法律英語(yǔ)名詞解釋考研復(fù)試口語(yǔ)

1、Common lawCommon law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action.Common law is law created and refined by judges: a decision in a currently pending legal c

2、ase depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent. The body of precedent is called common law and it binds future decisions. In future

3、 cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis

4、). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a matter of first impression. Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.In practice, common law systems

5、 are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are b

6、inding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of non-appellate courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable c

7、omplexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.Common law legal systems are in widespread use, particularly in those nations which trace

8、 their legal heritage to Britain, including the United Kingdom, most of the United States, and other former colonies of the British Empire such as India, HYPERLINK /wiki/Common_law l cite_note-1#cite_note-1 o 2 Canada, New Zealand, Australia and Hong Kong. HYPERLINK /wiki/Common_law l cite_note-2#ci

9、te_note-2 o 3InjunctionAn injunction is an equitable remedy in the form of a court order, whereby a party is required to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for

10、failing to follow the courts order. In some cases, breaches of injunctions are considered serious criminal offences that merit arrest and possible prison sentences.MisrepresentationMisrepresentation is a contract law concept. It means a false statement of fact made by one party to another party, whi

11、ch has the effect of inducing that party into the contract. For example, under certain circumstances, false statements or promises made by a seller of goods regarding the quality or nature of the product that the seller has may constitute misrepresentation. A finding of misrepresentation allows for

12、a remedy of rescission and sometimes damages depending on the type of misrepresentation.EstoppelEstoppel is a legal doctrine at common law, where a party is barred from claiming or denying an argument on an equitable ground. Estoppel complements the requirement of consideration in contract law. In g

13、eneral, estoppel protects an aggrieved party, if the counter-party induced an expectation from the aggrieved party, and the aggrieved party reasonably relied on the expectation and would suffer detriment if the expectation is not met.Also, unconscionability by a breaching party is also sufficient to

14、 estop the breaching party.Estoppel is a defense that prevents a representor from enforcing legal rights, or from relying on a set of facts that would give rise to enforceable rights (e.g. words said or actions performed), generally only if that enforcement or reliance would be unfair to the represe

15、ntee. Because its effect is to defeat generally enforceable legal rights, the scope of the remedy is often limited. Note, however, that proprietary estoppel (applicable in English land law) can be both a sword and a shield and the scope of its remedy is wide.For an example of estoppel, consider the

16、case of a debtor and a creditor. The creditor might unofficially inform the debtor that the creditor forgives the debt. Even if such forgiveness is not formally documented, the creditor may be estopped from changing its mind and seeking to collect the debt, because that change would be unfair. In th

17、e same way, a landlord might inform a tenant that rent has been reduced, for example, if there was construction or a lapse in utility services. If the tenant relies on this notice, the landlord could be estopped from collecting the full rent.Estoppel is closely related to the doctrines of waiver, va

18、riation, and election and is applied in many areas of law, including insurance, banking, employment, international trade, etc. In English law, the concept of legitimate expectation in the realm of administrative law and judicial review is estoppels counterpart in public law, although subtle but impo

19、rtant differences exist.This term appears to come from the French estoupail (or a variation), which meant stopper plug, referring to placing a halt on the imbalance of the situation. The term is related to the verb estop which comes from the Old French term estopper, meaning stop up, impede. Note th

20、e similarity between the English terms estop and stop.Case lawCase law (also known as decisional law or judicial precedent) is the general term for the principles and rules of law set forth in judicial opinions from courts of law. HYPERLINK /wiki/Case_law l cite_note-Walker-0#cite_note-Walker-0 o 1

21、Case law incorporates courts decisions from individual cases and encompasses courts interpretations of statutes, constitutional provisions, administrative regulations and, in some cases, law originating solely from the courts. Case law is often published in print law reports or reporters (and increa

22、singly on HYPERLINK /wiki/Law_report l Open_publication_on_the_Internet o Law report court websites) to establish precedent - rules to apply in future court decisions dealing with similar situations.For countries with a common law legal system, such as in the United Kingdom, United States, and most

23、of the Commonwealth of Nations, case law is a major source of law. In general, courts in common law countries treat the decisions of higher appellate courts as normative - laying down rules that should, or in some cases must, be used to decide similar legal disputes (called binding precedent). In co

