法律知識導讀完整版教學課件全書電子講義(最新)

1、Unit 1 Definition, Classification and Sources of Law法律的定義、分類和淵源Lead-in 法律是一種社會規(guī)范，以各種方式影響著我們的日常生活與整個社會。不同的國家對于法律的分類和命名各不相同，最一般的區(qū)分為規(guī)范國家與人民之間關(guān)系的“公法”（包括憲法、行政法和刑法）和規(guī)范私人間權(quán)利義務關(guān)系的“私法”（包括合同法、侵權(quán)法和財產(chǎn)法）。法律淵源是法的外在表現(xiàn)形式，通常把它分為正式意義上的和非正式意義上的兩種。正式意義上的法律淵源，主要指以規(guī)范性法文件形式表現(xiàn)出來的成文法，如立法機關(guān)或立法主體制定的憲法、法律、法規(guī)等。非正式意義上的法律淵源，主要指具有

2、法的意義的觀念和其它有關(guān)準則，如權(quán)威性的法學著作、道德準則、習慣等。DefinitionAccording to its purposes:To maintain social order and resolve social disputes ( as a set of rules of conduct, but also the means to impose responsibility and to enforce social justice.To bring about changes in our society and society brings about changes

3、in the law ( as a method of social control)ClassificationPublic laws: constitutional law, administrative law and criminal law.(applying to the public of a state or nation.)Private laws contracts, torts and property, each of which can be subdivided into several subjects.(dealing with the relationship

4、s between individuals) Substantive lawsProcedural laws - Substantive law defines rights, and procedural law establishes the procedures by which rights are protected and enforced.SourcesPrecedentsCustomsLegislationStatutory interpretationPreparatory worksPrecedents The judgments passed by some of the

5、 learned jurists became another significant source of law. (When there is no legislature on particular point, the judges depend on their own sense of right and wrong and decide the disputes. Such decisions become authority or guide for subsequent cases of a similar nature) Advantages: More flexible

6、than legislation and custom. It is always ready to be used.Customs A custom is a rule which in a particular family or in a particular district or in a particular section, classes or tribes, has from long usage obtained the force of law. Advantages: It got recognition since the emergence of sovereign

7、ty on the horizon of jurisprudence; an exemption to the ordinary law of the land, and every custom is limited in its application; practices that have to be repeated for a period of time.Legislation Legislation is that source of law which consists in the declaration of legal rules by a competent auth

8、ority. Advantages: 1.the direct source of law. 2. frames new laws, amends the old laws and cancels existing laws 3.the most important source of law making In modern times . The term legislature means any form of law making. Its scope has now been restricted so a particular form of law making. It not

9、 only creates new rules of law it also sweeps away existing inconvenient rules.Statutory interpretation Definition: Interpretation is the process of which the court seeks to ascertain the meaning of a particular legislature. Function: Through interpretation, the judiciary evolves the law and brings

10、the changes in it and thus keeps abreast of law.Preparatory worksIn some legal cultures, some of the documents produced in the process leading up to legislation are subsequently used as guidelines on how to interpret and understand an act of legislationWords and Expressionslegal force 法律效力validity v

11、ldt n. (法律上)有效；合法性 precedent presd()nt n. 判例；先例jurist drst n. 法官；律師；法學家；法律著作家legislature ledslt n. 立法機關(guān)；立法機構(gòu)legislation ledsle()n n. 立法；法律 jurisprudence ,drsprud()ns n. 法律體系；法學及其分支；法院審判規(guī)程statutory interpretation 法律解釋ascertain ,sten v. 確定；查明judiciary dd()r n. 司法部；法官keep abreast of 及時了解.的最新情況Notes:Sub

12、stantive law and procedural law(實體法和程序法）：實體法是規(guī)定和確認權(quán)利和義務以及職權(quán)和責任為主要內(nèi)容的法律，如憲法、行政法、民法、商法、刑法等；程序法是規(guī)定以保證權(quán)利和職權(quán)得以實現(xiàn)或行使，義務和責任得以履行的有關(guān)程序為主要內(nèi)容的法律，如行政訴訟法、行政程序法、民事訴訟法、刑事訴訟法等。Supplementary ReadingLaw of the United StatesThe Constitution sets out the boundaries of federal law, which consists of acts of Congress, tr

13、eaties ratified by the Senate, regulations promulgated by the executive branch, and case law originating from the federal judiciary. Sources of Law of the United Statesconstitutional law(the most important)statutory lawtreatiesadministrative regulationscommon law(including case law)American common l

