ENGLAND AND WALES AS A DISTINCT JURISDICTION




О.В. АТЬМАН

 

ВНЕАУДИТОРНОЕ ЧТЕНИЕ: СБОРНИК ТЕКСТОВ ДЛЯ СТУДЕНТОВ ЮРИДИЧЕСКИХ СПЕЦИАЛЬНОСТЕЙ (ENGLISH, DEUTSCH, FRANÇAIS)

 


ФЕДЕРАЛЬНОЕ ГОСУДАРСТВЕННОЕ ОБРАЗОВАТЕЛЬНОЕ УЧРЕЖДЕНИЕ ВЫСШЕГО ПРОФЕССИОНАЛЬНОГО ОБРАЗОВАНИЯ

ВОЛГОГРАДСКАЯ АКАДЕМИЯ МИНИСТЕРСТВА ВНУТРЕННИХ ДЕЛ РОССИЙСКОЙ ФЕДЕРАЦИИ

КАФЕДРА ГУМАНИТАРНЫХ И СОЦИАЛЬНО-ЭКОНОМИЧЕСКИХ ДИСЦИПЛИН

ЮРИДИЧЕСКИЙ ФАКУЛЬТЕТ

 

Т.В. КОТЛЯР

О.А. МАЛЕТИНА

О.В. АТЬМАН

Внеаудиторное чтение: сборник текстов для студентов юридических специальностей (English, Deutsch, Français)

Учебное пособие для студентов юридических специальностей

 

 

Волгоград – 2011


Рецензенты:

доктор филол. наук, проф. ВолГМУ В.В. Жура

канд. филол. наук, доц. ВГПУ И.В. Бганцева

 

Издаётся в авторской редакции

 

 

Котляр Т.В., Малетина О.А., Атьман О.В.

 

Внеаудиторное чтение: сборник текстов для студентов юридических специальностей (English, Deutsch, Français): Учебное пособие. – Волгоград, 2011. – 246 с.

 

Данное учебное пособие разработано на основе аутентичных текстов английских, немецких и французских авторов, которые затрагивают различные юридические проблемы. Они предназначены для студентов 1-2 курсов, обучающихся по специальностям 030501.65 «Юриспруденция», 030502.65 «Судебная экспертиза», направлению 030500.62 «Юриспруденция». В соответствии с государственным стандартом высшего профессионального образования для специальностей 030501.65 «Юриспруденция»; 030502.65 «Судебная экспертиза», направления 030500.62 «Юриспруденция», студенты должны уметь читать, понимать, переводить и пересказывать тексты по специальности, уметь вести беседу по содержанию прочитанного текста. Учебное пособие позволяет формировать и развивать навыки чтения и понимания иностранного текста по специальности.

 


CONTENTS

CONTENTS. 3

PREFACE.. 4

PART 1. 5

ABFCHNITT 2. 79

PARTIE 3. 215

BIBLIOGRAPHY.. 244


PREFACE

Данное учебное пособие разработано на основе аутентичных текстов, которые затрагивают различные юридические проблемы. Они предназначены для студентов 1-2 курсов, обучающихся по специальностям «Юриспруденция» 030501.65, «Судебная экспертиза» 030502.65.

Цель данного учебного пособия – активизировать навыки внеаудиторного чтения профессионально ориентированных текстов на иностранных языках (английский, немецкий, французский языки), научить студентов применять терминологическую лексику в практике профессиональной коммуникации.

Пособие из состоит из трех частей, которые включают тексты на английском, немецком и французском языках. Данное учебное пособие позволяет студентам овладеть навыками различных видов чтения в зависимости от поставленной цели.

Данное учебное пособие отвечает современным требованиям к обучению в сфере профессиональной коммуникации, поскольку позволяет студентам овладеть навыками аналитического чтения и научиться переводить профессионально ориентированные тексты.

Учебное пособие может быть использовано и при обучении иностранному языку следователей, экспертов-криминалистов, работников служб криминальной полиции, а также всеми желающими получить навыки профессиональной коммуникации.


PART 1

ENGLISH LAW

The Royal Courts of Justice on the Strand, London is the seat of the High Court of Justice and the Court of Appeal.

