法律英语_名词解释_考研复试口语

Common lawCommon law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action.Common law is law created and refined by judges: a decision in a currently pending legal case depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent.The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a "matter of first impression." Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of non-appellate courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stareprincipled rules so that they will reach similar results, lies at the heart of all common law systems.Common law legal systems are in widespread use, particularly in those nations which trace their legal heritage to Britain, including the United Kingdom, most of the United States, and other former colonies of the British Empire such as India,[2] Canada, New Zealand, Australia and Hong Kong.[3]InjunctionAn injunction is an equitable remedy in the form of a court order, whereby a party is required to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for failing to follow the court's order. In some cases, breaches of injunctions are considered serious criminal offences that merit arrest and possible prison sentences.MisrepresentationMisrepresentation is a contract law concept. It means a false statement of fact made by one party to another party, which has the effect of inducing that party into the contract. For example, under certain circumstances, false statements or promises made by a seller of goods regarding the quality or nature of the product that the seller has may constitute misrepresentation. A finding of misrepresentation allows for a remedy of rescission and sometimes damages depending on the type of misrepresentation.EstoppelEstoppel is a legal doctrine at common law, where a party is barred from claiming or denying an argument on an equitable ground. Estoppel complements theaggrieved party, if the counter-party induced an expectation from the aggrieved party, and the aggrieved party reasonably relied on the expectation and would suffer detriment if the expectation is not met.Also, unconscionability by a breaching party is also sufficient to estop the breaching party.Estoppel is a defense that prevents a representor from enforcing legal rights, or from relying on a set of facts that would give rise to enforceable rights (e.g. words said or actions performed), generally only if that enforcement or reliance would be unfair to the representee. Because its effect is to defeat generally enforceable legal rights, the scope of the remedy is often limited. Note, however, that proprietary estoppel (applicable in English land law) can be both a sword and a shield and the scope of its remedy is wide.For an example of estoppel, consider the case of a debtor and a creditor. The creditor might unofficially inform the debtor that the creditor forgives the debt. Even if such forgiveness is not formally documented, the creditor may be estopped from changing its mind and seeking to collect the debt, because that change would be unfair. In the same way, a landlord might inform a tenant that rent has been reduced, for example, if there was construction or a lapse in utility services. If the tenant relies on this notice, the landlord could be estopped from collecting the full rent.Estoppel is closely related to the doctrines of waiver, variation, and election and is applied in many areas of law, including insurance, banking, employment, international trade, etc. In English law, the concept of legitimate expectation in the realm of administrative law and judicial review is estoppel's counterpart in public law, although subtle but important differences exist.This term appears to come from the French estoupail (or a variation), which meant "stopper plug", referring to placing a halt on the imbalance of the situation. The term is related to the verb "estop" which comes from the Old French term estopper, meaning "stop up, impede". Note the similarity between the English terms "estop" and "stop".Case lawCase law (also known as decisional law or judicial precedent) is the general term for the principles and rules of law set forth in judicial opinions from courts of law.[1] Case law incorporates courts' decisions from individual cases and encompasses courts' interpretations of statutes, constitutional provisions, administrative regulations and, in some cases, law originating solely from the courts. Case law is often published in print law reports or reporters (and increasingly on court websites) to establish precedent - rules to apply in future court decisions dealing with similar situations.For countries with a common law legal system, such as in the United Kingdom, United States, and most of the Commonwealth of Nations, case law is a major source of law. In general, courts in common law countries treat the decisions of higher appellate courts as normative - laying down rules that should, or in some cases must, be used to decide similar legal disputes (called "binding precedent"). In countries with legal systems that follow the civil law tradition derived from Roman law, however, the courts are not strictly bound by rules and principles from case law. StatuteStatute law is law made by parliaments eg. the crimes act 1900 made by nsw parliamentA statute is a formal written enactment of a legislative authority that governs aor declare policy. The word is often used to distinguish law made by legislative bodies from the judicial decisions of the common law and the regulations issued by Government agencies.[1] Statutes are sometimes referred to as legislation or "black letter law". As a source of law, statutes are considered primary authority (as opposed to secondary authority).Before a statute becomes law in some countries, it must be agreed upon by the highest executive in the government, and finally published as part of a code. In many countries, statutes are organized in topical arrangements (or "codified") within publications called codes, such as the United States Code. In the United States, statutory law is distinguished from and subordinate to constitutional law.Agency (law)Agency is an area of commercial law dealing with a contractual or quasi-contractual tripartite, or non-contractual set of relationships when an agent is authorized to act on behalf of another (called the Principal) to create a legal relationship with a Third Party.