Law, Consumer Law, Personal Injury Claims Law, and Divorce.

- Different courts and standers of evidence and procedures exist depending on whether we are talking about a criminal action or a civil dispute.

Conflict between Scottish and european law

If there is a conflict between Scottish and European law, the court should obey the rules or laws under European law.

The European Union is an organization of 25 member states. The members must obey the rules or laws in order to enjoy the benefits of membership.

Britain has been a member of the European Union since January 1, 1973. because of the passing of the European Communities Act 1972 by the Westminster Parliament. It is this legislation that recognizes the supremacy of European Law over the domestic law. By the time Britain became a member of European Union 1973. Many of the important law were already in place and Britain

had to accept this as a price of membership of European Union. But if Britain decides to withdrawal from membership from European Union, then its national law will once again get supremacy.

6. The Council of Ministers

The European Parliament

The European Court of Justice

The European Commission

The first two have the power to make laws for the people of European.

The third one enforces European Union Law.

The forth one is effectively the unions civil service and it can propose law. It can also bring breaches of the varies European Union Treaties to the attention of the European courts of justice. The Commission is regarded as the EU Treaties guardian of the varies European Union Treaties.