English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana (as opposed to civil law or pluralist systems in use in other countries). It was exported to Commonwealth countries while the British Empire was established and maintained, and it forms the basis of the jurisprudence of most of those countries. English law prior to the American revolution is still part of the law of the United States through reception statutes, except in Louisiana, and provides the basis for many American legal traditions and policies, though it has no superseding jurisdiction.

English law in its strictest sense applies within the jurisdiction of England and Wales. Whilst Wales now has a devolved Assembly, any legislation which that Assembly enacts is enacted in particular circumscribed policy areas defined by the Government of Wales Act 2006, other legislation of the U.K. Parliament, or by orders in council given under the authority of the 2006 Act. Furthermore that legislation is, as with any by-law made by any other body within England and Wales, interpreted by the undivided judiciary of England and Wales.

The essence of English common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent (stare decisis) to the facts before them. A decision of the highest appeal court in England and Wales, the Supreme Court of the United Kingdom, is binding on every other court in the hierarchy, and they will follow its directions. For example, there is no statute making murder illegal. It is a common law crime – so although there is no written Act of Parliament making murder illegal, it is illegal by virtue of the constitutional authority of the courts and their previous decisions. Common law can be amended or repealed by Parliament; murder, by way of example, carries a mandatory life sentence today, but had previously allowed the death penalty.

England and Wales are constituent countries of the United Kingdom, which is a member of the European Union. Hence, EU law is a part of English law. The European Union consists mainly of countries which use civil law and so the civil law system is also in England in this form. The European Court of Justice can direct English and Welsh courts on the meaning of areas of law in which the EU has passed legislation.

The oldest law currently in force is the Distress Act 1267, part of the Statute of Marlborough, (52 Hen. 3). Three sections of Magna Carta, originally signed in 1215 and a landmark in the development of English law, are extant, but they date to the reissuing of the law in 1297.

ENGLAND AND WALES AS A DISTINCT JURISDICTION

The United Kingdom is a state consisting of several legal jurisdictions: (a) England and Wales, (b) Scotland and (c) Northern Ireland. The formerly separate jurisdiction of Wales was absorbed into England by Henry VII Tudor. By the Act of Union, 1707 Scotland retained an independent church and judiciary. Ireland lost its independent parliament later than Scotland but its established Anglican church was historically an archbishopric of the Church of England headed by the king or queen and deferring to the Archbishop of Canterbury, for the most part the legal system is separate from that of England and Wales. The legal system of Ireland is completely separate from that of the U.K. now, but that of Northern Ireland retains some links from the Imperial past, inasmuch as it is based on the medieval English common law system, there are many English statutes from the time of Poynings' Law on that apply in Northern Ireland and there is an appeal to the Supreme Court of the United Kingdom from the Court of Appeal of Northern Ireland.

"The civilized portion of the earth is divided up into certain units of territory in each of which a particular law proper to that territory alone prevails, and that territory is for legal purposes a unit."

§ 2.2. What Determines the State. — It has been seen that the existence of separate legal units within the dominions of a single sovereign is a fact, the result of historical accidents… when Hawaii was annexed to the United States it remained a separate legal unit.

Statehood is also defined in public international law by the Montevideo Convention, which refers to the following criteria as necessary to establish true statehood: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

Some jurisdictions such as Australia use the term "law unit" and some authors use the word "country", believing that these words are less confusing than the use of the word "state". The majority view is that "state" is the best term. Hence, for Conflict purposes, England and Wales constitute a single state.

This is important for a number of reasons, one of the more significant being the distinction between nationality and domicile. Thus, an individual would have a British nationality and a domicile in one of the constituent states, the latter law defining all aspects of a person's status and capacity. Dicey and Morris (p26) list the separate states in the British Islands. "England, Scotland, Northern Ireland, the Isle of Man, Jersey, Guernsey, Alderney, and Sark... is a separate country in the sense of the conflict of laws, though not one of them is a State known to public international law." But this may be varied by statute. The United Kingdom is one state for the purposes of the Bills of Exchange Act 1882. Great Britain is a single state for the purposes of the Companies Act 1985. Traditionally authors referred to the legal unit or state of England and Wales as England although this usage is becoming politically unacceptable in the last few decades.

