LAW 101 Final Summary and Revision (1) PDF

LAW 101 Final Summary The legal Systems A. Romano Germanic System: It is a system of law based on written legislations and on the separation between the three main public powers. The Romano-Germanic legal system is the dominating system of the world. It is the system...

LAW 101 Final Summary The legal Systems A. Romano Germanic System: It is a system of law based on written legislations and on the separation between the three main public powers. The Romano-Germanic legal system is the dominating system of the world. It is the system ruling the legal Egypt norms & it is broader than the Anglo-Saxon legal system. -Separation between three public authorities / powers: 1- Legislative authority which enact/state the legislation by parliament. 2- Executive authority which execute the law by government. 3- Judicial authority which apply the law by Judge/courts. B. Anglo-Saxon: The Anglo-Saxon based on the decisions of courts. The cases law become a judicial precedent, in the meaning that every lower degree of courts must respect the higher degree of courts. It is the system dominating U.S.A. -Judicial precedent: It is mean that every lower degree of courts must respect the decisions of the higher degree of courts while deciding subsequent cases involving similar issues or facts. The definition legal rule The large sense of legal rule: It is a rule organizing behaviors of persons living together in a determine society, it is general, abstract and it has an obligatory aspect because it is linked with sanctions which guarantee its respect. The narrow sense of legal rule: It is including the codes on the concept of written legislations stated by the parliament in any country and unwritten legislation like custom. 1 The characteristic of the legal rule: 1) The organization of the behavior of persons: The law regulates our behavior, according to the different legal systems in the whole world every person has rights even before birth and at the same time we assume duties versus other persons in society. 2) The generality: The law provides the presumption and the judgment. In case of fulfillment of the conditions of the presumption, the person who fulfills the conditions will be subject to the judgment, regardless of who commit it or who will be the prejudiced person. 3) The abstraction: Abstraction is concerning the application of the legal rule. The judge applies the legal rule to every case fulfill the conditions of application regardless of who will commit it or who will be the prejudiced person. 4) The legal rules are related with sanctions to guarantee their enforceability - Obligatory: The same acts can produce a several sorts of sanctions. If a person commits an act, this act can result in both criminal case, civil case, and administrative case. Sanctions There are three types of sanctions: 1) Civil Sanctions 2) Administrative Sanction 3) Criminal Sanction 2 1) Civil Sanction: It is a legal solution for a civil wrong, however, that wrong arising out of contract, or tort and it is applied by the law. Tort is an act that harms someone in some ways. ❖ Divisions of civil sanction: 1-The nullity: It consists of that some civil acts are contrary to the imperative rules of law, these acts are null and void, which mean that legally the act is null and void acts. 2-The void ability: They are also titled annullable legal acts. They are valid acts, legitimate according to the law, and subject to annulations at the same time. A legal act, like contract of purchase made between a mature and a minor is an annullable contract for the interest of the minor. 3-The real execution: It is the execution of the obligation of the debtor in the legal act as it was described between the parties in their contract. 4-The compensation: When the genuine execution is impossible due to the nature of the legal obligation, the judge orders the compensation of the creditor in the legal act. It can be applied on torts causing injury to a person. 2) The administration sanction: It is determined by the administrative law and applied on the public employee because of his violation of the behaviors imposed by the instructions of the public function. 3) The criminal sanction: It is consisting of the punishment determine by the criminal law. Punishments are subdivided according to the gravity of crime. Crime is subdivided into felony, offence, and contravention. 3  Nature of legal rule Imperative: The rule, which cannot agree to the contrary " Notwithstanding Anything to the contrary" Complementary: The Rule which can agree to the contrary " Subject to any agreement or expression to the contrary" "unless the parties are agreed to the contrary" 4  Branches of law A. Private Law: 1) Civil Law: The objects civil law is the regulation of private relations imposing reciprocal obligations and rights. The civil is the common law that is applied to all the legal relations between individuals regardless their profession or their social status. The civil law deals with the law of person, property, obligations, and enforcements of debts. Real rights the right of property for someone who own land, he has an authority of dominating his property. Personal rights / Credit rights the payment of the price due to contract of purchase is a subjective right. Legal act They are consist of contract, the unilateral act, and the force of law. Legal fact They are consist of the non-contractual liabilities like torts "mistake". 