14、awFirst, all U.S. states except Louisiana have enacted reception statutes which generally state that the common law of England (particularly judge-made law) is the law of the state. (except Louisiana)Second, a small number of important British statutes in effect at the time of the Revolution have be

15、en independently reenacted by U.S. states. Much of contemporary American common law has diverged significantly from English common law. (despite the presence of reception statutes)Federal lawFederal law originates with the Constitution, which gives Congress the power to enact statutes for certain li

16、mited purposes like regulating interstate commerce.Many lawsuits turn on the meaning of a federal statute or regulation, and judicial interpretations of such meaning carry legal force under the principle of stare decisis.Brief history of federal law:18th 19th century: It traditionally focusing on ar

17、eas like military, money, foreign affairs, tariffs, intellectual property and mail, etc.20th century: It has been expanded into areas like aviation, telecommunications, railroads, pharmaceuticals, antitrust and trademarksState lawThe fifty American states are separate sovereigns with their own state

18、 constitutions and state governments and state courts. They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate.Local lawStates have delegated lawmaking powers to thousands of agenci

19、es, townships, counties, cities, and special districts.NotesStare decisis: It is the legal principle under which judges are obliged to follow the precedents established in prior decisions. Code of Federal Regulations（美國聯(lián)邦法規(guī)總覽）：The Code of Federal Regulations (CFR) is the codification of the general

20、and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.United States Code（美國法典）：The United States Code (USC) is a compilation and codification of the general and permanent federal law of the Unite

21、d States. It contains 50 titles and is published every six years by the Office of the Law Revision Counsel of the US House of Representatives. Chevron doctrine（“切弗倫案理論）：Chevron U.S.A.， Inc. v. Natural Resources Defense Council， Inc., 467 U.S. 837 (1984), was a case in which the United States Supreme

22、 Court set forth the legal test for determining whether to grant deference to a government agencys interpretation of its own statutory mandate.Unit 2 Legal Systems法律體系Lead-in法律體系是指具有相同或相近的傳統(tǒng)、原則、制度和特征等要素的一類法律制度的總和。一般而言，大陸法系和英美法系被認為是當今世界最重要的兩大法律體系。大陸法系，又稱歐陸法系，是以羅馬法為基礎(chǔ)發(fā)展起來的法律的總稱。英美法系，又稱普通法法系，是以英國自中世紀以來

23、的法律，特別是以普通法為基礎(chǔ)發(fā)展起來的法律的總稱。這兩大法律體系也有交流與融合之處，如英國、美國、澳洲、加拿大是典型的英美法系國家，但美國的路易斯安那州和加拿大的魁北克則采用的是大陸法系的法律制度。Legal Systemscivil law common law religious lawcombinations of these.Civil lawCivil law is the most widespread system of law around the world. It is also known as Continental European law. The central

24、source of law that is recognized as authoritative is codifications in a constitution or statute passed by legislature, to amend a code.Sources: The Roman Empire, and more particularly, the Corpus Juris Civilis issued by the Emperor Justinian ca. 529 AD; and partly influenced by religious laws such a

25、s Canon law and Islamic law.Four distinct groups:French civil law: in France, the Benelux countries, Italy, Spain and former colonies of those countries; German civil law: in Germany, Austria, Switzerland, Estonia, Latvia, former Yugoslav republics, Greece, Portugal and its former colonies, Turkey,

26、Japan, and the Republic of China; Scandinavian civil law: in Denmark, Norway and Sweden. As historically integrated in the Scandinavian cultural sphere, Finland and Iceland also inherited the system. Chinese law: a mixture of civil law and socialist law in use in the the Peoples Republic of China.Co

27、mmon lawCommon law and equity are systems of law whose sources are the decisions in cases by judges. The doctrine of stare decisis or precedent by courts is the major difference to codified civil law systems. Development: 1. developed in England; 2. influenced by Anglo-Saxon law and to a much lesser

28、 extent by the Norman conquest of England which introduced legal concepts from Norman law; 3.later inherited by the Commonwealth of Nations; 4. almost every former colony of the British Empire has adopted it Current Status: Currently in practice in Ireland, most of the United Kingdom (England and Wa

29、les and Northern Ireland), Australia, New Zealand, Bangladesh, India(except Goa), South Africa, Canada (excluding Quebec), Hong Kong and the United States (excluding Louisiana) and many more places. In the European Union, the Court of Justice takes an approach mixing civil law (based on the treaties

