2 Classification of Law : Public Law vs Private Law Flashcards
What is Public Law ?
The law that governs the relationship between the individuals and the state.
Public Law may be divided into :
- Constitutional Law
- Criminal Law
- Administrative Law
Contents of the Constitutional Law
- the structure of the various organs of government (executive, legislative, judiciary) and their functions
- explains the rights of citizens
What is Administrative Law?
A branch of public law that defines and ensures the powers of the government, its agencies, tribunals and other authorities are to be exercised properly.
Purpose of Administrative Law
Protect citizens against the abuse of power by the government agencies.
Why is the Criminal Law a part of public law ?
A crime is regarded as a wrongful act against the state and the general public.
What is Criminal Law ?
Criminal Law defines conducts which are prohibited by the state and also prescribes for their punishments.
Elements of a crime
- Actus Reus (wrongful conduct)
- Mens Rea (guilty mind)
Translation of the Latin Maxim “Actus non facit reum nisi mens sit rea”
“An act does not render a man guilty of a crime unless his mind is equally guilty.”
What is the Penal Code ?
The main legislation that defines criminal offences and sets out their punishments.
Agencies of the state that are involved in the administration of criminal justice :
- Enforcement agencies such as Police, Malaysia Anti-Corruption Commissiin (MACC), Customs Department etc.
- Public Prosecutor
- Courts
- Prison Department
The criminal justice process :
- Investigation
- Prosecution/Trials
- Appeals
- Serving the punishment (Imprisonment, fines, whipping)
What is Private Law ?
- The law that deals with the rights and duties between private individuals.
- Regulates the relationship between one citizen and another.
Examples of Private Law :
- Law of Contract
- Law of Tort
- Family Law
- Labour Law
What is Law of Contract ?
- Codified under the Contracts Act 1950
- It prescribes elements to form a valid contract and remedies if there is a breach of contract.
The essential elements of a contract (6)
- Offer
- Acceptance
- Intention to create legal relations
- Consideration
- Certainty of the subject matter
- Capacity to enter a contract
Remedies available if there is a breach of contract (5)
- Claim for damages (monetary compensation to the non-breaching party)
- Specific performance (order by the court for the breaching party to carry out of perform its obligations)
- Rescission (termination of contract)
- Injunction (restraining a party from continuing breaching a contract)
- Quantum Meruit (payment for the part of contract which has been done/completed)
What is Law of Tort ?
A law that provides a remedy for someone who suffers loss or harm due to an act or omission done by another person (other than a breach of contract).
Example of tortious acts (4)
- Negligence (conduct, or a failure to act as a reasonable man would do and somone suffers loss as a result of that)
- Defamation (making a statement either in written or spoken form which harms a person’s reputation)
- Trespass to person (a direct or intentional interference with a person’s body or liberty)
- Trespass to property (unlawful intrusikn to someone’s property or land)
What is Family Law ?
An area of law that deals with family matters such as marriage, divorce, child custody and maintenance, and adoption.
2 sets of Family Law in Malaysia
- Syariah Law and Syariah Courts deal with Muslims
- Civil Courts deal with Non-Muslims
What is Labour Law ?
A law that regulates the relationship between employers, employees and trade unions.
The responsibilities of employers and rights of employees stipulated in Labour Law (5)
- Minimum wages
- Working hours
- Leave entitlement
- Termination of employment
- Other benefits (Employees Provident Fund, PERKESO etc.)
Purpose of Industrial Court
Provides mechanisms to deal with the disputes involving employers, employees and trade unions. Eg; unlawful dismissal.
Statutes that deal with Labour Law issues :
- Employment Act 1955 (Revised - 1981)
- Industrial Relations Act 1967 (Revised - 1976)
- Employees’ Social Security Act 1969
- Employees Provident Fund Act 1991
What is International Law ?
A body of rules and principles that apply between sovereign states and other entities such as IGOs, MNCs, NGOs and private individuals.
What is Public International Law ?
Law that prescribes the rights and obligations of sovereign states when dealing with each other.
Public International Law os normally developed through
instruments agreed by states such as :
- Treaties (United Nations Charter)
- Conventions (Convention on the Rights of the Child, United Nations Convention on the Law of the Sea, Convention on the Elimination of All Forms of Discrimination Against Women etc.)
What is Private International Law ?
Law that deals with conflicts between citizens or corporations of different countries. Also known as “Conflict of Laws”.
Private International Law plays a significant role in determining (3)
- Which court will have jurisdiction to settle the dispute?
- Which law will be applicable?
- Whether the judgement from a Malaysian court can be enforced in Thailand?
What disputes are normally resolved using Arbitration process ?
Disputes arising in the context of international commercial transactions.
What is Arbitration process?
Arbitration is not a court process. It is a private process where disputing parties agree that one or several independent individuals can make a decision about the dispute after receiving evidence and hearing arguments.
Awards given via the Arbitration process can be easily enforced in every state that
has signed the The New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (To date about 172 states).
What does the Arbitration Act 2005 provide ?
The legal framework for domestic arbitration and international arbitration.