2) Commercial law It is the group of legal relations governing the commercial activity like tourism, insurance, banking, and exchange. 3) Civil Procedural Law: It is the body of rules governing the administration of civil law and the control of procedures in front of judicial authority. The civil procedural law controls the process whereby parties to a dispute may have their rights recognized and remedies awarded. 4) Private International Law: Private international law is a combining of all questions relating issues to nationality and rights depending on conflicts of law in case of legal relation including parties related to different nationalities. EX: The marriage of Egyptian man to French woman 5 5) Admiralty law / Maritime Law: It consists of the body of law relating to ships, shipping, marine commerce and navigation, transportation of persons or property by sea; also, it is related to the freight and cargo of goods. The maritime law organizes the participation of loss due to deterioration of ship it is known as the aviaries. B) Public law: 1) Constitutional law: It regulates the rules governing the form of the state whether it is royal or republican. The systems of leading presidential or parliamentary. The respect of public rights and liberties. 2) Administrative law: It determines the organization and capacity of public powers in realizing it administrative tasks, governing the public properties, the public function, governing administrative contracts, which organize services for public utilities like concision contract. 3) Financial law: It is the group of legal rules that control the public financing and public budget, it also regulates the legislation of taxation and tariffs on imports as the public budget consists of the public incomes and the public expenses. 4) The criminal law: The criminal laws which establish and govern the right of the state to punish individuals throw those organs created under criminal procedures law. The criminal law organizes crimes and punishments. Branches of Criminal law: A) Penal law: Describe the crimes and their penalties. B) Penal Procedure law: The Follow of the crime from time of making till the final sentence against the person who commit it. 6 5) The public International law: It determines the sovereignty of the states, organizes relationships between nations in peace and war, it also rules the diplomacy and consular relationships between countries, and governs the international organization. SOURCES OF LAW They are materials where the judge finds solution for disputes and the persons support their legal claims according to it. ❖ Authoritative or formal sources of law: Legislations Custom Islamic shar Principles of justice 7 They are the legislations, the custom, Islamic Sharia and the principles of justice. (1) The legislations: It is the first sources of the authoritative source, written legislation stated by legislative authority and it is divided into three divisions, the constitutional legislation, the ordinary legislation, and the regulatory legislation. 1-The constitutional legislation: The Constitution: It is the mother law for any land, the first division of the legislation, written and has three Purposes: Firstly, the political purpose: it sets out the structure and function of public authorities. Secondly the economic and social: it contains all statements related to the economic and social organization of the state. Thirdly, the public rights and freedom: it includes declarations concerning the rights and liberties of individuals. The steps of making constitutions: the same steps for the ordinary legislations except the voting with a special quota and the referendum. 2-The ordinary legislations or Codifications: The second division of the legislation, the expression legislation can be used to describe all legal rules formulated in writing and given force and effect through compliance with recognized procedures and by a public authority exercising its legislative power and could not include provisions contrary to the constitution. 8  Examples: The judge to settle a dispute concerning a contract of lease, he will apply the provision of the Egyptian civil law (code) ruling the contract of rent. In case of a dispute related to a transaction between traders, the judge will apply the commercial law. The nature of the ordinary legislation: They are permanent, in the sense that the law applies to all successive relevant situations, until the law is abrogated. Usually, the abrogation of a law is done by another law enacted by the parliament and organizing the same subject of the abrogated law. ❖ The phases of enactment of ordinary legislation: The passing of statutory law by the parliament is a lengthy process consisting on the following steps: 1-The legislation proposed. The law being with some sort or proposal “BILL” and it must be introduced by the president of the state or a member of parliament, and it is known as: Proposition of law → member of parliament Project of law → president or the executive authority 2-The bill referred to the competent committee: The proposed legislation must be introduced to the competent committee to state on its compliance, in case of proposition coming from members of legislative power (the parliament), then if the committee of reviewing decided that the bill meet the terms to become law, it refers it to the competent committee. 