法律知识导读教学课件全书电子讲义.pptx

Unit 1 Definition,Classification and Sources of Law法律的定义、分类和渊源法律的定义、分类和渊源Lead-in 法律是一种社会规范，以各种方式影响着我们的日常生活与整个社会。不同的国家对于法律的分类和命名各不相同，最一般的区分为规范国家与人民之间关系的“公法”（包括宪法、行政法和刑法）和规范私人间权利义务关系的“私法”（包括合同法、侵权法和财产法）。法律渊源是法的外在表现形式，通常把它分为正式意义上的和非正式意义上的两种。正式意义上的法律渊源，主要指以规范性法文件形式表现出来的成文法，如立法机关或立法主体制定的宪法、法律、法规等。非正式意义上的法律渊源，主要指具有法的意义的观念和其它有关准则，如权威性的法学著作、道德准则、习惯等。DefinitionAccording to its purposes:1.To maintain social order and resolve social disputes(as a set of rules of conduct,but also the means to impose responsibility and to enforce social justice.2.To bring about changes in our society and society brings about changes in the law(as a method of social control)ClassificationPublic laws:constitutional law,administrative law and criminal law.(applying to the public of a state or nation.)Private laws contracts,torts and property,each of which can be subdivided into several subjects.(dealing with the relationships between individuals)Substantive lawsProcedural laws -Substantive law defines rights,and procedural law establishes the procedures by which rights are protected and enforced.SourcesPrecedentsCustomsLegislationStatutory interpretationPreparatory worksPrecedents The judgments passed by some of the learned jurists became another significant source of law.(When there is no legislature on particular point,the judges depend on their own sense of right and wrong and decide the disputes.Such decisions become authority or guide for subsequent cases of a similar nature)Advantages:More flexible than legislation and custom.It is always ready to be used.Customs A custom is a rule which in a particular family or in a particular district or in a particular section,classes or tribes,has from long usage obtained the force of law.Advantages:It got recognition since the emergence of sovereignty on the horizon of jurisprudence;an exemption to the ordinary law of the land,and every custom is limited in its application;practices that have to be repeated for a period of time.Legislation Legislation is that source of law which consists in the declaration of legal rules by a competent authority.Advantages:1.the direct source of law.2.frames new laws,amends the old laws and cancels existing laws 3.the most important source of law making In modern times.The term legislature means any form of law making.Its scope has now been restricted so a particular form of law making.It not only creates new rules of law it also sweeps away existing inconvenient rules.Statutory interpretation Definition:Interpretation is the process of which the court seeks to ascertain the meaning of a particular legislature.Function:Through interpretation,the judiciary evolves the law and brings the changes in it and thus keeps abreast of law.Preparatory worksIn some legal cultures,some of the documents produced in the process leading up to legislation are subsequently used as guidelines on how to interpret and understand an act of legislationWords and Expressionslegal force 法律效力validity vldt n.(法律上)有效；合法性 precedent presd()nt n.判例；先例jurist drst n.法官；律师；法学家；法律著作家legislature ledslt n.立法机关；立法机构legislation ledsle()n n.立法；法律 jurisprudence,drsprud()ns n.法律体系；法学及其分支；法院审判规程statutory interpretation 法律解释ascertain,sten v.确定；查明judiciary dd()r n.司法部；法官keep abreast of 及时了解.的最新情况Notes:Substantive law and procedural law(实体法和程序法）实体法和程序法）：实体法是规定和确认权利和义务以及职权和责任为主要内容的法律，如宪法、行政法、民法、商法、刑法等；程序法是规定以保证权利和职权得以实现或行使，义务和责任得以履行的有关程序为主要内容的法律，如行政诉讼法、行政程序法、民事诉讼法、刑事诉讼法等。Supplementary ReadingLaw of the United StatesThe Constitution sets out the boundaries of federal law,which consists of acts of Congress,treaties ratified by the Senateregulations promulgated by the executive branch,and case law originating from the federal judiciary.Sources of Law of the United Statesconstitutional law(the most important)statutory lawtreatiesadministrative regulationscommon law(including case law)American common lawFirst,all U.S.states except Louisiana have enacted reception statutes which generally state that the common law of England(particularly judge-made law)is the law of the state.(except Louisiana)Second,a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S.states.Much of contemporary American common law has diverged significantly from English common law.