24、untries with legal systems that follow the civil law tradition derived from Roman law, however, the courts are not strictly bound by rules and principles from case law. StatuteStatute law is law made by parliaments eg. the crimes act 1900 made by nsw parliamentA statute is a formal written enactment

25、 of a legislative authority that governs a country, state, city, or county. HYPERLINK /wiki/Statute l cite_note-Blacks-0#cite_note-Blacks-0 o 1 Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from the judicial

26、 decisions of the common law and the regulations issued by Government agencies. HYPERLINK /wiki/Statute l cite_note-Blacks-0#cite_note-Blacks-0 o 1 Statutes are sometimes referred to as legislation or black letter law. As a source of law, statutes are considered primary authority (as opposed to seco

27、ndary authority).Before a statute becomes law in some countries, it must be agreed upon by the highest executive in the government, and finally published as part of a code. In many countries, statutes are organized in topical arrangements (or codified) within publications called codes, such as the U

28、nited States Code. In the United States, statutory law is distinguished from and subordinate to constitutional law.Agency (law)Agency is an area of commercial law dealing with a contractual or quasi-contractual tripartite, or non-contractual set of relationships when an agent is authorized to act on

29、 behalf of another (called the Principal) to create a legal relationship with a Third Party. HYPERLINK /wiki/Agency_(law) l cite_note-0#cite_note-0 o 1 Succinctly, it may be referred to as the relationship between a principal and an agent whereby the principal, expressly or impliedly, authorizes the

30、 agent to work under his control and on his behalf. The agent is, thus, required to negotiate on behalf of the principal or bring him and third parties into contractual relationship. This branch of law separates and regulates the relationships between:Agents and Principals; Agents and the Third Part

31、ies with whom they deal on their Principals behalf; and Principals and the Third Parties when the Agents purport to deal on their behalf. The common law principle in operation is usually represented in the Latin phrase, qui facit per alium, facit per se, i.e. the one who acts through another, acts i

32、n his or her own interests and it is a parallel concept to vicarious liability and strict liability in which one person is held liable in Criminal law or Tort for the acts or omissions of another.Good faithGood faith, or in Latin bona fides (bona fide means in good faith), is the mental and moral st

33、ate of honesty, conviction as to the truth or falsehood of a proposition or body of opinion, or as to the rectitude or depravity of a line of conduct. This concept is important in law, especially equitable matters. HYPERLINK /wiki/Good_faith l cite_note-0#cite_note-0 o 1In contemporary English, bona

34、 fides is sometimes used as a synonym for credentials, background, or documentation of a persons identity. Show me your bona fides can mean: Why should I trust you (your good faith in this matter)? Tell me who you are. In this sense, the phrase is sometimes used in job advertisements, and should not

35、 be confused with the bona fide occupational qualifications or the employers good faith effort, as described below. HYPERLINK /wiki/Good_faith l cite_note-1#cite_note-1 o 2CommissionerCommissioner is in principal the title given to the holder of a commission, in the sense of a mandate, whether indiv

36、idually or shared, notably as member of a collegial commission.In practice the title of commissioner has evolved to include a variety of senior officials, often sitting on a specific commission. In particular, commissioner frequently refers to senior police or government officials. A High Commission

37、er is equivalent to an ambassador, between Commonwealth states sharing the same Monarch as head of state.The title is also sometimes given to senior officials in the private sector, for instance many North American sports leagues.PartnershipA partnership is a type of business entity in which partner

38、s (owners) share with each other the profits or losses of the business undertaking in which all have invested. Partnerships are often favored over corporations for taxation purposes, as the partnership structure does not generally incur a tax on profits before it is distributed to the partners (i.e.

39、 there is no dividend tax levied). However, depending on the partnership structure and the jurisdiction in which it operates, owners of a partnership may be exposed to greater personal liability than they would as shareholders of a corporation.Joint and several liabilityUnder joint and several liabi

40、lity, a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. This means that if the claimant pursues one defendant and receives payment, that defen

41、dant must then pursue the other obligors for a contribution to their share of the liability.Joint and several liability is most relevant in tort claims, whereby a plaintiff may recover all the damages from any of the defendants regardless of their individual share of the liability. The rule is often

42、 applied in negligence cases, though it is sometimes invoked in other areas of law.In the United States, 46 of the 50 states have a rule of joint and several liability, although in response to tort reform efforts, some have limited the applicability of the rule.TortTort law is the name given to a bo

