HND 商法导论outcome1.doc

1. List the main sources of modern Scots Law.The two main sources of Scots Law:A: Statutory Sources of LawActs of Parliament––––laws passed by the UK and Scottish Parliament known as ActsDelegated Legislation––––laws passed by bodies authorized by Parliament.European Union Law––––passed by the European UnionB: Common Law Sources:Judicial Precedent–––– the most influential of the common law sources, also known as Stare Decisis.Custom––––A custom is a practice which has been long and consistently recognized and so has acquired the force of law. Custom is now rarely a source of new law.Equity––––basically means fairness or natural justiceInstitutional Writings––––have less authority than legislation or judicial precedent.Institutional Writings is not as important as legislation or judicial precedent. Their main importance lies in the fact that they contributed to the orderly development of Scots law. 2(a) what is meant by the doctrine of judicial precedent?Judicial Precedent is the most influential of the common law sources, also known as Stare Decisis.If a legal dispute or any other legal situation occurs and there is no provision in any Act of Parliament or any piece of delegated legislation to cover it, then the judge dealing with the dispute must make a decision which he sees as fair and just. In such a situation therefore, the judge is actually making the law—he is creating a precedent—and their decision will be followed in the future by other judges in similar cases. However, if legislation is passed later which is contrary to the judicial decision, and then the legislation that is passed later will overrule it. The operation of judicial precedent results in the creation of ‘case law’. A group of cases exist which have established a particular point of law.2(b) Give an example of a judicial precedent.Example: Donoghue V Stevenson 1932 SC (HL) 31Mrs. Donoghue alleged that one evening in August 1928 in Francis Michelle’s Café in Paisley, a friend had ordered for her, ice cream and ginger beer—planning to put it together as an ice drink. The ginger beer was supplied in a sealed, opaque bottle and the owner of the café poured some of the beer into the ice cream. Mrs. Donoghue drunk some of the mixture and her friend then lifted the bottle and was pouring out the remainder into a tumbler when a decompose snail floated out of the bottle and into her drink. Mrs. Donoghue suffered shock and illness as a result. She claimed damages against the manufacturer.3(a) Which is the superior legislative body: the Westminster Parliament or the Scottish Parliament?the superior legislative body: the Westminster Parliament3(b) Explain your choice of answer in part (a) above.By the Act of Union in 1707, Scotland and England formed the kingdom of Great Britain, since then the Scottish parliament is not a complete, independent legislative body. It is an inferior body in comparison to the Westminster Parliament, from which the Scottish Parliament derives its authority to pass laws for Scotland. Westminster Parliament has the right to cancel the Scottish parliament on bill made by the legislation. Any legislation of the Scottish Parliament is considered to be secondary legislation NOT primary legislation.4. What is a statute?The consists of laws known as statutes or Acts of Parliament passed by both the House of Commons and the House of Lords and then given the Royal Assent.All statutes are divided into sections, sub-sections, paragraphs and sub-paragraphs for easy reference.All Statues starts as “bills” which can be either Public Bills or Private Bills.5. Name five Acts of ParliamentAbolition of Poindings and Warrant Sales Act 2001Dog Fouling (Scotland) Act 2003Animals (Scotland) Act 1987The Succession (Scotland) Act 1964The Divorce (Scotland) Act 19766. What are the main differences between civil and criminal law in Scotland?Civil law:Civil Law is concerned with non-criminal disputes and situations, including the following:·The settlement of legal disputes between individuals and other bodies(e.g. a divorce case、succession、issues)·The payment of compensation from one party to another for loss or injury.·The setting of procedures to govern financial and other matters.(e.g. the legal procedures to be followed when buying or selling a house)Criminal law:Criminal law is primarily used by the State as a means of maintaining law and order by punishing certain individuals who indulge in behavior which is regarded as criminal and anti-social. The State uses the criminal law, therefore, to punish criminals on behalf of the community or society.the main differences:1. The regulated relationships: Civil Law: Relationships between subjects of equal footingCriminal Law: Relationships between subjects of unequal footing2 .The burden:Civil Law: Compensation or other obligationsCriminal Law: Punishment by State3. The freedom of the subjects:。