[1] Succinctly, it may be referred to as the relationship between a principal and an agent whereby the principal, expressly or impliedly, authorizes the agent to work under his control and on his behalf. The agent is, thus, required to negotiate on behalf of the principal or bring him and third parties into contractual relationship. This branch of law separates and regulates the relationships between:∙Agents and Principals;∙Agents and the Third Parties with whom they deal on their Principals' behalf;and∙Principals and the Third Parties when the Agents purport to deal on their behalf.The common law principle in operation is usually represented in the Latin phrase, qui facit per alium, facit per se, i.e. the one who acts through another, acts in his or her own interests and it is a parallel concept to vicarious liability and strict liability in which one person is held liable in Criminal law or Tort for the acts or omissions of another.Good faithGood faith, or in Latin bona fides (bona fide means "in good faith"), is the mental and moral state of honesty, conviction as to the truth or falsehood of a proposition or body of opinion, or as to the rectitude or depravity of a line of conduct. This concept is important in law, especially equitable matters.[1]In contemporary English, "bona fides" is sometimes used as a synonym for credentials, background, or documentation of a person's identity. "Show me your bona fides" can mean: Why should I trust you (your good faith in this matter)? Tell me who you are. In this sense, the phrase is sometimes used in job advertisements, and should not be confused with the bona fide occupational qualifications or the employer's good faith effort, as described below.[2]CommissionerCommissioner is in principal the title given to the holder of a commission, in the sense of a mandate, whether individually or shared, notably as member of a collegial commission.In practice the title of commissioner has evolved to include a variety of senior officials, often sitting on a specific commission. In particular, commissioner frequently refers to senior police or government officials. A High Commissioner is equivalent to an ambassador, between Commonwealth states sharing the same Monarch as head ofThe title is also sometimes given to senior officials in the private sector, for instance many North American sports leagues.PartnershipA partnership is a type of business entity in which partners (owners) share with each other the profits or losses of the business undertaking in which all have invested. Partnerships are often favored over corporations for taxation purposes, as the partnership structure does not generally incur a tax on profits before it is distributed to the partners (i.e. there is no dividend tax levied). However, depending on the partnership structure and the jurisdiction in which it operates, owners of a partnership may be exposed to greater personal liability than they would as shareholders of a corporation.Joint and several liabilityUnder joint and several liability, a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. This means that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability.Joint and several liability is most relevant in tort claims, whereby a plaintiff may recover all the damages from any of the defendants regardless of their individual share of the liability. The rule is often applied in negligence cases, though it is sometimes invoked in other areas of law.In the United States, 46 of the 50 states have a rule of joint and several liability, although in response to "tort reform" efforts, some have limited the applicability of the rule.Tort law is the name given to a body of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations.[1]A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or "liable," for those injuries. Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another's injury. Torts cover intentional acts and accidents.For instance, Alice throws a ball and accidentally hits Brenda in the eye. Brenda may sue Alice for losses occasioned by the accident (e.g., costs of medical treatment, lost income during time off work, pain and suffering, etc.). Whether or not Brenda wins her suit depends on if she can prove Alice engaged in tortious conduct. Here, Brenda would attempt to prove Alice had a duty and failed to exercise the standard of care which a reasonable person would render in throwing the ball.One of the main topics of the substance of tort law is determining the "standard of care" - a legal phrase that means distinguishing between when conduct is or is not tortious. Put another way, the big issue is whether a person suffers the loss from his own injury, or whether it gets transferred to someone else.Going back to the example above, if Alice threw the ball at Brenda on purpose, Brenda could sue for the intentional tort of battery. If it was an accident, Brenda must prove negligence. To do this, Brenda must show that her injury was reasonably foreseeable, that Alice owed Brenda a duty of care not to hit her with the ball, and that Alice failed to meet the standard of care required.In much of the western world, the touchstone of tort liability is negligence. If the injured party cannot prove that the person believed to have caused the injury actedrecognizes intentional torts and strict liability, which apply to defendants who engage in certain actions.In tort law, injury is defined broadly. Injury does not just mean a physical injury, such as where Brenda was struck by a ball. Injuries in tort law reflect any invasion of any number of individual "interests." This includes interests recognized in other areas of law, such as property rights. Actions for nuisance and trespass to land can arise from interfering with rights in real property. Conversion and trespass to chattels can protect interference with movable property. Interests in prospective economic advantages from contracts can also be injured and become the subject of tort actions.A number of situations caused by parties in a contractual relationship may nevertheless be tort rather than contract claims, such as breach of fiduciary duty. Tort law may also be used to compensate for injuries to a number of other individual interests that are not recognized in property or contract law, and are intangible. This includes an interest in freedom from emotional distress, privacy interests, and reputation. These are protected by a number of torts such as infliction, privacy torts, and defamation. Defamation and privacy torts may, for example, allow a celebrity to sue a newspaper for publishing an untrue and harmful statement about him. Other protected interests include freedom of movement, protected by the intentional tort of false imprisonment.The equivalent of tort in civil law jurisdictions is delict.