1、复习提纲,Assessment task 1 covered outcome 1,Assessment task 1 考试简介,考试形式：开卷 考试时长：90分钟 考试形式：10道主观问答题 答题说明：题目中的所有问点都要做答；相关内容应当全部涵盖；答题条理清楚，思维通畅。,The main sources of modern Scots Law,考试重点：现代苏格兰法的主要渊源,Sources of Scots Law (see page 21),Todays laws which govern todays society come from two main sources. There
2、 are:1. Statutory Sources of LawLegislation is by far the most important source of law today.（see page 21）2. Common Law Sources,概念区分,制定法成文法法律渊源： Statutory Sources of law Legislation,议会制定法： Acts of Parliament Statutory Legislation Acts Statutes Statute law,制定法成文法法律渊源： Statutory Sources of Law Legisla
3、tion,a. Acts of Parliament 议会制定法 b. Delegated Legislation 授权立法 c. European Union Law 欧共体法律,Passed by United Kingdom Parliament 国会法,Passed by both the House of Commons and the House of Lords and then given the Royal Assent.Most-apply to the whole of the United Kingdom; Some-only apply to Scotland (“S
4、cotland” will appear in their title),Passed by Scottish Parliament 苏格兰地方议会法,The Scotland Act 1998 means that the Scottish Parliament has the power to make laws on any topic not observed to the United Kingdom Parliament. Only one chamber. Start as a bill.,Which is the Superior legislative body: the W
5、estminster Parliament or the Scottish Parliament?,Answer: the Westminster Parliament (the UK parliament),Why: Still the national Parliament for the UK although much power has been devolved（移交） to the Scottish Parliament. It took an Act of the Westminster Parliament (Scotland Act 1998) to create the
6、Parliament and transfer（转让） power. An act of the Westminster Parliament can in theory abolish the Scottish Parliament. The Scottish Parliament is inferior（下级） to Westminster in the sense （在某种意义上） that certain areas remain under the exclusivity（独占性） of the Westminster parliament, e.g. Defence and For
7、eign Policy).,NB ： This is an area whereby areas that are currently under the control of Westminster may over time be transferred to the remit of the Scottish Parliament. This is particularly worthy of note in respect of issues relating to potential Scottish independence.,Acts of parliament,The Lice
8、nsing (Scotland) Act 1975The Divorce (Scotland) Act 1976Abolition of Poindings and Warrant Sales Act 2001Dog Fouling (Scotland) Act 2003Health and Satefy at Work 1974Sale of Goods Act 1979Employment Rights Act 1996Protection of Children (Scotland) Act 2003Equality Act 2012Scotland Act 1998 Companies
9、 Act 2006,Delegated Legislation 授权立法,Also known as secondary legislation this is law that can be made by other persons and bodies without having to introduce a Bill in Parliament and have to go through the Parliamentary process. This means that laws can be amended quickly if necessary or needed in a
10、n emergency. The power to do this comes from an Act of Parliament.,Three types:, Statutory Instrument 法律文件(can be either “order in council”枢密院令 or “ministerial regulations”行政规章) By-laws 单行条例 Acts of Sederunt 开庭法 and Acts of Adjournal 休庭法,Primary legislation. 主体法律宪章性条约,This consists of the various Tr
11、eaties and other legislation which was passed to set up the European Union and give bodies within it their powers.Treaty of Rome(罗马条约)take effect when ratified（批准） by Westminster Parliament in UK. The single European Act(单一欧洲文件)The Treaty on European Union(欧洲联盟条约),Secondary legislation 次级法律,There ar
12、e five ways in which the institutions of the Community are able to change or influence the laws in the member states. 1. Regulations 条例e.g. Working Time Regulations 1998;（take effect immediately when signed by 27 Member States of the EU. No national implementation measures are needed. ） 2. Directive
13、s指示;（addressed to Member States and come into force when implementing legislation is passed by the Westminster Parliament.） 3. Decisions决定; 4. Recommendations建议; 5. Opinions意见.,European Union Law why：EU Law is supreme and any conflicting national law must be amended or abolished. The UK is a member
14、of the EU and all Member States must comply with EU Law in order for the single market to function.,In a conflict between Scots and European Union Law, which one of the two legal systems are the Scottish Courts bound to follow?,The four most important institutions of the European Union,European Comm