(despite the presence of reception statutes)Federal lawFederal law originates with the Constitution,which gives Congress the power to enact statutes for certain limited purposes like regulating interstate commerce.Many lawsuits turn on the meaning of a federal statute or regulation,and judicial interpretations of such meaning carry legal force under the principle of stare decisis.Brief history of federal law:18th 19th century:It traditionally focusing on areas like military,money,foreign affairs,tariffs,intellectual property and mail,etc.20th century:It has been expanded into areas like aviation,telecommunications,railroads,pharmaceuticals,antitrust and trademarksState lawThe fifty American states are separate sovereigns with their own state constitutions and state governments and state courts.They retain plenary power to make laws covering anything not preempted by the federal Constitution,federal statutes,or international treaties ratified by the federal Senate.Local lawStates have delegated lawmaking powers to thousands of agencies,townships,counties,cities,and special districts.NotesStare decisis:It is the legal principle under which judges are obliged to follow the precedents established in prior decisions.Code of Federal Regulations（美国联邦法规总览）：（美国联邦法规总览）：The Code of Federal Regulations(CFR)is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.United States Code（美国法典）：（美国法典）：The United States Code(USC)is a compilation and codification of the general and permanent federal law of the United States.It contains 50 titles and is published every six years by the Office of the Law Revision Counsel of the US House of Representatives.Chevron doctrine（“切弗伦切弗伦案理论）案理论）：Chevron U.S.A.，Inc.v.Natural Resources Defense Council，Inc.,467 U.S.837(1984),was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agencys interpretation of its own statutory mandate.Unit 2 Legal Systems法律体系法律体系Lead-in法律体系是指具有相同或相近的传统、原则、制度和特征等要素的一类法律制度的总和。一般而言，大陆法系和英美法系被认为是当今世界最重要的两大法律体系。大陆法系，又称欧陆法系，是以罗马法为基础发展起来的法律的总称。英美法系，又称普通法法系，是以英国自中世纪以来的法律，特别是以普通法为基础发展起来的法律的总称。这两大法律体系也有交流与融合之处，如英国、美国澳洲、加拿大是典型的英美法系国家，但美国的路易斯安那州和加拿大的魁北克则采用的是大陆法系的法律制度。Legal Systemscivil law common law religious lawcombinations of these.Civil lawCivil law is the most widespread system of law around the world.It is also known as Continental European law.The central source of law that is recognized as authoritative is codifications in a constitution or statute passed by legislature,to amend a code.Sources:The Roman Empire,and more particularly,the Corpus Juris Civilis issued by the Emperor Justinian ca.529 AD;and partly influenced by religious laws such as Canon law and Islamic law.Four distinct groups:French civil law:in France,the Benelux countries,Italy,Spain and former colonies of those countries;German civil law:in Germany,Austria,Switzerland,Estonia,Latvia,former Yugoslav republics,Greece,Portugal and its former colonies,Turkey,Japan,and the Republic of China;Scandinavian civil law:in Denmark,Norway and Sweden.As historically integrated in the Scandinavian cultural sphere,Finland and Iceland also inherited the system.Chinese law:a mixture of civil law and socialist law in use in the the Peoples Republic of China.Common lawCommon law and equity are systems of law whose sources are the decisions in cases by judges.The doctrine of stare decisis or precedent by courts is the major difference to codified civil law systems.Development:1.developed in England;2.influenced by Anglo-Saxon law and to a much lesser extent by the Norman conquest of England which introduced legal concepts from Norman law;3.later inherited by the Commonwealth of Nations;4.almost every former colony of the British Empire has adopted it Current Status:Currently in practice in Ireland,most of the United Kingdom(England and Wales and Northern Ireland),Australia,New Zealand,Bangladesh,India(except Goa),South Africa,Canada(excluding Quebec),Hong Kong and the United States(excluding Louisiana)and many more places.In the European Union,the Court of Justice takes an approach mixing civil law(based on the treaties)with an attachment to the importance of case law.Religious lawReligious law refers to the notion of a religious system or document being used as a legal source,though the methodology used varies.The main kinds of religious law are Sharia in Islam,Halakha in Judaism,and Canon law in some Christian groups.The Islamic legal system of Sharia(Islamic law)and Fiqh(Islamic jurisprudence)is the most widely used religious law.The Halakha is followed by orthodox and conservative Jews in both ecclesiastical and civil relations.Canon law is not divine law,properly speaking,because it is not found in revelation.Instead,it is seen as human law inspired by the word of God and applying the demands of that revelation to the actual situation of the church.Words and Expressionscivil law 民法法系/大陆法系common law 普通法系/英美法系religious law 宗教法authoritative rttv adj.有权威的amend mend v.修改；改善；修正Roman Empire 罗马帝国（指公元前27年到公元476年的罗马奴隶制国家）Islamic law 伊斯兰法equity ekwt 衡平法jurisdiction,drsdk()n n.司法权；审判权；管辖权overrule vrul v.否决judicial decision 司法裁决ambiguous mbgjs adj.模糊不清的；引起歧义的aristocracy,rstkrs n.贵族；贵族统治Sharia ri:n.伊斯兰教教法hear h v.听审；审理orthodox :dks adj.正统的,传统的bishop bp n.