[2]The law of torts can be categorised as part of the law of obligations, but unlike voluntarily assumed obligations (such as those of contract, or trust), the duties imposed by the law of torts apply to all those subject to the relevant jurisdiction. To behave in 'tortious' manner is to harm another's body, property, or legal rights, or possibly, to breach a duty owedunder statute. One who commits a tortious act is called a "tortfeasor".[3] Torts is one of the American Bar Association mandatory first year law school courses.[4]Piercing the corporate veilThe corporate law concept of piercing (lifting) the corporate veil describes a legal decision where a shareholder or director of a corporation is held liable for the debts or liabilities of the corporation despite the general principle that shareholders are immune from suits in contract or tort that otherwise would hold only the corporation liable. This doctrine is also known as "disregarding the corporate entity". The phrase relies on a metaphor of a "veil" that represents the veneer of formalities and dignities that protect a corporation, which can be disregarded at will when the situation warrants looking beyond the "legal fiction" of a corporate person to the reality of other persons or entities who would otherwise be protected by the corporate fiction. Piercing the corporate veil is not the only means by which a director or officer of a corporation can be held liable for the actions of the corporation. Liability can be established through conventional theories of contract, agency, or tort law. For example, in situations where a director or officer acting on behalf of a corporation personally commits a tort, he and the corporation are jointly liable and it is unnecessary to discuss the issue of piercing the corporate veil.The doctrine is often used in cases where liability is found, but the corporation is insolvent.Parent companyA parent company is a company that owns enough voting stock in another firm to control management and operations by influencing or electing its board of directors; the second company being deemed as a subsidiary of the parent company. Thedefinition normally being defined by way of laws dealing with companies in that jurisdiction.SubsidiaryA subsidiary, in business matters, is an entity that is controlled by a bigger and more powerful entity. The controlled entity is called a company, corporation, or limited liability company, and the controlling entity is called its parent (or the parent company). The reason for this distinction is that a lone company cannot be a subsidiary of any organization; only an entity representing a legal fiction as a separate entity can be a subsidiary. While individuals have the capacity to act on their own initiative, a business entity can only act through its directors, officers and employees.The most common way that control of a subsidiary is achieved is through the ownership of shares in the subsidiary by the parent. These shares give the parent the necessary votes to determine the composition of the board of the subsidiary and so exercise control. This gives rise to the common presumption that 50% plus one share is enough to create a subsidiary. There are, however, other ways that control can come about and the exact rules both as to what control is needed and how it is achieved can be complex (see below). A subsidiary may itself have subsidiaries, and these, in turn, may have subsidiaries of their own. A parent and all its subsidiaries together are called a group, although this term can also apply to cooperating companies and their subsidiaries with varying degrees of shared ownership. Subsidiaries are separate, distinct legal entities for the purposes of taxation and regulation. For this reason, they differ from divisions, which are businesses fully integrated within the main company, and not legally or otherwise distinct from it.An operating subsidiary is a business term frequently used within the United States railroad industry. In the case of a railroad, it refers to a company that is a subsidiary but operates with its own identity, locomotives and rolling stock.In contrast, a non-operating subsidiary would exist on paper only (i.e. stocks, bonds, articles of incorporation) and would use the identity and rolling stock of the parent company.BranchA branch is a woody structural member connected to but not part of the central trunk of a tree (or sometimes a shrub). Large branches are known as boughs and small branches are known as twigs.While branches can be nearly horizontal, vertical, or diagonal, the majority of trees have upwardly diagonal branches.Articles of IncorporationThe Articles of Incorporation (sometimes also referred to as the Certificate of Incorporation or the Corporate Charter) are the primary rules governing the management of a corporation in the United States, and are filed with a state or other regulatory agency. The equivalent in the United Kingdom and various other countries is Articles of Association.BylawA bylaw (sometimes also spelled by-law or byelaw) most commonly refers to a city or municipal law or ordinance, passed under the authority of a charter or provincial/state law specifying what things may be regulated by the municipality. LiabilityIn the most general sense, a liability is anything that is a hindrance, or puts individuals at a disadvantage. It can also be used as a slang term to describesomeone that puts a team or group of which they are a member at a disadvantage, and would thus be better off without.Capital (economics)In economics, capital or capital goods or real capital refers to factors of production used to create goods or services that are not themselves significantly consumed (though they may depreciate) in the production process. Capital goods may be acquired with money or financial capital. In finance and accounting, capital