3-The bill voted by the member of the parliament: Bill should be voted on by legislators after its reviewing and discussing it. It should obtain a majority (50+1) vote to be approved and passed. 9 If the president refuses the law of parliament must vote it with 2/3 of the members 4-The law must be published: The project of law must be published within 15 days of the voting in the official journal and applied within 30 days of the publishing. 3-The regulations or Regulatory legislation: These were inferior to the ordinaries laws of the legislature and could not include provisions contrary to law. They are legal rules stated by the executive authority as an exception from the principle of enactment of laws by the parliament (legislative authority). a-The regulation of application: They are the first sort of regulation stated by the constitution; it is issued from the executive authority; to facilitate the application of any law– that are subordinate to these. For ex: the regulation of application of the law related to taxation enact from the ministry of finance after delegation accorded from the president of the state and provided by the law itself. b-The organizing regulation: They are the second sort of regulation stated by the constitution. They are relating to some areas of competence of administrative matters. Therefore, they are autonomous and not attached to any law (autonomic regulations). The actual term used to describe a regulation depends on its origin. For ex: They are relating to some areas of competence like the administration of public utilities and the central department of the state. c-The regulation of police: They are legal rules emanated from the executive authority to watch over and protect the national health and security they are autonomous and not attached to any law (autonomic regulations). EX: We can mention the regulations of traffic and of measures of survey of the nutrition and public health. 10 2) The Custom: It is the second authoritative source of law. It is an unwritten source of law developed by the people, in a determine society. It is a continuous behavior in a repetitive way for a very long time ruling the contract of persons till it becomes abiding. Whereas the law emanates from the state, either the legislative or executive authority, the custom originates from people, but is accepted and protected by the state. Elements of Custom: a-Material element of custom: The repetition of the same behavior in the similar situations by people. b-Immaterial element of custom: The obligatory nature of a custom, the custom must have popular support and consent as to its usage. Types of Custom: Firstly, there is custom which supports the law. It arises in the perspective of legislation to facilitate and direct its application, for example the customary use of terms such as date, signature. Secondly, there is custom which precedes the law. Such custom is independent but not contradictory with legislation. The application of such custom varies depending on the legal area. For example, in the fields of business law, the custom is essential, such customs are referred to as “commercial usage” rather than custom. Thirdly, there is custom which is contrary to law. There is custom which is contrary to law. EX, the revenge in the upper Egypt. 11  The application of law ▪ The application of the law means, determining the rules that show the validity of the legislation in terms of 1) Space 2) Time 3) Person First type: The application of law in space A. law is regional: this rule is called the principle of territoriality in the application of the law. B. Sometimes law is related to person: This rule is called the application of the principle of subjectivity of law. A – the principle of territoriality ▪ This rule means that, the stated law by the legislator, is applicable to all persons existing on the territory of the state: 1. Citizen 2. Foreigners ▪ This implies, that the law is a fundamental aspect of state sovereignty, it is the duty of the power of the state to assure the application of its own legislations on its territory and goes beyond that of any other region in some determine case. 12  Cases of application of the rule regional laws: 1) police and security regulations such as: I. Traffic laws II. Health laws 2) Rules of Civil Procedure and Criminal Procedure. 3) The rules of jurisdiction. 4) Public law, such as financial law and criminal law. 5) the rules relating to real estate and personal property and the rights which it produces. 6) The rules relating to public order and public morals. 7) non-contractual obligations such as crime B - The principle of subjectivity of law: ▪ The concept of subjectivity of the law means that the legal rules in the State will be apply to its citizens even if they are living or existing abroad. At the same time, the same rule will not be applied to foreigners even if they are resident within it. ▪ EX: ▪ military service Cases applying the rule of the subjective law: 1) The family law EX I. the validity of the marriage II. The legal effect of marriage on civil rights III. The divorce, the child support and alimony 2) The guardianship 3) The rules of civil status. EX (ID card) 4) the wills and inheritance 13 The second type: the application of law concerning the time: ▪ The first principle: the principle of non-retroactivity of the law. It means that the law does not apply its provisions