主教NotesCorpus Juris Civilis（国法大全（国法大全/罗马民法法典罗马民法法典):The Corpus Juris Civilis(Body of Civil Law)is the modern name for a collection of fundamental works in jurisprudence,issued from 529 to 534 by order of Justinian I,Eastern Roman Emperor.equity（衡平法）（衡平法）:In jurisdictions following the English common law,equity is the set of legal principles that supplement strict rules of law where their application would operate harshly,so as to achieve what is sometimes referred to as natural justice.Canon law（教会法）：（教会法）：Canon law is the body of laws and regulations made by ecclesiastical authority(Church leadership),for the government of a Christian organization or church and its members.It is the internal ecclesiastical law governing the Catholic Church(both Latin Church and Eastern Catholic Churches),the Eastern and Oriental Orthodox churches,and the Anglican Communion of churches.Halakha（犹太教法）：（犹太教法）：Halakha(Hebrew:)is the collective body of Jewish religious laws,based on the Written and Oral Torah as well as customs and traditions compiled today in the Shulchan Aruch,the Code of Jewish Law.Anglican Communion（安立甘宗（安立甘宗/圣公会联谊会）：圣公会联谊会）：The Anglican Communion is an international association of churches consisting of the Church of England and of national and regional Anglican churches in full communion.It is the third largest communion in the world,after the Roman Catholic Church and the Eastern Orthodox Churches.Supplementary ReadingLaw of the Peoples Republic of ChinaBrief introductionLaw of the Peoples Republic of China is the legal regime of the Peoples Republic of China,with the separate legal traditions and systems of Mainland China,Hong Kong,and Macau.Two parts1.Mainland China:largely a civil law system,reflecting the influence of Continental European legal systems,especially the German civil law system in the 19th and early 20th centuries 2.Hong Kong:common law system Macau:legal system based on that of Portuguese civil law.Hong Kong and Macau have their own courts of final appeal and extradition policies;they are not within the jurisdiction of the court system within the Peoples Republic of China,which is only effective within mainland China,but their respective Basic Laws are subject to the interpretation power of the Standing Committee of the National Peoples Congress.(One Country,Two System)History China has a tradition of adopting civil law systems.(3 stages)1.Qing Dynasty:Hiring Japanese legal experts to copy legal systems from Japan,which stemmed from the German civil law system.2.After the establishment of the Republic of China in 1911:Maintaining the civil law system.3.late 1970s(after the end of the Cultural Revolution):A rather complete legal system with constitution,civil and commercial law,criminal law,administrative law,economic law,procedural law,etc have been established.Source of law1.the Constitution of the Peoples Republic of China(NPC)2.The principles of legislation and the validity and priority of law,rule and administrative regulations(in Legislation Law,constitutional provisions,basic laws and laws enacted by the National People s Congress and its standing committee)3.regulations(by State Council and its department)4.Local laws and regulations,autonomous-zone regulations,legal explanations and treaty norms (incorporated into domestic law immediately upon promulgation.)Signed international treaties are in practice automatically incorporated into PRC law,and they are superior to the relevant stipulations of PRC laws.However,the PRC reserves the right to make reservations regarding provisions of a treaty.Varieties of law1.The Constitution of the Peoples Republic of China2.National laws which are issued by the National Peoples Congress3.Administrative regulations,which are issued by the State Council4.Local decrees,which are issued by local Peoples Congresses5.Administrative and local rules,which are issued by an administrative agency or by a local Peoples Government substantive laws:administrative law,criminal law,civil law or business law,and economic law.procedural laws:civil procedure law,criminal procedure law and administrative procedure law.Civil Law and Civil Procedure Law The Civil Law governs personal and property relationships between natural persons and legal persons having equal status.Civil Procedural law advocates the principle of open trial-a system in which the second instance is the final hearing(although a trial supervision system exists in civil litigation which will allow a limited number of cases being tried by the third instance.)Criminal Law and Criminal Procedure LawCriminal Law is under heavy criticism or strong support,especially the insistence on capital punishment for many crimes.The Criminal Procedural Law provides for the defense of the accused.Administrative law and Administrative Procedure LawAdministrative Law:The State Council is authorized to promulgate administrative regulations,on social and economic sectors and affairs consistent with the laws adopted by the NPC and its Standing Committee.The Administrative Procedure Law of the Peoples Republic of China(1989)allows legal persons to bring legal challenges against administrative actions.Words and Expressionslegal regime 法律制度sophisticated sfstketd adj.高级的;复杂的