generally refers to financial wealth, especially that used to start or maintain a business. Authorised capitalThe authorised capital of a company (sometimes referred to as the authorised share capital or the nominal capital, particularly in the United States) is the maximum amount of share capital that the company is authorised by its constitutional documents to issue to shareholders. Part of the authorised capital can (and frequently does) remain unissued.The part of the authorised capital which has been issued to shareholders is referred to as the issued share capital of the company.Share capitalShare capital or issued capital (UK English) or capital stock (US English)[1] refers to the portion of a company's equity that has been obtained (or will be obtained) by trading stock to a shareholder for cash or an equivalent item of capital value. For example, a company can set aside share capital to exchange for computer servers instead of directly purchasing the servers from existing equity.The paid-up capital does not speak about the shares.Preferred stockPreferred stock, also called preferred shares or preference shares, is typically a 'higher ranking' stock than voting shares, and its terms are negotiated between the corporation and the investor.Preferred stock usually carries no voting rights,[1][2]but may carry superior priority over common stock in the payment of dividends and upon liquidation. Preferred stock may carry a dividend that is paid out prior to any dividends being paid to common stock holders. Preferred stock may have a convertibility feature into common stock. Preferred stockholders will be paid out in assets before common stockholders and after debt holders in bankruptcy. Terms of the preferred stock are stated in a "Certificate of Designation".Consolidation (business)Consolidation or amalgamation is the act of merging many things into one. In business, it often refers to the mergers or acquisitions of many smaller companies into much larger ones. The financial accounting term of consolidation refers to the aggregated financial statements of a group company as consolidated account. The taxation term of consolidation refers to the treatment of a group of companies and other entities as one entity for tax purposes. Under the Halsbury's Laws of England, 'amalgamation' is defined as "a blending together of two or more undertakings into one undertaking, the shareholders of each blending company, becoming, substantially, the shareholders of the blended undertakings. There may be amalgamations, either by transfer of two or more undertakings to a new company, or to the transfer of one or more companies to an existing company". Thus, the two concepts are, substantially, the same. However, the term amalgamation is more common when the organizations being merged are private schools or regiments. Non-executive directorA non-executive director (NED, also NXD) or outside director is a member of the board of directors of a company who does not form part of the executive management team. He or she is not an employee of the company or affiliated with it in any other way. They are differentiated from inside directors, who are members of the board also serving as executive managers of the company (most often as corporate officers).Business judgment ruleThe business judgment rule is an American case law-derived concept in Corporations law whereby the "directors of a corporation . . . are clothed with [the] presumption, which the law accords to them, of being [motivated] in their conduct by a bona fide regard for the interests of the corporation whose affairs the stockholders have committed to their charge"[1]and whereby a court will refuse to review the actions of a corporation's board of directors in managing the corporation unless there is some allegation of conduct that the directors violated their duty of care to manage the corporation to the best of their ability. The burden is on the party challenging the decision to establish facts rebutting the presumption.[2]Derivative suitA shareholder derivative suit is a lawsuit brought by a shareholder on behalf of a corporation against a third party. Often, the third party is an insider of the corporation, such as an executive officer or director. Shareholder derivative suits are unique because under traditional corporate law, management is responsible for bringing and defending the corporation against suit. Shareholder derivative suits permit a shareholder to initiate a suit when management has failed to do so. Because derivative suits vary the traditional roles of management and shareholders, many jurisdictions have implemented various procedural requirements to derivative suits.Mergers and acquisitionsThe phrase mergers and acquisitions (abbreviated M&A) refers to the aspect of corporate strategy, corporate finance and management dealing with the buying, selling and combining of different companies that can aid, finance, or help a growing company in a given industry grow rapidly without having to create another business entity.ContractA contract is an exchange of promises between two or more parties to do, or refrain from doing, an act which is enforceable in a court of law. It is a binding legal agreement. [1] That is to say, a contract is an exchange of promises for the breach of which the law will provide a remedy.Agreement is said to be reached when an offer capable of immediate acceptance is met with a "mirror image" acceptance (ie, an unqualified acceptance). The parties must have the necessary capacity to contract and the contract must not be either trifling, indeterminate, impossible or illegal. Contract law is based on the principle expressed in the Latin phrase pacta sunt servanda (usually translated "pacts must be kept", but more literally "agreements are to be kept").[2]Breach of contract is recognized by the law and remedies can be provided. Sometimes written contracts are required, such as when buying a house.[3] However, most contracts can be and are made orally, such as purchasing a book or a sandwich. Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations (along with tort, unjust enrichment or restitution).ConsiderationConsideration is a concept of legal value in contract law. It is a promised action, or omission of action, that the promisee did not already have a pre-existing duty to。