OVERSEAS INFLUENCES

The influences are two-way.

The United Kingdom exported its legal system to the Commonwealth countries during the British Empire, and many aspects of that system have persisted after the British withdrew or granted independence to former dominions. English law prior to the Wars of Independence is still an influence on United States law, and provides the basis for many American legal traditions and policies. Many states that were formerly subject to English law (such as Australia) continue to recognize a link to English law – subject, of course, to statutory modification and judicial revision to match the law to local conditions – and decisions from the English law reports continue to be cited from time to time as persuasive authority in present day judicial opinions. For a few states, the Judicial Committee of the Privy Council remains the ultimate court of appeal. Many jurisdictions which were formerly subject to English law (such as Hong Kong) continue to recognise the common law of England as their own – subject, of course, to statutory modification and judicial revision – and decisions from the English Reports continue to be cited from time to time as persuasive authority in present day judicial opinions.

The UK is a dualist in its relationship with international law, i.e. international obligations have to be formally incorporated into English law before the courts are obliged to apply supranational laws. For example, the European Convention on Human Rights and Fundamental Freedoms was signed in 1950 and the UK allowed individuals to directly petition the European Commission on Human Rights from 1966. Now s6 (1) Human Rights Act 1998 (HRA) makes it unlawful "... for a public authority to act in a way which is incompatible with a convention right", where a "public authority" is any person or body which exercises a public function, expressly including the courts but expressly excluding Parliament. Although the European Convention has begun to be applied to the acts of non-state agents, the HRA does not make the Convention specifically applicable between private parties. Courts have taken the Convention into account in interpreting the common law. They also must take the Convention into account in interpreting Acts of Parliament, but must ultimately follow the terms of the Act even if inconsistent with the Convention (s3 HRA).

Similarly, because the UK remains a strong international trading nation, international consistency of decision making is of vital importance, so the Admiralty is strongly influenced by Public International Law and the modern commercial treaties and conventions regulating shipping.

COMMON LAW IN THE UK

The legal system in many countries, including Australia, Canada (except Quebec), Ghana, Hong Kong, India, Jamaica, Malaysia, New Zealand, Pakistan, Tanzania, the USA (except Louisiana), the Bahamas, and Zambia, is based on common law. The common law consists of the substantive law and procedural rules that are created by the judicial decisions made in the courts. Although legislation may override such decisions, the legislation itself is subject to interpretation and refinement in the courts.

Essential to the common law is the hierarchy of the courts in all of the UK jurisdictions and the principle of binding precedent. In practice, this means that the decision of a higher court is binding on a lower court, that is, the decision must be followed, and in the course of a trial the judges must refer to existing precedents. They'll also consider decisions made in a lower court, although they're not bound to follow them. However, a rule set by a court of greater or equal status must be applied if it's to the point – relevant or pertinent.

During a trial, counsel will cite cases and either attempt to distinguish the case at trial from those referred to or, alternatively, argue that the rule at law reasoned and established in a previous case is applicable and should be followed. Hence the term case law. A case will inevitably involve many facts and issues of evidence. The eventual decision itself doesn't actually set the precedent. The precedent is the rule of law which the first instance judge relied on in determining the case's outcome.

Judges in a case may make other statements of law. Whilst not constituting binding precedents, these may be considered in subsequent cases and may be cited as persuasive authority, if appropriate. Since rhe Human Rights Act of 1988, all courts in the Unired Kingdom must now refer to the ultimate authority of the European Court of Human Rights, including all previous decisions made by that court.

LAW REPORTS

'The development and application of the common law system pivots upon the existence of a comprehensive system of reporting cases. The Law Reports, published annually by the Council of Law Reporting, are perhaps the most authoritative and frequently cited set of reports, differing from other series of law reports, such as Butterworth's All England Law Reporrs [All ER] or specialist reports like Lloyds Law Reports, in that they contain summaries of counsel's arguments and are revised by the judge sitting in each respective case before publication. Cases aren't always reported in the year that they are decided so a case citation will refer to the volume and year in which the case was published, for example Meah v Roberts, [1978] 1 All ER 97. Developments in electronic databases have increased public access to recent cases.

