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THE MAIN BRANCHES OF CIVIL AND COMMON LAW



2015-11-10 820 Обсуждений (0)
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The law of any country can be subdivided or classified into a number of different branches, some of which are explained below. If a lawyer is asked by a client to give advice on a particular issue, a vital first task will be to ascertain the essential facts of the matter. These will form the basis of his search for the appropriate rules of law. The process which will lead him in the right direction is known as ‘classification’, whereby the facts of a particular issue are ‘pigeon-holed’ or classified under the relevant part of the law. The difficulty is that civil law and common law systems do not always share the same method of classification. It is possible, however, to adopt a broad approach to the exercise which, although not reflecting the scientific rigour of the legal comparatist, provides a general overview of the law’s principal divisions. The first major division is between public law and private law. Public law consists of those rules which regulate the relationship between the state and the individual. Within this branch of the law further subdivisions can be found – for example, constitutional law, administrative law and criminal law. Constitutional law is concerned with defining the powers of and the relationship between the principal institutions of state. For example, in the UK constitutional law deals with such issues as the role and powers of the Monarch, the function of the House of Commons and the House of Lords (the British Parliament) and the relationship between them, the role of the executive in the form of the Prime Minister and the government, the structure of local government and the powers given to it, the status and powers of the armed forces and the police, and the role of the courts and judiciary. This part of the law is also concerned with the relationship between the state, its institutions and the individual citizen and, in particular, the civil liberties of the latter. Unlike most other countries, the constitution of the UK is not ‘written’, i.e. there is no single document which can be said to contain the constitution. Instead, it stems from a number of different sources – for example, constitutional conventions (custom), legislation and judicial precedent. It should also be noted that, again unlike many other countries, the courts of the UK have no power to declare an Act of Parliament ‘unconstitutional’.

Administrative law is that branch of the law which deals with the operation of government as it affects the individual citizen. The increasingly active role of the government through its many departments and agencies in the control and regulation of daily life often gives rise to disputes. As a result, this has led in most countries to a rapid growth in administrative law to deal with the complaints of the individual against the decisions of administrative bodies. Again, by way of example, in the UK such issues as social security benefits (unemployment pay, housing benefit, etc.), state pensions and the National Health Service would all come within the scope of administrative law.

Criminal law deals with conduct on the part of the individual which the state regards as harmful to society generally and forthe control of which the state assumes responsibility. Most people, when asked ‘what is a crime?’, will give examples – murder, theft, robbery, etc. – rather than attempt a definition. This is understandable because the term ‘crime’ is not easy to define. The definition does not lie in the nature of the act itself, for a particular act can constitute a crime as well as a civil wrong under private law. The following example may help to illustrate the point. Suppose that X and Y are neighbours and that X, much to the annoyance of Y, regularly takes a short cut through Y’s garden to reach the bus stop. If, in desperation, Y complains to the police, it is unlikely that they would be interested. However irritating X’s actions may be to Y, they are unlikely to threaten the well-being of society generally and therefore will not be the concern of the criminal law. Y’s remedy will lie in private law and under this he may be able to get an order from a civil court prohibiting X from repeating the conduct complained of and, in some circumstances, compensation. However, if on one occasion, Y remonstrates with X and during the argument X hits Y with a baseball bat, Y’s complaint to the police may produce dividends because such conduct, while affecting Y individually, also has wider implications for the general public good and the maintenance of social order. X’s conduct will, in addition to infringing Y’s private rights, also constitute a crime. In this case, the state might decide to prosecute X in a court having criminal jurisdiction with a view to exacting a penalty from X which will punish him and constitute a warning to others who may be similarly inclined.

Private law consists of those rules of law that govern the relationship between private individuals. An ‘individual’ in this sense will also include private organisations such as limited liability companies. Private law can be subdivided into several major categories, some of which will now be briefly considered.

Property law lays down the rules regulating the rights a person may enjoy in or over the various forms of property. In civil law jurisdictions, property is usually further divided into immovable and movable property, the distinction roughly equating with the real and personal property categorisation of English law. Immovable or real property comprises land and things affixed to it, such as buildings, whereas movable or personal property basically refers to everything else. An exception to the last point, however, exists under English law because, for mainly historical and technical reasons, leases of land are regarded as personal property. The law also recognises the concept of intangible property, with intellectual property such as patents, trademarks, copyright, etc. being a notable example.