30、) with an attachment to the importance of case law. Religious lawReligious law refers to the notion of a religious system or document being used as a legal source, though the methodology used varies.The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and Canon law in some Christ

31、ian groups. The Islamic legal system of Sharia (Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law.The Halakha is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. Canon law is not divine law, properly speaking, because it is not

32、found in revelation. Instead, it is seen as human law inspired by the word of God and applying the demands of that revelation to the actual situation of the church.Words and Expressionscivil law 民法法系/ 大陸法系common law 普通法系/ 英美法系religious law 宗教法authoritative rttv adj. 有權(quán)威的amend mend v. 修改；改善；修正Roman E

33、mpire 羅馬帝國（指公元前27年到公元476年的羅馬奴隸制國家）Islamic law 伊斯蘭法equity ekwt 衡平法jurisdiction ,drsdk()n n. 司法權(quán)；審判權(quán)；管轄權(quán)overrule vrul v. 否決judicial decision 司法裁決ambiguous mbgjs adj. 模糊不清的；引起歧義的aristocracy ,rstkrs n. 貴族；貴族統(tǒng)治Sharia ri: n. 伊斯蘭教教法hear h v. 聽審；審理orthodox :dks adj. 正統(tǒng)的, 傳統(tǒng)的bishop bp n. 主教NotesCorpus Juris

34、Civilis （國法大全/羅馬民法法典): The Corpus Juris Civilis (Body of Civil Law) is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor.equity（衡平法）: In jurisdictions following the English common law, equity is the set of le

35、gal principles that supplement strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as natural justice.Canon law （教會法）：Canon law is the body of laws and regulations made by ecclesiastical authority (Church leadership), for the government o

36、f a Christian organization or church and its members. It is the internal ecclesiastical law governing the Catholic Church (both Latin Church and Eastern Catholic Churches), the Eastern and Oriental Orthodox churches, and the Anglican Communion of churches.Halakha（猶太教法）：Halakha (Hebrew: ) is the coll

37、ective body of Jewish religious laws, based on the Written and Oral Torah as well as customs and traditions compiled today in the Shulchan Aruch, the Code of Jewish Law.Anglican Communion（安立甘宗/圣公會聯(lián)誼會）：The Anglican Communion is an international association of churches consisting of the Church of Engl

38、and and of national and regional Anglican churches in full communion. It is the third largest communion in the world, after the Roman Catholic Church and the Eastern Orthodox Churches. Supplementary ReadingLaw of the Peoples Republic of ChinaBrief introductionLaw of the Peoples Republic of China is

39、the legal regime of the Peoples Republic of China, with the separate legal traditions and systems of Mainland China, Hong Kong, and Macau.Two parts1. Mainland China: largely a civil law system, reflecting the influence of Continental European legal systems, especially the German civil law system in

40、the 19th and early 20th centuries 2. Hong Kong : common law system Macau: legal system based on that of Portuguese civil law. Hong Kong and Macau have their own courts of final appeal and extradition policies; they are not within the jurisdiction of the court system within the Peoples Republic of Ch

41、ina, which is only effective within mainland China, but their respective Basic Laws are subject to the interpretation power of the Standing Committee of the National Peoples Congress. ( One Country, Two System)History China has a tradition of adopting civil law systems.(3 stages) 1. Qing Dynasty: Hi

42、ring Japanese legal experts to copy legal systems from Japan, which stemmed from the German civil law system. 2. After the establishment of the Republic of China in 1911: Maintaining the civil law system. 3. late 1970s (after the end of the Cultural Revolution): A rather complete legal system with c

43、onstitution, civil and commercial law, criminal law, administrative law, economic law, procedural law, etc have been established.Source of law1. the Constitution of the Peoples Republic of China (NPC)2. The principles of legislation and the validity and priority of law, rule and administrative regul

44、ations ( in Legislation Law, constitutional provisions, basic laws and laws enacted by the National People s Congress and its standing committee)3. regulations (by State Council and its department)4.Local laws and regulations, autonomous-zone regulations, legal explanations and treaty norms (incorpo

45、rated into domestic law immediately upon promulgation.) Signed international treaties are in practice automatically incorporated into PRC law, and they are superior to the relevant stipulations of PRC laws. However, the PRC reserves the right to make reservations regarding provisions of a treaty.Var

46、ieties of law1. The Constitution of the Peoples Republic of China2. National laws which are issued by the National Peoples Congress3. Administrative regulations, which are issued by the State Council4. Local decrees, which are issued by local Peoples Congresses5. Administrative and local rules, whic