THE COURT SYSTEM

CIVIL COURTS

Both criminal and civil courts in England and Wales primarily hear evidence and aim to determine what exactly happened in a case. Broadly speaking, the lower courts decide matters of fact and the upper courts normally deal with points of law. In England, simple civil actions, for example family matters such as undefended divorce, are normally heard in either rhe Magistrates' Courts or the County Courts.

Judges have different titles depending on their experience, training, and level. A single stipendiary magistrate or three lay magistrates sit in the Magistrates' Court. There's no jury in a Magistrates' Court. Family cases may go on appeal from the Magistrates' Court to the County Courts. The County Court also hears complex first instance civil cases, such as contract disputes, compensation claims, consumer complaints about faulty goods or services, and bankruptcy cases. Claimants, previously referred to as plaintiffs, may seek a legal remedy for some harm or injury they have suffered. There are circuit judges and recorders who sit in the County Courts, usually without a jury. Juries are now rare in civil actions, so normally the judge considers both law and fact.

More complex civil cases, such as the administration of estates and actions for the recovery of land, are heard in the High Court of Justice, which is divided into three divisions: Family, Chancery and Queen's Bench. The court has both original, that is, first instance, and appellate jurisdiction. From the High Court cases may go on appeal to the civil division of the Court of Appeal, which can reverse or uphold a decision of the lower courts. Its decisions bind all the lower civil courts. Civil cases may leapfrog from the High Court to the House of Lords, bypassing the Court of Appeal, when points of law of general public importance arc involved. Appellants must, however, apply for leave to appeal. Decisions of rhe House of Lords are binding on all other courts but not necessarily on itself. The court of the House of Lords consists of twelve life peers appointed from judges and barristers. The quorum, or minimum number, of law lords for an appeal hearing is normally three, but generally there is a sitting of five judges.

CRIMINAL COURTS

About 95% of all criminal cases in England and Wales are tried in the Magistrates' Courts, which deal with petty crimes, that is, less serious ones. In certain circumstances, the court may commit an accused person to the Crown Court for more severe punishment, either by way of a fine or imprisonment. Except in cases of homicide, children under 14 and young persons – that is, minors between 14 and 17 years of age – must always be tried summarily, meaning without a jury, by a Youth Court. A Youth Court is a branch of the Magistrates' Court. Indictable offences, that is, more serious ones such as theft, assault, drug dealing, and murder, are reserved for trial in the Crown Court. In almost all criminal cases, the State, in the name of the Crown, prosecutes a person alleged to have committed a crime. In England and Wales, a jury of twelve people decides whether the defendant is guilty of the crime she or he is charged with. The Crown Court may hear cases in circuit areas. From the Crown Courr, appeal against conviction or sentence lies to the Criminal Division of the Court of Appeal. If leave to appeal is granted by that court, cases may go on appeal to the House of Lords.

JUDGES

An Act of Parliament lays down the mandatory requirements for most judicial offices. Candidates must have practised as a lawyer or judge for a specified time and must meet other statutory requirements for specific posts. The hierarchical structure of the courts informs the process of selection to the Judiciary. Experience gained as a judge in a lower court is one of the qualifications for appointment to a higher court. Senior appointments to the Court of Appeal and the High Court are made by the Queen following rhe recommendation of the Prime Minister, currently on the advice of the Lord Chancellor – a senior member of the government and head of the judicial system.

THE TRAINING OF JUDGES

The Judicial Studies Board (JSB) is responsible for the training of judges, lay magistrates, and members of Tribunals in England and Wales. The JSB would normally organise the following for an appointee Recorder in rhe Crown Court: an induction course; visits to penal establishments, for example prison and young offender institutions; meetings with personnel from the Probation Service, which deals with criminals, often young offenders, who are not sent to prison unless they reoffend, but who are under the supervision of a probation officer.

The appointee would experience a period of sitting in on the Bench – the judge's area of the Court – with a Circuit Judge. In his first week after appointment he would be supervised by a Circuit Judge. Practical guidelines for judges are set out in Bench Books.



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