1 introduction to legal system

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Commercial law

. INTRODUCTION:How do law subjects differ from other subjects

. TEACHING METHOD:mportance of answering problems and tutorial

work. TEXTS AND RESOURCES ( AND

INTERNET):. ASSESSMENT:. ANSWERING LEGAL PROBLEMS:identify legal issues

state relevant lawapply law to the facts


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INTRODUCTION TO LAW

BJECTIVES:

to provide the necessary legal background for studentsto study commercial lawto provide the foundations for undergraduate legalresearchto ensure that students understand the sources of

Australian law

to introduce some statutory law (consumer protection)To understand how to answer legal problems

NTRODUCTION: This topic provides an introduction to thelegal system by examining the sources of our laws and

the impact of common law, precedent, and legislationon the legal system.his knowledge is fundamental in understanding the

business environment and being able to completesuccessfully the later topics in this course.


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By the end of this lecture you will beable to:

explain sources of law

define what is meant by law, commonlaw and legislation

identify the main approaches to statutoryinterpretation

identify the courts in the legal system anddescribe their hierarchy

explain the doctrine of precedent and howit operates in the court system

explain the classification of law and legal

proceedings explain the court process and alternative

ways of resolving disputes

INTRODUCTIONTO LAW


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WHAT IS LAW?

The question of what is the law receives differentresponses from different segments of society.Generally, the textbook answer is that it is legislationfrom Parliament or from bodies to whom the power

has been delegated and also decisions from seniorcourts.

Another approach is to view the law as a system thatassists society function in a more cohesive fashion,although this system does not always balance

moral, cultural and religious beliefs and values.

Note the various issues and responses to the questionwhat is law raised in your textbooks.


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CLASSIFICATION OF LAW

he law can be classified in many different ways, onehelpful method is to use the modern definition ofseparating law into enacted or Parliament made law

and unenacted or judge made law.

nother approach is to classify law by examining what

specific areas law covers. For example:) civil and criminal law

i) historical division of law into principles of common lawand equity.

here is also a further division based on geographical

limits. For example, England and her ex-colonies have common law system whereas the other European statehave a civil code system. See for example the RomanCivil Code and The Napoleonic Code.

ome of these classifications will be discussed furtherwhen we examine the sources of Au law.


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SOURCES OF LAW

here are two main sources of law

) common Law or unenacted Law

i) legislative, statute or enacted law

ommon law (in the current context) means judge madelaw. Legislative, statute or enacted law refers to lawmade by governments sitting in their legislativecapacity.

lternative Methods of Dispute Resolution (ADR)

]


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SOURCES OF LAW- SINGAPORE

Government has three distinct areas of power

(i) legislative ( Parlt and president Art 38)

(ii) executive( President, PM, cabinet Art23-24)

(iii) the judiciary (Courts Art 93)

The separation of these powers is referred to asthe separation of powers doctrine and stems

from the Westminster principles of governmen


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SOURCES OF SINGAPORE LAW

Parliament

Courts

Reception of English Law-Application of English Law Act 1993

]


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Parliament ( one house of Parlt)

statutes

delegated legislation

]


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Courts

upreme Court ( includes High Court, Court of Appealand specialty courts - the Court of Appeal is thehighest court in Singapore)

ourt of Appeal hears appeals from High Court

he High Court civil and criminal cases at first instance:Civil cases where the claim exceeds $S250,000Criminal cases- penalty exceeds 10 years jail or death

penaltyAppeal cases from subordinate courts

pecialist courts:Admiralty Court, Intellectual PropertyCourt

ubordinate Courts

istrict Court: civil- up to $S250,000 ( probate$3m)

criminalpenalties up to 10 years jail

or fines.Magistrates Court: crime- 3 years jail or fine, civil

$S60,000mall Claims tribunal claims up to $S10,000 re the

sale of goods or services

]


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DELEGATED LEGISLATION

Delegated legislation is also referred to assubordinate or secondary legislation.

Delegated legislation is enacted law made underthe authority of an Act of Parliament. This Actis often referred to as an empowering Act.

The empowering Act delegates the authority tomake regulations, rules and by-laws,government ministers and statutory

authorities.Delegated legislation must come within the

legislative powers conferred in theempowering Act or the resultant delegatedlegislation may be declared ultra vires andtherefore invalid.


