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vypracovaná otázka (19kový) č. 2 (q_2.doc)

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1. Classifications of law

Ways of classification:

1. descriptive and prescriptive
2. civil and criminal
3. substantive and procedural
4. private (civil) and public

1:

DESCRIPTIVE LAW:

1. Considering various forms of behaviour – it simply describes how people, or even natural phenomena, usually behave, e.g. law of gravity etc.

PRESCRIPTIVE LAW:

2. prescribes how people ought to behave, e. g. the speed limit imposed upon drivers
3. they regulate relations between people in all societies
4. some of them are customs – informal rules of social and moral behaviour which are usually not written down and if we bread these rules other members of society may ridicule us, critize us, act violently toward us or refuse to have anything to do with us
5. some of them are precise laws made by nations (government-made laws) and enforced equally against all citizens with the use of a system of courts backed by the power of the police
6. the purpose of making and enforcing law is social control – public laws establish the authority of the government itself, and civil laws provide a framework for interaction among citizens, and the implementation of justice, justice according to people is very important and fair.

2:

CIVIL LAW:

7. regulates the relationships between individuals or bodies
8. as for parties to the action – a civil case involves two or more individual people or bodies – civil actions are usually started by individuals – plaintiffs; a civil action between Ms. Sanchez and Mr. Smith would be described as “Sanchez vs. Smith”, writing the name of the person who started the action first
9. examples: law of contract, tort, property
10. civil proceedings terminology

a plaintiff sues (brings an action against) a defendant

11. if the proceedings are successful they result in judgement for the plaintiff and the judgement may order the defendant to pay the plaintiff money, or to transfer property to him, or to do or not to do something (injunction), or to perform a contract (specific performance)
12. in civil cases the word liable is used (as guilty in criminal cases)
13. standards of proof: on the balance of probabilities, the court weighs all the evidence and decides what is most probable
14. courts practising civil jurisdiction:
15. magistrates – they have civil jurisdiction over licensing and family matters but they have criminal jurisdiction as well
16. county courts – only civil jurisdiction
17. High court – civil apart from appeals

CRIMINAL LAW:

18. regulates the legal relationships between the state and individual people and bodies
19. by this law the state regulates the conduct of its citizens, criminal offences range from petty (parking offences) to the very serious (murder, rape, etc.)
20. as for the parties to the action – a criminal case involves the state and an individual person or body
21. criminal actions are started by the prosecution (prosecuting authority – the state)
22. a criminal case against a person called Ms. Sanchez would be described as “The people vs. Sanchez” in the U.S. and “R. (Regina, that is, the Queen) vs. Sanchez” in England
23. criminal proceedings terminology:
24. a prosecutor prosecuting a criminal
25. if the proceedings are successful the result of the prosecution is a conviction, the defendant may be punished by one of a variety of punishments ranging from life imprisonment to a fine, or else may be released on probation or discharged without punishment or dealt with various other ways
26. in criminal cases the word guilty is used
27. standards of proof: beyond reasonable doubt, the prosecution must prove the guilt of a criminal otherwise a crime cannot be proven if the person judging it doubt the guilt of the suspect and have no reason (not just a feeling or intuition) for this doubt
28. courts practising criminal jurisdiction:
29. magistrates
30. Crown court – exclusively criminal jurisdiction

3:

SUBSTANTIVE LAW:

31. the part of the law that lays down people’s rights, duties, liberties and powers – the actual content or substance of law, these are the rules on which the courts base their decisions
32. governs the existence and definitions of those rights

PROCEDURAL (ADJECTIVE) LAW:

33. a set of rules which determine the course of an action, the govern such matters as how the case is to be presented, in what court it shall lie, or when it is to be tried, they govern the machinery of litigation
34. the rules of procedure ale now more flexible than once they were and from time to time they are amended

4:

PRIVATE (CIVIL) LAW:

35. concerns disputes among citizens within a country
36. the main categories of English civil law – contracts (binding agreements between people or companies), torts (wrongs committed by one individual against another individual’s person, property, or reputation), trusts (arrangements whereby a person administers property for another person’s benefit rather than his own Land Law), probate (arrangements for dealing with property after the owner’s death), family law

PUBLIC LAW:

37. concerns disputes between citizens and the state, or between one state and another
38. the main categories of public law – crimes (wrongs which, even when committed against an individual are considered to harm the well-being of society in general), constitutional law (regulation of how the law itself operates and of the relation between private citizen and government), international law (regulations of relations between governments and also between private citizens of one country and those of another).

2. Vicarious liability in tort

Vicarious liability is the liability of  one person (X) for the torts of another person (Y). It is a parasitic form of liability: X can only be liable if it can first be shown that Y has committed a tort. Another important point is that the fact that X is made liable does not mean that Y is relieved from liability. There are several categories of relationships where vicarious liability may possibly be established: employers and employees, employers and independent contractors, parents and children, teachers and pupils…etc.

Employers are strictly liable for torts committed by their employees in the course of employment. An employee is a person subject to the control and direction of his employer in respect of how work is done (the ’control test’). The test is the right of control, not how much control was in fact exercised. The employer may be liable even if the employee acts contrary to clear instructions. The question of whether the tort was committed in the course of employment consists in distinguishing between the improper performance of acts within the scope of employment and acts which are beyond its scope.

Independent contractors are employed under a contract for services, not under a contract of service. Employers are not generally liable for contractor’s torts, but there are many exceptions, e.g. negligent selection of an independent contractor, ultra-hazardous activities…etc.

Parents are not vicariously liable for torts committed by their children, but they can be liable for their own negligence or breach of statutory duty when their children commit torts.

Teachers are not vicariously liable for pupils, but there can be liability for the teacher’s or educational authority’s own negligence.