1、苏格兰法院系统：民事法院,Scottish Court System:Civil Courts,5.1.5,Introduction,An introducion to courts :,Deal with legal disputes which can not be settled by any other means. The civil courts do not intervene in disputes between citizens unless one of the parties invokes the aid of the court by bringing an act
2、ion in court against the other party (民法领域“不告不理原则”）,Terms refer to civil courts:,Litigation （诉讼，俗称打官司）Pursuer (the people initiating the claim) （原告）Defender ( the person being taken to court) （被告）,The sort of issues dealt with by the civil courts :,Family law (家庭法）Law of contract （合同法）Law of propert
3、y （物权法）Law of delict (reparation) （侵权损害赔偿）,Types of civil court for Scotland:,the Sheriff Court (郡法院） the Court of Session （最高民事法院） the House of Lords （上议院） the European Court of Justice （欧洲法院）,5.1.6,郡法院,The sheriff Court,Deal with both civil and criminal cases. The most important civil court : it h
4、ears the largest number of cases.,Sheriff (司法行政官）:,All sheriffs are appointed from the ranks of advocates (辩护律师） and solicitors （诉状律师） of at least 10 years standing. They usually have their own sheriff court where they can hear both criminal and civil cases.,Sheriff principal（首席司法行政官）： Each sheriffd
5、om(6) have one full time sheriff principal. Act as judges in both civil and criminal cases in the Sheriff Court. Hear civil appeals from the Sheriff Court.,Jurisdiction of the Sheriff Court:(郡法院的司法管辖权）,Jurisdiction over Persons. (对人的管辖权）Jurisdicition over Subject Matter. (对物的管辖权） Details in Page 58-
6、59,Jurisdiction over Persons:,Depend on where the defender resides (被告居住地).Three exceptions: P58,Jurisdicition over Subject Matter,The main limitations: P59Apart from some limitations, the jurisdiction of the Sheriff Court is unlimited as regards subject matter(标的物）.,Court of first instance (一审法院).
7、The sheriff sitting alone without a jury（陪审团) although in cases involving industrial injury a jury of seven may sit.Claims between 750 1500: Summary Cause (简易诉讼).,Cases for Sheriff Civil Court:,Debts (债务） Contracts （合同） Child protection issues （儿童保护）Restrictions （限制)Actions affecting the use of prop
8、erty (影响财产使用权的行为）Family actions （家庭行为）Leases （租赁）Reparation （赔偿） Rent (租金）,Small claims in the Sheriff Court(小额诉讼程序）,The claim is for 5000 or less.The Small Claim Procedure (小额索赔程序) should be used.The characteristics of The Small Claim Procedure : Do-It-Yourself; without needing employ a solicitor.,
9、Appeal from the Sheriff Court:,Rights of appeal depends on the procedure under which the case has been heard.In summary (简易程序）case appeal can only be made: Sheriff Sheriff Principal Sheriff Principal the Inner House of the Court of Session,In ordinary (普通程序), case is possible to appeal： 1) Sheriff S
10、heriff Principal the Inner House of the Court of Session2) Directly to the Inner House.,firstly,then,5.1.7,最高民事法院,The Court of Session,Introduction:,Scotlands Supreme Civil CourtEstablished in 1532 and situated in Edinburgh.Both a court of first instance (一审法院）and an appeal court（上诉法院） for many case
11、s where ordinary procedure（普通诉讼程序） is followed.,Structure of the court :,The Court of Session is divided into 2 Houses:The Outer House（外庭）The Inner House (内庭）,The Outer House（外庭）,This is made up of 15 court rooms and is known as the Court of the First Instance (一审法院） A claim is more than 15000,Juris
12、diction (管辖权）:,Jurisdiction over persons (对人管辖权）Jurisdiction over Subject Matter （标的物） （对物的管辖权） Details in P62,Choice of the pursuer:,In most ordinary procedure cases, the pursuer can make a choice to take his case either to the Outer House or the Sheriff Court. In most cases, he will choose the She
13、riff Court. (why),Each case will be heard by one Lord Ordinary (苏格兰最高民事法院独任法官）normally sitting alone although in certain cirmustances he may be allowed a jury of 12. (street or industrial injury involved),The Inner House (内庭）,Consist of two court rooms: 1st Division & 2nd Division (equal in authorit
14、y),The personnel of the Inner House:,1st Division Court: Lord President（苏格兰最高民事法院院长） & Lords of Session (3)（苏格兰最高民事法院法官）,2nd Division court: Lord Justice Clerk (苏格兰高等司法法院副院长&民事法院第二庭分庭长） & Lords of session (3),Function of the Inner House:,Hear appeal cases from either the Sheriff Court or the Outer H
15、ouse of the Court of Session. Act as a court of the first instance e.g. interpretations of a legal document or cases involving the law of taxation.,Hold a court (开庭）：,Three judges sitting.In appeal cases, the judges simply hear legal argument base on evidence (证据） given in the original case and on q