43、dy of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations. HYPERLINK /wiki/Tort l cite_note-0#cite_note-0 o 1 A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or liable,

44、for those injuries. Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for anothers injury. Torts cover intentional acts and accidents.For instance, Alice throws a ball and accidentally hits Brenda in the e

45、ye. Brenda may sue Alice for losses occasioned by the accident (e.g., costs of medical treatment, lost income during time off work, pain and suffering, etc.). Whether or not Brenda wins her suit depends on if she can prove Alice engaged in tortious conduct. Here, Brenda would attempt to prove Alice

46、had a duty and failed to exercise the standard of care which a reasonable person would render in throwing the ball.One of the main topics of the substance of tort law is determining the standard of care - a legal phrase that means distinguishing between when conduct is or is not tortious. Put anothe

47、r way, the big issue is whether a person suffers the loss from his own injury, or whether it gets transferred to someone else.Going back to the example above, if Alice threw the ball at Brenda on purpose, Brenda could sue for the intentional tort of battery. If it was an accident, Brenda must prove

48、negligence. To do this, Brenda must show that her injury was reasonably foreseeable, that Alice owed Brenda a duty of care not to hit her with the ball, and that Alice failed to meet the standard of care required.In much of the western world, the touchstone of tort liability is negligence. If the in

49、jured party cannot prove that the person believed to have caused the injury acted with negligence, at the very least, tort law will not compensate them. Tort law also recognizes intentional torts and strict liability, which apply to defendants who engage in certain actions.In tort law, injury is def

50、ined broadly. Injury does not just mean a physical injury, such as where Brenda was struck by a ball. Injuries in tort law reflect any invasion of any number of individual interests. This includes interests recognized in other areas of law, such as property rights. Actions for nuisance and trespass

51、to land can arise from interfering with rights in real property. Conversion and trespass to chattels can protect interference with movable property. Interests in prospective economic advantages from contracts can also be injured and become the subject of tort actions. A number of situations caused b

52、y parties in a contractual relationship may nevertheless be tort rather than contract claims, such as breach of fiduciary duty.Tort law may also be used to compensate for injuries to a number of other individual interests that are not recognized in property or contract law, and are intangible. This

53、includes an interest in freedom from emotional distress, privacy interests, and reputation. These are protected by a number of torts such as infliction, privacy torts, and defamation. Defamation and privacy torts may, for example, allow a celebrity to sue a newspaper for publishing an untrue and har

54、mful statement about him. Other protected interests include freedom of movement, protected by the intentional tort of false imprisonment.The equivalent of tort in civil law jurisdictions is delict. HYPERLINK /wiki/Tort l cite_note-1#cite_note-1 o 2 The law of torts can be categorised as part of the

55、law of obligations, but unlike voluntarily assumed obligations (such as those of contract, or trust), the duties imposed by the law of torts apply to all those subject to the relevant jurisdiction. To behave in tortious manner is to harm anothers body, property, or legal rights, or possibly, to brea

56、ch a duty owed under statute. One who commits a tortious act is called a tortfeasor. HYPERLINK /wiki/Tort l cite_note-2#cite_note-2 o 3 Torts is one of the American Bar Association mandatory first year law school courses. HYPERLINK /wiki/Tort l cite_note-3#cite_note-3 o 4Piercing the corporate veilT

57、he corporate law concept of piercing (lifting) the corporate veil describes a legal decision where a shareholder or director of a corporation is held liable for the debts or liabilities of the corporation despite the general principle that shareholders are immune from suits in contract or tort that

58、otherwise would hold only the corporation liable. This doctrine is also known as disregarding the corporate entity. The phrase relies on a metaphor of a veil that represents the veneer of formalities and dignities that protect a corporation, which can be disregarded at will when the situation warran

59、ts looking beyond the legal fiction of a corporate person to the reality of other persons or entities who would otherwise be protected by the corporate fiction.Piercing the corporate veil is not the only means by which a director or officer of a corporation can be held liable for the actions of the

60、corporation. Liability can be established through conventional theories of contract, agency, or tort law. For example, in situations where a director or officer acting on behalf of a corporation personally commits a tort, he and the corporation are jointly liable and it is unnecessary to discuss the