on the events that happened in the past. Exceptions: ▪ The exceptions to the principle of non-retroactivity of law ▪ 1 / The text of the legislature on the retroactivity of the law: This principle restricts the judge and does not restrict the legislature. ▪ 2/Criminal law more favorable to the accused: ▪ We have settled the rule of non-retroactivity of law to protect individuals from abuse of powers, ▪ But the application of this rule is not available if the text of the new law on decriminalization or mitigates the punishment to be in the interest of individuals accused of criminal offenses. ▪ The new law will be applied to them, despite having committed crimes under the old law. The immediate or direct impact of the law: ▪ This principle means that the law will be applied after the publication. ▪ It will be permanent until the abrogation of this law by a new law organizing the same subjects. 14  Rights I - Definition of the right Rights are prerogatives or high interest recognized and protected by the objective law to the persons, subject of these rights. Divisions of the right: political rights Non- Hybrid financial Inherent To Personality Financial Intellectual property family personal Real rights To do Original Subsidiary real rights real rights Not to do To give 15  Moral rights (Non-financial) It is a category of rights that cannot essentially be evaluated by money. A. Political Rights: The Are Some Prerogative Which Allow To The Citizen To Participate In The Administration Of His Country When He Fulfil Some Determine Conditions Stated By The Constitution Like The Right Of Election Or Candidature. B. Rights Inherent to Personality: 1. Right to Life (Death Attack) 2. The Right to Physical Integrity (Torture) 3. The Right on Personal Secrets (The Right on The Name - Image - Sound Recording). 4. The Right to Reputation and Honor (Disclosure Of Secrets - The Attack On Offer Members) C. Family Rights They are rights related to the parental or marriage bond. Like the mutual obligations of husband and wife. Also, the obligation of the father toward his son and daughter. It organizes all kinds of matrimonial rights. Financial rights: Are rights which have a fundamental pecuniary value. They can be evaluated by money. They are divided to: Real Rights Personal Rights 16  Real Rights: They are rights which a person exercises directly over things, without requiring any further legal framework, for example the right of ownership. They are two divisions: 1- Original Real Rights 2- Subsidiary Real Rights A.1 - Original Real Rights (Property right or ownership:) granted authority to use the person who own the thing, to exploit, use or dispose it with or without money. A.2 – Subsidiary Real Rights. The creditor’s right to be mortgaged under an agreement with the debtor. B- personal rights (credit rights) The right of the creditor to oblige the debtor. To Do, Not To Do, Or To Give. Hybrid rights: They are authorities (moral and financial) provided by law to a person on immaterial things invented by this person. EX: Intellectual property. 17  The person subject to rights Persons in law are divided to: 1) Natural person  The natural person as a legal concept consists of the human being.  The legal personality starts from the time a child born alive and ends at death.  The start of natural person by birth, the person is born by the complete separation from his mother a physical entity independent and alive.  The end of the natural person by death; real or wisdom Features of legal personality nam Legal patrimony capa domi e status city cile  The name The law protects the right on the personal name.  The legal status: I. Political aspect II. Social aspect III. Religious 18   patrimony The collection of rights and obligations which one person may transfer to another in exchange for financial consideration.  Capacity The legal capacity is the ability of person to exercise rights and incur liabilities. There are two kinds of capacity. Capacity of acquirement. Capacity of exercise. 1. Capacity of acquirement: The ability to enjoy certain rights. 2. Capacity of exercise: The ability to exercise rights which may be enjoyed. The phases of capacity I. Underage of 7 years old (undistinguished child) II. Underage of 21 years old (minor) III. From the age of 21 years old(adult) 19 The rules controlling the phases of capacity: ✓ A minor under 7 years old cannot be a part in a legal act concerning his money, by his own weal, all his acts are null and void. ✓ A minor under 21 years old has the right to the conclusion of any act completely useful to him. ✓ A minor under 21 years old has no right to the conclusion of any act completely harmful to him. ✓ A minor under 21 years old, all acts circling between the usefulness and harmfulness are subject to annulation. ✓ The adults have the ability to conclude all acts, and these acts are valid  The Domicile The domicile Is the place where a person habitually resides or practice his work or exercise his trade, so the person may have more than one domicile at the same time, as may have none. 2) Moral person EX; companies and state’s entities The moral person is a group of persons or properties legally recognized to practice some legal acts, on the name of the group. Types of moral person 1. Public legal persons (ministries, authorities, universities, hospitals, and institutions) 2. Private moral person (companies and associations) 20  The contract Def: as an agreement between two parties or more, that is abiding in law. The contract must produce legal consequences. Conditions: 1- The consent 2- The object 3- The cause 4- The competence “capacity”. 