The law of succession is concerned with the devolution of property on death. As it is not possible to journey into the hereafter accompanied by one’s worldly goods, there has to be a system of rules determining who is entitled to what from the deceased’s estate. Some systems of law, such as English, allow a person significant freedom to direct who should benefit from his or her estate by means of a will or testament. Other systems, for example French law, impose limits on such freedom, thereby guaranteeing the rights of inheritance of the deceased’s heirs to at least part of the estate irrespective of his or her specific directions.

The law of obligations deals with certain forms of legal obligation which can exist between individuals, two prominent examples being those arising under the law of contract and the law of tort, or delict as it is sometimes known.

A contract is an agreement made between two or more persons giving rise to obligations which are recognised or enforced by law. For example, if X offers to sell 100 tons of potatoes to Y for .5000 and Y accepts promising to pay the price, a contract is created imposing obligations on both of them. If either X or Y fails to honour his obligation, the other will be able to apply to the court for an appropriate remedy. The distinguishing feature of the contractual obligation is that the parties themselves create it through their agreement. If, in the example above, X and Y had not concluded the agreement they did, X would be under no obligation to deliver the potatoes to Y nor Y to pay the .5000 to X. Important though the concept of the contract is, it would be entirely wrong to assume that a person can only owe a legal obligation to another if a contract exists between them. Thus, if X, while driving his car in a careless fashion, knocks Y off his bicycle injuring him, the fact that there was no contract between them would have no bearing on Y’s right to pursue a claim for compensation against X. The law of tort (delict) imposes on each and every individual certain obligations, breach of which will produce legal consequences. Although the term ‘tort’ basically means a civil wrong for which the law provides a remedy, common law jurisdictions differentiate between the various categories of wrong by giving them separate names. Thus, in the illustration just given, Y could bring a claim in negligence against X for his failure to exercise reasonable care. Other examples are nuisance (unlawful interference with a person’s use of his or her property, health or comfort and convenience), trespass (wrongful interference with the person, goods or land of another) and defamation (publishing false statements which damage a person’s reputation). While not naming individually the various types of wrong, civil law jurisdictions would, nevertheless, recognise the essential issue involved in the torts just mentioned and provide a remedy accordingly. For instance, paragraph 823 of the German civil code (BGB) forms the basis for many claims in tort by providing that a person is obliged to pay compensation for either negligently or intentionally violating the protected right of another, the protected rights including life, body, health, freedom and ownership of property. In French law, the basic principle which governs the entire law of tort is contained in Article 1382 of the Code civil, which states that ‘any act committed by a person which causes damage to another obliges that person by whose fault it occurred to make reparation’. Both the law of contract and the law of tort have a direct bearing on business activity. The contract is the foundation stone of many types of business relationship and for this reason alone it is advisable for any business practitioner to have an understanding of the fundamental principles of this area of the law. In various contexts the law of tort can operate to provide a basis for business liability. For example, one option for a

person injured through using a defective product is to bring an action in negligence against the manufacturer. Principles relating to both the laws of contract and tort will be further considered in later chapters.

Family law, as the name suggests, is concerned with matters relating to family life. Thus, the law relating to marriage and divorce, custody of children, financial support, matrimonial property, etc. would be included under this heading. The branches of private law just considered are, of course, recognised by both common law and civil law systems, and in the case of the latter, the detailed rules are very often found in the civil code. In the common law, however, the equivalent rules are more likely to be found in a disparate collection of precedents and/or statutory provisions rather than within the framework of a code.

Employment law is that part of the law which relates to the employment of labour and matters associated with it. In most developed industrial societies this is an area of the law which is constantly growing as it seeks to balance the legitimate commercial interests of the employer with the rights and entitlements of the employee. Within the scope of employment law are found rules relating to the formation, content and termination of the employment contract, unlawful discrimination, maternity rights, health and safety, trade unions and their activities, and so on.