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SOURCES OF LAW - COMMON LAW

EFINITION OF COMMON LAW:aws made by judges in adjudicating disputes, often

referred to as case law. Common law includes (1)

decisions made by judges where no legislation appliesand (2) judges interpretations of particular statutes andregulations.

ommon law was developed by judges who followed theirown decisions and those of fellow judges in similarcases.

ommon law is found in the decisions of judges of thesenior courts. These decisions are found in the lawreports The law reports were traditionally compilationsof cases from a particular court or group of courts takenover a period of time. The cases are bound into largevolumes and usually accessed through law libraries,however law reports are now more readily availablethrough CDs and internet sources.

ach case has a citation (or reference) which is used in theciting of the case that supports a legal principle -examples are found in your text.

ote Ku Yu Sang v v Tay Joo Sing [1993] 2 SLR 938oward Smith v Ampol Petroleum Ltd [1974]AC 821loyds Bank v Bundy [1974] 3 ALL ER 757


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SOURCES OF LAW - EQUITY

Equity is a form of common law or judge madelaw that was developed to overcome some of

the shortcomings of the common law.Common law did not provide many remedies

and restricted them mainly to monetarycompensation. The Courts of Chancery wereestablished in England to administer theprinciples of equity through the legal system.

Today equity and common law are joinedtogether in the one court system, however theprinciples of equity are still used today andhave a significant impact on business law.


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THE DOCTRINE OF PRECEDENT

ommon Law refers to the legal principles found in the

decisions of the courts. It is important in the legalsystem that similar cases have similar outcomes topromote consistency and justice within the legal system

he doctrine of precedent ensures some consistency ofdecisions as the concept of precedent involves courtsfollowing previous decisions of other courts.

wo forms of precedent exist:

inding precedent (traditionally referred to as staredecisis): A decision from a more senior court in thesame hierarchy of courts binds judges in lower courts tofollow that decision. The facts of the cases must be

substantially similar.ersuasive precedent: Decisions from courts in otherjurisdictions or lower courts in the same hierarchy whichneed not be followed by other courts but can be used asa guide when deciding similar fact cases. Persuasive

precedent may also be the obiter dicta (see next slide)or merely observations of the court which were not thebasis of the courts decision


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PRECEDENT, RATIO DECIDENDI &OBITER DICTA

n cases of binding precedent, not all of the judgment isbinding, the only binding aspect of the case is the rat iodecidendior legal reason for the decision. A judgedeciding a case may make other statements of lawrelating to the case and comment on the legalarguments presented by the parties, however these

statements may only be ob iter dictaand are not thejudges legal reason for the decision.

etermining the ratio and the obiter can be a difficult task,however It is important that courts relying on precedentidentify the correct ratio decidendiso as to avoid a party

appealing against the decision on the basis of anincorrect interpretation of the precedents.

recedents only operate where there are similarcircumstances between the precedent and a currentcase, sometimes there may be small but significantdifferences between the cases so in these

circumstances the judges may distinguish on the facts


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Precedent and the CourtHierarchy

he operation of precedent relies on a hierarchy of courts.The key to binding precedent is that decisions of seniorcourts are followed at a later time by courts lower in thesame hierarchy.


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CIVIL/CRIMINAL - TERMINOLOGYefore leaving this introductory topic some discussion is

needed of the words criminal and civil . The legal

terminology as between criminal and civil differs so aclear understanding is needed of the correct language

n criminal matters the following words are important :

ccused, defendant, prosecuting, prosecutor, penalty,conviction, beyond reasonable doubt.

riminal cases are referred to in the following way:

R v Smith or

Public Prosecutor v Smith or similar usually indictablecriminal offences (Ror PP) refers to the crown asprosecutor and Smith is the accused.)

mith v RorPP- indictable criminal matters on appeal

n civil cases the following words are important:

Plaintiff, applicant, defendant, sue, remedy, damages,appellant,

respondent, on the balance of probabilities.

ivil cases are referred to in the following way:

mith v Brown (Smith is the plaintiff and Brown thedefendant).

1 introduction to legal system

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