21  Final Revision -What are the sanctions applied on these acts and give definition for every sanction selected: 1- A public employee who insulted his manager in the public function. Administrative, Criminal and Civil (Compensation) 2- A person who violated the contract made between him and another one. A breach of contract concluded between a person and another party. Civil Sanction (Real Execution) 3- The act of bribery. Criminal sanction 4- What are the sanctions applied on a person who pushed another person in his face? Criminal Sanction and Civil Sanction (Compensation) 5- A person who did not respect his obligation as it was described in a contract concluded between him and another person. Civil Sanction (Real Execution) 6- A public employee who usually goes to his work late and does not fulfill his tasks according to the instructions of the public function. Administrative Sanction 7- A person who did not deliver the price of the object of contract made between him and another party. Civil Sanction (Real Execution) 8- The act of corruption in public functions. Criminal and Administrative 22 9- What are the sanctions applied on a drunken person who drove his car exceeding the official speed on the road if he crashes another car? Criminal Sanction and Civil (Compensation) 10- The act of Murder. Criminal Sanction 11- The act of insult. Criminal Sanction 12- A public employee who does not respect the orders of his director in his work. Administrative Sanction 13- A public employee who does not follow the instructions of the public function. Administrative Sanction 14- The act of fabrication of evidence. Criminal Sanction 15- The act of espionage. (‫)تجسس‬ Criminal Sanction 16- The person who absence from his work. Administrative Sanction 17- A public employee who demands bribe to accomplish his work. Administrative and Criminal Sanction 18- A person who uses willful and unlawful force upon another person. Criminal Sanction and Civil (Compensation) 23 19- Driving an automobile while under the influence of alcohol. Criminal Sanction 20- A person who concludes a contract of sale with a minor party. Civil – (Void ability) 21- The act of robbery. Criminal Sanction 22- A public employee who refuses to accomplish his work. Administrative Sanction 23- A contract of buying a building and the purchaser is an undistinguished child. Civil – (Null and Void) 24- A contractor who makes contract of building with another party and does not execute his obligation, the judge enforces him to the execution of the contract. Civil – (Real Execution) 25 A public employee who beat his colleague in a public sector department. Criminal, Administrative, and Civil (compensation) 26 A mad person who drove his car exceeding the legal speed in the road if he crashes into a person and wounded him. Criminal Sanction – Compensation 27 The act of bribery in public function Criminal and Administrative Sanction 24 -What are the branches of law ruling these legal relationships or conflicts: 1-The contract of mandate concluded between two persons to administrate the properties of one of them. Civil law 2-The contract of sale of goods made between two traders. Commercial law 3-The right of candidature/election for political position. Constitutional Law 4-The payment of taxes by a citizen. Financial law 5-The act of bribery. Criminal law 6-The ownership of an agriculture land. Civil law 7-The public rights of individuals toward the state. Constitutional Law 8-The diplomatic and consular relations. Public international law 9-The public function and the instructions imposed to the public employee. -Judicial action between student in Cairo university and Cairo university itself. -a contract of concession of public utility between a private sector corporation and the state. Administrative law 10-The contract of sale of a flat. Civil law 25 11-A contact of rent of an agriculture land. Civil law 12-A contract of foundation of a company between a French and an Egyptian person. Private International law 13 A judiciary conflict between a student in Cairo University and the ministry of high education. Administrative law 14-The case of arbitration of Taba between Egypt and Israel. Public International law 15-The lawsuit between the public prosecutor and the accused of the committing a crime. Criminal law 16-The principle of separation between the three public authorities. Constitutional law 17-A bilateral convention on cultural exchanges between Egypt and France. Public International law 18-The law studies legal relations between countries. Public International law 19-The law studies the regional organizations. Public International law 20-The law determine the form of state and the system of governing. Constitutional Law 26 21-The contract of concession of the management of public utility. Administrative Law 22-A lawsuit between people who pretend that another person took over his land property. Civil law 23-A contract of rent of an agriculture land. Civil law 24-The contract of sale between an Egyptian trader and Chinese trader when the contract is concluded in Saudi Arabia. Private International law 25-The contract of management of a public service conclude between the state and a private sector