47、h are issued by an administrative agency or by a local Peoples Government substantive laws : administrative law, criminal law, civil law or business law, and economic law. procedural laws: civil procedure law, criminal procedure law and administrative procedure law.Civil Law and Civil Procedure Law

48、The Civil Law governs personal and property relationships between natural persons and legal persons having equal status.Civil Procedural law advocates the principle of open trial - a system in which the second instance is the final hearing (although a trial supervision system exists in civil litigat

49、ion which will allow a limited number of cases being tried by the third instance.)Criminal Law and Criminal Procedure LawCriminal Law is under heavy criticism or strong support, especially the insistence on capital punishment for many crimes.The Criminal Procedural Law provides for the defense of th

50、e accused. Administrative law and Administrative Procedure LawAdministrative Law :The State Council is authorized to promulgate administrative regulations, on social and economic sectors and affairs consistent with the laws adopted by the NPC and its Standing Committee. The Administrative Procedure

51、Law of the Peoples Republic of China (1989) allows legal persons to bring legal challenges against administrative actions.Words and Expressionslegal regime 法律制度sophisticated sfstketd adj. 高級的; 復雜的inherit nhert v. 繼承Portuguese ,ptjgiz; -t- adj. 葡萄牙的appeal pil v. 上訴；申訴extradition ekstrd()n n. 引渡；亡命者送還

52、本國jurisdiction ,drsdk()n n. 司法權(quán)；審判權(quán)；管轄權(quán)capital punishment 死刑Administrative Law 行政法Administrative Procedure Law 行政訴訟法administrative action 行政行為detention dten()n n. 拘留；監(jiān)禁Legislation Law 立法法international treaties 國際條約stipulation ,stpjlen n. 規(guī)定；條款reopen rip()n v. 重新審理invalidate nvldet v. 使無效 judicial in

53、dependence 司法獨立autonomous regions 自治區(qū)Civil Law 民法Civil Procedure Law 民事訴訟法litigation ltge()n n. 訴訟；起訴Criminal Law 刑法Criminal Procedure Law 刑事訴訟法amendment men(d)m()nt n. 修正案；改善；改正NotesBasic Law（基本法）：Hong Kong and Macau, have basic laws as their constitutional documents. The basic laws are the highest

54、 authority, respectively, in the territories, while the rights of amendment and interpretation rest with the Standing Committee of the National Peoples Congress of the Peoples Republic of China.Judicial review（司法審查): It is the doctrine under which legislative and executive actions are subject to rev

55、iew (and possible invalidation) by the judiciary. It is an example of check and balances in a modern governmental system (where the judiciary checks the other branches of government). the General Principles of the Civil Law of the Peoples Republic of China（中華人民共和國民法通則) : It is a law in the PRC promu

56、lgated in 1986 and came into force in 1987. It is intended to create a consistent framework for civil law interpretation in the Peoples Republic of China, and is heavily influenced by the German Civil Code.Unit 3 Legal Education法律教育Lead-in法律教育是以傳授法律知識、法學知識體系和培養(yǎng)法律職業(yè)為目的的教育制度和途徑?，F(xiàn)代法律教育一般分為法學教育和法律職業(yè)培訓兩個

57、基本部分。美國的法律教育主要是通過在法學院接受學位教育進行的。美國的法學院授予的專業(yè)學位是法律博士 (J.D.)，法學博士 (LL.D.) 只作為榮譽學位授予。美國每個州有自己的司法考試，需要根據(jù)各州規(guī)定滿足不同的特定要求方可取得律師執(zhí)照。在美國實踐法律的外國律師，卻沒有獲得法律博士學位的，也要去攻讀法律碩士 (J. M.)，法學碩士 (LL. M.)，比較法碩士 (M.C. L.)，或司法碩士 (M. J.)。Legal EducationIntroduction:Legal education is the education of individuals who intend to be

58、come legal professionals or those who simply intend to use their law degree to some end, either related to law (such as politics or academic) or business. It includes:1. First degrees in law, which may be studied at either undergraduate or graduate level depending on the country;2. Vocational course

59、s which prospective lawyers are required to pass in some countries before they may enter practice;3. Higher academic degrees. In addition in some countries, including Germany, the United Kingdom, Canada and some states of Australia, the final stages of vocational legal education required to qualify

60、to practice law are carried out outside the university system.Legal education in the United StatesIt is generally undertaken through a law school fessional degree : the Juris Doctor or Doctor of Jurisprudence (J.D.). Once a prospective lawyer has been awarded the J.D. (or other appropriat