商法导论1

1．List the main sources of modern Scots Law?The main sources of modern Scots Law are statute law, European Union law and common law.2.(a)What is meant by the doctrine of judicial precedent?(b) Please give an example of a judicial precedent.The doctrine of judicial precedent [stare decisis] involves such a process whereby a judge or judges can develop a rule of law by making a decision in a test case.A test case is the very case in which clarification of an important point of law is sought and judges, after listening to opposing legal arguments, will have to make the decision as to which view of the law is correct. Once this decision has been made, future judges and courts will be expected to follow the reasoning laid down in that test case if they are dealing with a case of similar legal issues.However, it should be stressed that not every judge can make a new, binding legal rule. The authority of the judge or the court will have to be considered first all. It is very unlikely that Junior judges like a Sheriff or a Justice of the Peace will be able to create a new rule of law. On the other hand, if the ruling came from superior courts, for example, the High Court of Justiciary or the House of Lords, this decision would have to be followed by the lower or inferior courts. Therefore, the position of the court matters greatly.Judicial precedent or case law is part of the unwritten law of Scotland.The well known case of Donoghue v Stevenson [1932] could be used as a good example of the doctrine of judicial precedent. (See 5.1.03 P.44)3.(a) Which is the superior legislative body :the Westminster Parliament or the Scottish Parliament?(b) Explain your choice of answer in part above?The superior legislative body is the Westminster (or United Kingdom) Parliament.By the Act of Union in 1707, the previous Scottish Parliament was abolished. Ever since, the new Scottish Parliament is not a completely independent body. It is an inferior body in comparison to the Westminster Parliament, from which the Scottish Parliament derives its authority to pass laws for Scotland.Any legislation of the Scottish Parliament is considered to be secondary legislation NOT primary legislation. Surely a simple Act of the Westminster Parliament is allthat it would take to abolish Scotland's Parliament, let alone the legislation by the latter.4. What is a statute?Acts of Parliament are often referred to as legislation or statute law. The Westminster Parliament (the national Parliament of the United Kingdom) alone made laws for Scotland until the creation of the Scottish Parliament, However, Westminster has given the Scottish Parliament authority in many different areas of policy to make statute law.5. Name five Acts of Parliament.You are free to name any five acts of either the Westminster or Scottish Parliaments,e.g. 1) the Health and Safety at Work Act 1974,2) Sale of Goods Act 1979,3) Employment Rights Act 1996,4) Abolition of Feudal Tenure (Scotland) Act 20005) Protection of Children (Scotland) Act 20036) The Licensing (Scotland) Act 19757) The Divorce (Scotland) Act 1976..6. What are the main differences between civil law and criminal law in Scotland? The main differences are:Criminal law is primarily used by the State as a means of maintaining law and order by punishing certain individuals who indulge in such behavior that is regarded as criminal and anti-social. The State uses the criminal law, therefore, to punish criminals on behalf of the community or society as a whole.The civil justice system, in contrast with criminal law, aims to resolve legal disputes between private individuals in the areas as wide-ranging as family law, company law, partnership law, banking and finance law, sale of goods and services, consumer law, personal injury claims, trusts, defamation actions, succession issues and divorce.What courts, standards of proof and procedures should be adopted for a certain case then? It all depends on the nature of the case - whether a criminal action or a civil dispute.7. What is a crime? (You should list four examples of criminal behavior)A crime is behavior which/that is regarded as so blameworthy and which, consequently/finally, threatens or undermines the security of society. Criminal behavior ought to be punished by the state --- e.g. by means of the imposition of a prison sentence and/or fine or other sanction on the person who is convicted of a crime.Murder, rape, assault, fire-raising, theft and fraud are all criminal conducts8. Provide three examples of a civil dispute.Examples of a civil dispute might include any of the following actions:* Employment law disputes e.g. unfair or wrongful dismissal claims, unlawful discrimination and cases involving unauthorized deductions from wages.* Family law disputes (custody or adoption of children).* Divorce or separation actions.* Debt recovery actions.* Defamation of character.* Tenor or authenticity of a lost document.* Land disputes e.g. trespass, nuisance, non-natural use of water, liability for animals, occupier's liability and spiteful use of property rights.* Winding up of a corporate body (companies, limited liability partnerships or limited partnerships) in an insolvency or bankruptcy situation.* Succession disputes (wills).* Trusts.* Personal injury claims.* Contractual disputes whether consumer or commercial in nature.9. (a)In a conflict between Scots and European Union Law, which one of the two legal systems are the Scottish Courts bound to follow?(b) Explain your answer? Such being the case, the Scottish Courts would have to obey the European Union's legal system.The European Union is a club of twenty-seven member states. Like most organizations or clubs, their members, in order to enjoy the benefits of membership, have to obey the rules or laws. UK has been a member of the EU since 1st January 1973 as a result of the passing of the European Communities Act 1972 by the Westminster Parliament. This legislation recognizes the supremacy of European law over domestic law.By the time Britain became a member of the European Union in 1973, many of the EU key laws were already in place and Britain had to accept these as the price of membership of the European Communities (now the Union). So, it would be safe to say that UK national law would never again reign supreme unless Britain decided to withdraw from membership of the European Union.10.(a )What are the four most important institutions of the European Union(b)which of the European Union institutions has law-making powers?(a) The four primary institutions of the European Union are as follows: The Council of Ministers; The European Parliament; The European Court of Justice; The European Commission.(b) Speaking exactly The Council of Ministers, with the advice of the European Parliament, has the power to make laws for the people of Europe. The European Court of Justice enforces European Union Law. The European Commission is effectively the Union's civil service in the sense that it can propose laws (but it cannot actually legislate) and it can also bring breaches of the various European Union Treaties to the attention of the European Court of Justice. In this latter role, the Commission is often regarded as the Guardian of the various European Union Treaties.。