corporation. Administrative Law 26-The legal relation between the accused and the public prosecutor. Criminal law 27-The contract of sale of car. Civil law 28-The relation between states and the United Nation. Public International law 29-The legal relation between a public employee and his manager. Administrative law 30-The foundation of corporation in Egypt. Commercial law 27 31-The diplomatic and consular relations. Public International law 32-The public function and the instructions imposed to the public employee. Administrative law 33-The contract of lend between two persons of private law. Civil law 34- A contract of donation concludes between Resala corporation and a Private hospital. Civil law 35- The law divided into penal and procedural law. Criminal law 36- The law divided into two laws. Criminal law 37- The law which regulates navigation. (‫)ابحار‬ Maritime law 38- The contract of marriage Civil law 39- The law that regulates the rights of living. Constitutional law 40- Branch of law which organize the freedom of belief. Constitutional law 28 41- The law which distinguishes between legal fact and legal act. Civil law 42- The law organizes the Public Function. Administrative law 43- Branch of law which deliver the water, electricity, and communication to citizen? Administrative law 44- The law regulates the taxation and all the legislations ruling the import and tariffs. Financial law 45- Branch of law that control the public financing. Financial law 46- The law that establishes and govern the right of the state to punish individuals. Criminal law 47- The law which organizes relationships between nations in piece and war. Public International law 48- The law governs the united nation and the security council. Public International law 49- The law that rules regional organization like the united African organization. Public International law 50- A judiciary conflict between public employee and the ministry of finance. Administrative law 29 51- The organization of the courts and the role of prosecutions Civil Procedural law 52- The opening a current account in a bank. Commercial law 53- The law that determines or the participation of loss due to deterioration or damage of ship. Maritime law -DEFINE THE IMPARETIVE LEGAL RULE, THEN DETERMINE THE NATURE OF THESE LEGAL RULES (IMPERATIVE OR COMPLEMENTARY): 1- According to article 5 of the law of companies "limited liability companies are not allowed to undertake insurance, or banking functions or savings, or receive deposits or invest funds to the account of other parties". Imperative legal Rule 2- According to the article 74 of the Egyptian commercial law the contract of transfer of technology must be written, otherwise it will be null. Imperative legal Rule 3- According to article 314 of the commercial law the bank is bound to restitute the deposit of shares in the same place of conclusion of the contract, unless the parties are agreed to the contrary. Complementary legal Rule 30 4- According to article 99 of the Egyptian commercial law the price in the contract of sale is determined according to market’s price, unless the parties are agreed to the contrary. Complementary legal Rule 5- According to the article 179 of the Egyptian civil law the person delegated by a principal to sell his properties is forbidden to buy properties of the principal to himself. Imperative Legal Rule 6- According to the article 163 of the Egyptian civil law every mistake that produce a prejudice to another person, he must recompense him from the prejudice. Imperative legal Rule 7- According to article 89 of the Egyptian commercial law the price in the contract of sale is determined according to market’s price, unless the parties are agreed to the contrary. Complementary legal Rule 8- According to the article 172 of the Egyptian commercial law The commercial agent is forbidden of making any changes in the brand name, subject to any agreement or expression to the contrary. Complementary legal Rule 9- According to Article 114 of the civil law "the legal acts exercised by a mad person is considered null.” Imperative legal rule 31 10- Article 10 of the Law No 67 of 2006 on consumer protection “Any condition appearing in a contract, instrument, document, or other similar item concerning the agreement concluded with the consumer shall be null and void. If it relieves the supplier of the commodity or the service provider of any obligation under this Law” (complementary legal rule) 11- According to the article 15 of law no 159 of 1981 “The primary act of the company and its statues, or the act of its foundation, must be authentic, or the signatures on it, legalized. With respect to every kind of the companies’” (imperative legal rule) 12- According to the article 5 of law no 159 of 1981 “Joint stock companies with shares and limited liability companies are not allowed to undertake insurance, businesses, or banking functions or savings, or receive deposits, or invest funds to the account of other parties.” (imperative legal rule) 13. according to this article 456 of the Egyptian civil law “the price is payable in the place where the subject of the contract is delivered, unless there is agreement or custom to the contrary.” (complementary legal rule) 14- According to Article 226 of civil law "The legal interest are calculated from the judicial claim, subject to another agreement between the parties.” (complementary legal rule) 32