16、uestions of law（法律问题）,上议院,The House of Lords,Introduction,It is situated in London, has the power to hear appeals from the Inner House of the Court of Session in civil cases.,When it sits as a court of appeal ,it consists of the Lord Chancellor (大法官）and a number of the Lords of Appeal in Ordinary（上诉
17、法院常任高级法官）.The normal number sitting for an appeal case is three, although this number may be increased to five, seven or even nine for very important cases.,欧洲法庭,The European Court of Justice,Introduction:,It was set up in 1952 under the Treaty of Paris(巴黎和约） and sits in Luxembourg（卢森堡）.Its job is t
18、o ensure that EU legislation is always identical for all parties and in all circumstances.,Power of the Court:,Settle legal disputes between member states, EU institutions, businesses and individuals.As a Court of Appeal for member countries and when there is no further appeal from the court within
19、the member countries own legal system.,A Court of First Instance (一审法庭） is created in 1989 to offer citizens better legal protection. This court is responsible for giving rulings on certain kinds of case, particularly action brought by private individuals and cases relating to unfair competition bet
20、ween businesses.,Personnel of the Court:,The Court is composed of one judge per member state.For the sake of efficiency the Court will be able to sit as a Grand Chamber （大审判庭） of just 13 judges.The Court is assisted by eight advocates-general(欧共体法院法律顾问）.,Appeals in Civil Cases:,The appeal structure
21、is given in the form of a diagram.Details in P67,Class assignment in Page68,Alternative to a Civil Action (民事诉讼的替代解决方式）,Arbitration(仲裁） Tribunals（裁判庭）,仲裁,Abitration,Arbitration,Arbitration, a form of alternative dispute resolution (ADR) （替代纠纷解决机制）, is a legal technique for the resolution of disputes
22、 outside the courts, wherein the parties to a dispute refer it to one or more persons (the arbitrators, arbiters or arbitral tribunal), by whose decision (the award) they agree to be bound.,Some Terms of Arbitration:,Arbitration Agreement （仲裁协议）Arbiter （仲裁人）Arbitrability （可仲裁事项）,Arbitration Agreemen
23、t,In theory, arbitration is a consensual（经双方同意的） process. A party cannot be forced to arbitrate a dispute unless he agrees to do so.,Two Forms of Arbitration Agreement,Agreements which provide that（其中规定）, if a dispute should arise, it will be resolved by arbitration. These will generally be normal c
24、ontracts, but they contain an arbitration clause.Agreements which are signed after a dispute has arisen, agreeing that the dispute should be resolved by arbitration. (sometimes called a submission agreement),Arbiter,The dispute is referred to a person known as an arbiter whoes decision the parties a
25、gree to accept. The parties to the dispute usually appoint a single arbitrater（公断人）. Alternatively, they may appoint an oversman（裁决者) who makes the decision should the two arbiters fail to agree.,The court may appoint an arbiter and an oversman,The parties can not even agree on who is to act as an a
26、rbiter or the parties fail to appoint their half of a pair of the arbiters.,Who cant be an arbiter ?,An individual should not act as arbiter where he/she has a personal interest in the outcome.,Arbitrability,Certain types of legal dispute can not be settled by arbitration. Matters relating to statut
27、es such as divorce cant be the subject of arbitration. Criminal matters cant be dealt with by arbitration.,Advantages of Arbitration:,Speed Informality Cost Privacy Technical expertise P72,The point of going to arbitration is to exclude the jurisdiction of the courts. The parties agree to accept the
28、 decision of the arbiter.,Howerver, the court has an over-riding to set aside or reduce the decision of an arbiter on certain special grounds. Details in Page75,裁判庭,Tribunals,Introduction,Tribunals serve the purpose of resolving diaputes over law or the technical application of the law.Tribunals are
29、 not techinically courts of law- they are quasi-judicial (准司法）.,Types of tribunals,employment tribunals (劳工裁判庭）social security appeals tribunals (社会保障上诉裁判庭）the disability tribunals (残疾人裁判庭）.,More information,types of dispute dealt with by tribunals the characteristics of tribunals the composition of tribunals basis of tribunals,苏格兰法院系统： 刑事控诉部门,Scottish Court System: Criminal Prosecution Service,
