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FAG 1009 midsem > Classification of Law : Public Law vs Private Law > Flashcards

Classification of Law : Public Law vs Private Law Flashcards

1
Q

What is Public Law ?

A

The law that governs the relationship between the individuals and the state.

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2
Q

Public Law may be divided into :

A
  • Constitutional Law
  • Criminal Law
  • Administrative Law
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3
Q

Contents of the Constitutional Law

A
  • the structure of the various organs of government (executive, legislative, judiciary) and their functions
  • explains the rights of citizens
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4
Q

What is Administrative Law?

A

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.

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5
Q

Purpose of Administrative Law

A

Protect citizens against the abuse of power by the government agencies.

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6
Q

Why is the Criminal Law a part of public law ?

A

A crime is regarded as a wrongful act against the state and the general public.

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7
Q

What is Criminal Law ?

A

Criminal Law defines conducts which are prohibuted by the state and also prescribes for their punishments.

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8
Q

Elements of a crime

A
  • Actus Reus (wrongful conduct)
  • Mens Rea (guilty mind)
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9
Q

Translation of the Latin Maxim “Actus non facit reum nisi mens sit rea”

A

“An act does not render a man guilty of a crime unless his mind is equally guilty.”

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10
Q

What is the Penal Code ?

A

The main legislation that defines criminal offences and sets out their punishments.

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11
Q

Agencies of the state that are involved in the administration of criminal justice :

A
  • Enforcement agencies such as Police, Malaysia Anti-Corruption Commissiin (MACC), Customs Department etc.
  • Public Prosecutor
  • Courts
  • Prison Department
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12
Q

The criminal justice process :

A
  • Investigation
  • Prosecution/Trials
  • Appeals
  • Serving the punishment (Imprisonment, fines, whipping)
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13
Q

What is Private Law ?

A
  • The law that deals with the rights and duties between private individuals.
  • Regulates the relationship between one citizen and another.
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14
Q

Examples of Private Law :

A
  • Law of Contract
  • Law of Tort
  • Family Law
  • Labour Law
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15
Q

What is Law of Contract ?

A
  • Codified under the Contracts Act 1950
  • It prescribes elements to form a valid contract and remedies if there is a breach of contract.
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16
Q

The essential elements of a contract (6)

A
  • Offer
  • Acceptance
  • Intention to create legal relations
  • Consideration
  • Certainty of the subject matter
  • Capacity to enter a contract
17
Q

Remedies available if there is a breach of contract (5)

A
  • 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)
18
Q

What is Law of Tort ?

A

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).

19
Q

Example of tortious acts (4)

A
  • 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)
20
Q

What is Family Law ?

A

An area of law that deals with family matters such as marriage, divorce, child custody and maintenance, and adoption.

21
Q

2 sets of Family Law in Malaysia

A
  • Syariah Law and Syariah Courts deal with Muslims
  • Civil Courts deal with Non-Muslims
22
Q

What is Labour Law ?

A

A law that regulates the relationship between employers, employees and trade unions.

23
Q

The responsibilities of employers and rights of employees stipulated in Labour Law (5)

A
  • Minimum wages
  • Working hours
  • Leave entitlement
  • Termination of employment
  • Other benefits (Employees Provident Fund, PERKESO etc.)
24
Q

Purpose of Industrial Court

A

Provides mechanisms to deal with the disputes involving employers, employees and trade unions. Eg; unlawful dismissal.

25
Q

Statutes that deal with Labour Law issues :

A
  • Employment Act 1955 (Revised - 1981)
  • Industrial Relations Act 1967 (Revised - 1976)
  • Employees’ Social Security Act 1969
  • Employees Provident Fund Act 1991
26
Q

What is International Law ?

A

A body of rules and principles that apply between sovereign states and other entities such as IGOs, MNCs, NGOs and private individuals.

27
Q

What is Public International Law ?

A

Law that prescribes the rights and obligations of sovereign states when dealing with each other.

28
Q

Public International Law os normally developed through

A

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.)

29
Q

What is Private International Law ?

A

Law that deals with conflicts between citizens or corporations of different countries. Also known as “Conflict of Laws”.

30
Q

Private International Law plays a significant role in determining (3)

A
  • 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?
31
Q

What disputes are normally resolved using Arbitration process ?

A

Disputes arising in the context of international commercial transactions.

32
Q

What is Arbitration process?

A

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.

33
Q

Awards given via the Arbitration process can be easily enforced in every state that

A

has signed the The New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (To date about 172 states).

34
Q

What does the Arbitration Act 2005 provide ?

A

The legal framework for domestic arbitration and international arbitration.

FAG 1009 midsem (5 decks)

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