Structure Of The Legal System Flashcards
What are the attributes of Civil Law. Name 7
It settles disputes between individuals
There is no concept of punishment
Objective is to compensate the wronged party
Sued in court
Need to prove ‘on the balance of probability’
If liable then compensation is payable
It is between a plaintiff(or accuser or claimant) and a defendant
Personal action brought by the aggrieved party
Court awards damages or an equitable remedy if damages are inappropriate.
What are the attributes of Criminal Law
Public law
๏ A wrongdoer has broken the law
๏ A wrong done to society
๏ Prosecuted in court
๏ If guilty, then punished
๏ Community service, fine, imprisonment
๏ Prosecutor and accused
๏ Need to prove ‘beyond reasonable doubt’
๏ Police decide whether to prosecute
๏ This decision is reviewed by the Crown Prosecution Service
What is Ratio decidendi
Its the fundamental bit of a case that ultimately influences the decision of the judge
What is orbiter dicter
They are other things said during the trial which are not determinants
What are the main remedies of Equity Law
‣ Specific performance
‣ Injunction
‣ Rescission
‣ Rectification
What is “Specific Performance”?
Its a remedy of equity law which requires the defendant to do what he is contractually required to do.
What is Injunction as a remedy of equity Law?
This means the defendant has to stop doing whatever he is being sued for
What does Rescission mean?
This is a remedy if equity law which restores the innocent part to their former state
What does rectification as a remedy of equity law imply?
This implies a correction of contractual errors due to miscommunication and misunderstanding so that the contract can continue.
What are the attributes of ratio decidendi?
๏ Ratio is ‘the reason for the decision’
๏ Ratio is binding on future judges in similar cases
๏ Reversing – higher court reverses lower court decision in same case
๏ Overruling – higher court overrules lower court decision in different case
๏ Distinguishing – court avoids earlier precedent by distinguishing the facts
๏ Ratio not binding if too obscure
๏ Ratio not binding if made without care ( per incuriam )( without having all the facts or taking them in consideration)
๏ Ratio not binding if in conflict with a basic principle of law
๏ Ratio not binding if in conflict with European law
๏ Ratio not binding if too wide
๏ Ratio not binding if made in inferior court
What is reversing
This occurs when a higher court comes to an opposite decision from that of a lower court in the same case effectively reversing the former courts decision on that case.
What is overruling
This occurs when a superior court nullifies the precedent-nature of a former case from an inferior court
What is distinguishing
This occurs when a court avoids an earlier precedent by distinguishing the facts from the current
Judicial precedent may not be applied if?
if earlier decision was made per incuriam ( without care )
if too obscure
if in conflict with basis principle of law
if too wide
( in Europe ) if in conflict with European
law
if facts are not materially similar
Rules for applying Judicial precedent are:
must be based on a point of law, not a point of fact
must be part of the ratio decidendi in the previous case
material facts should be sufficiently similar
prior court must have superior status in the hierarchy of the courts