15、ission 欧盟委员会 known as the initiator（发起者） of EU legislation. All proposals（提案） for laws must originate and be drafted by the Commission. The Council of the European Union 部长会议 has the final say on EU legislation. It shares power with the European Parliament in approving or rejecting（批准或拒绝） laws from
16、the Commission.,The European Parliament 欧洲议会 must be consulted（咨询） when laws are being debated（争议）, etc. It shares power with the Council in that it can approve, amend and veto（批准、修改或否决） laws. The European Court of Justice 欧盟法院 interprets（接受） the laws drafted and debated and approved by the other in
17、stitutions. The Court clarifies the law for Member States where there is a dispute and with the Commission can hear actions against natural and legal persons, etc for non-compliance（不符合） with EU Law.,Common Law Sources 普通法渊源,a. Judicial Precedent (判例法) b. Custom(习惯法) c. Equity (衡平法) d. Institutional
18、 Writings (经典法律著述),What is meant by the doctrine of judicial precedent？遵循先例原则是什么意思？,The doctrine of judicial prcedent involves a process whereby judges can develop a rule of law by making a decision in a test case（判例案件）. Once this decision has been made, future judges and courts will be expected to
19、follow the reasoning laid down in the test case if they are dealing with a case which raises similar legal issues.,Answer:,It should be stressed that not every judge can make a new, binding legal rule. The authority of the judge or the court will have to considered here. Judicial precedent or case l
20、aw is part of the unwritten law of Scotland.,This is law that has been developed by courts/judges rather than Parliament. It is based on cases and decisions by courts, etc. Not all court decisions have the authority of precedent it depends on the seniority of the judge and the particular court where
21、 the original decision is given. Cases must deal with the same point of law in order to be binding on other courts and cases.,Judicial Precedent 司法判例,“hierarchy（层次） of the courts”,the Supreme court（最高法院） binds（约束） all lower courts, e.g. Inner and Outer houses of the Court of Session as well as sheri
22、ff court. The Inner House binds the Outer House and the Sheriff Courts（郡法院）. These courts have binding precedent but the others have only persuasive precedent.,Judicial Precedent 司法判例,A legal dispute or any other legal situation occurs. There is no provision in any Act of Parliament or any piece of
23、delegated legislation to cover it. The judge must make a decision which he sees as fair and just. The decision will be followed in the future by other judges in similar cases.,ratio decidendi 判决理由,The legal term presenting the reasons behind the decision is called ratio decidendi.,An example of a ju
24、dicial precedent,Donoghue V Stevenson 1932 SC (HL)31 (Turn to Page 47) This was heard in the House of Lords and therefore was a binding precedent. All similar cases now follow this decision that manufacturers owe consumers a duty of care and may receive damages sustained to themselves or legally pro
25、tected interests due to defective goods. This example of judicial precedent is also (indirectly) responsible for the creation of the Consumer Protection Act 1987.,Custom 习惯法,Another source of law rarely referred to nowadays. These are practices which have been handed down through the generations. In
26、 order to be binding they must be well established and must continue to be in force（大规模的，有效的）.,In criminal law, for example, it has always been the case that certain crimes are so reprehensible that they are considered a threat to society and therefore must be punished, e.g. murder. There is no Act
27、that says this is a criminal offence but society has always considered that taking of another life without justification is a serious offence and must be punished. It has always been customary for a widow to receive her dead husbands estate (this is now enacted in legislation).,These are established
28、 works by famous legal scholars which can be cited（引用） and quoted still in court cases. Where there is no legislation or precedent on a particular point then they will seek an authoritative statement from these works. However statute law and judicial precedent prevail（战胜） where there is conflict. Given the amount of statutes today and the many precedents it is rare nowadays to cite these works by writers such as Viscount Stair, Erskine or Sir Thomas Craig.,Institutional Writings 经典法律著述,