The term commercial law can have a different connotation depending on whether it is being viewed from a common law or civil law perspective. In the case of English law, for example, the term has no precise meaning, often being merely descriptive of those areas of law relating to the supply of goods and services. Indeed, if one examined the contents page of several textbooks bearing the title ‘Commercial Law’, there would be no guarantee that exactly the same subjects would be included. Typically, however, matters such as contracts of sale, agency, negotiable instruments, and contracts of carriage would come under the heading of commercial law. Again, as in many areas of English law, the specific rules relating to the above subjects arise not from a single source but from a variety of sources, including precedent and statute. In civil law jurisdictions, on the other hand, the term ‘commercial law’ refers to that separate and distinct branch of the law containing special rules applying to merchants and their commercial activities. Very often this body of rules is contained in a commercial code such as the French Code de Commerce or the German Handelsgesetzbuch (HGB). The content of commercial law will necessarily depend on the particular jurisdiction under consideration, but by way of illustration a brief foray into the HGB might be helpful. The HGB consists of five books. Among the matters dealt with in Book One is the concept and status of the merchant (Kaufmann). Although certain aspects of a merchant’s activities will come within the remit of the civil code (BGB), he or she will also be subject to the special regime contained in the HGB. At the outset, therefore, it is essential to know who has the status of a merchant. Paragraph 1 defines a merchant as a person who carries on a commercial enterprise. A ‘person’ can be an individual, a commercial partnership or a company.

Paragraph 2 contains a list of nine activities which constitute a commercial enterprise. These are: buying and selling goods and securities, including the manufacture of goods; processing goods received from third parties (for example, carrying on the business of a dry-cleaner); insurance; banking; the carriage of goods or persons by sea, inland waterway or land; forwarding and warehousing; commercial agency and brokerage; bookselling and publishing; printing. Any person conducting any of the above activities is, by operation of law, deemed to be a merchant. Book One also contains the rules governing the commercial register. This register is administered by the district court (Amtsgericht) and consists of a publicly accessible record of information relating to a merchant’s business. Every merchant must register the name of the firm (Firma) and the location of the business, including branches. If the merchant has given any person powers to represent and act on behalf of the business, relevant details must be registered. The most extensive form of representation is the Prokura. According to paragraph 49 ‘a Prokura empowers the procurator (the representative) to undertake . . . all manner of transactions appertaining to the management of a commercial business’.

Book Two deals with certain forms of business organisation. While limited liability companies are essentially regulated by a separate statutory regime, the rules relating to various forms of commercial partnership are contained in the HGB – for example, the general partnership (Handelsgesellschaft, OHG), the limited partnership (Kommanditgesellschaft, KG) and the silent partnership (stille Gesellschaft). Book Three contains detailed provisions governing the maintenance and registration of business records and accounts. Book Four contains the general provisions which apply to commercial transactions between merchants. Commercial transactions are all those entered into by the merchant during the course of his or her business. The obligations imposed on merchants differ from those which apply in the case of ordinary non-commercial transactions. Book Five deals with the law relating to maritime and admiralty matters. Various aspects of commercial law will be considered in the chapters which follow, but at this stage a final point should be noted. It was stated above that as far as English law is concerned, the term commercial law does not have a precise meaning. However, this is not necessarily the case in other jurisdictions following the common law tradition. It will be recalled that all states in the USA, with the exception of Louisiana, have adopted the Uniform Commercial Code (UCC). Thus, a reference to the commercial law of, say, Carolina would likely be taken to be a reference to the UCC. Private international law is that branch of the law which comes into play when a legal issue has an international dimension. Consider, for example, a contract concluded between parties located in different countries. If a dispute arises between them that is likely to involve court action, a number of problems can arise which would not be present in a purely domestic context. For instance, before the courts of which country (claimant’s or defendant’s) should the case be brought? What system of law should govern the contract? If the claimant succeeds in winning an award of damages, will this be recognised and enforced by the courts of the country where the defendant and his assets are located? A similar type of problem can arise in other contexts – for example, over the right of succession to a deceased’s estate. Although the deceased might have been resident all his life in one country, he may have owned land in another. A major question may arise as to whether the succession rights to this property are governed by the law of the country where the deceased spent his life or the law of the place where the land is situated. In the examples cited above, a judge will refer to the rules of private international law in an attempt to resolve the questions posed. It should be remembered, however, that these rules form part of the domestic legal system concerned, so a French judge will refer to the French rules of private international law, a Brazilian judge to the Brazilian rules, a Japanese judge to the Japanese rules and so on, and, as is very often the case, these rules may differ significantly. Some of the practical issues flowing out of this problem will be considered in later chapters. It should be remembered that the categories of law which have just been discussed do not represent the sum total of law existing in any given system. They are merely examples of some, but not all, of the law’s main branches. In addition, it should not be assumed that all legal systems adopt precisely the same method of classification. The intention has been to give the reader an appreciation of the general types of law which will be found in the legal system of most countries.



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