LAW 033 NOTES.pdf

CHAPTER 1 : INTRODUCTION TO LEGAL SYSTEM OF THE WORLD DEFINITION 1. Process of interpreting and enforcing the law a. Rights and responsibilities of people 2. Deals with creation and administration of law a. Settling disputes between people and government 3. Wu min aun (...

CHAPTER 1 : INTRODUCTION TO LEGAL SYSTEM OF THE WORLD DEFINITION 1. Process of interpreting and enforcing the law a. Rights and responsibilities of people 2. Deals with creation and administration of law a. Settling disputes between people and government 3. Wu min aun (2012) a. A legal system is a framework of rules and institutions within a nation that regulates the individual’s relationship with others and between the individuals and the government TYPES OF LEGAL SYSTEM IN THE WORLD\ 1. Civil legal system a. Emphasis on legal codes formulated by legislature b. Origins i. Derived from roman law ii. Emperor justinian I produced corpus juris civilis iii. After the dark ages, countries derive from roman law (using simplified codes) iv. France’s civil code 1804 conquered most of europe v. Countries using civil law: 1. Netherlands, Italy, Spain, Germany, russia… 2. Common legal system a. Precedent based law b. Rules of law derived from judicial precedent c. Law is created according to decision of judges d. Origins i. Started in england 12th century ii. From writs (formal orders) iii. Writs 1. Order or letter from the king 2. Has causes of action or complain 3. Writs not enough, so also have equity to give remedies iv. Decisions published, courts can look up precedents v. Countries using 1. Australia, england, malaysia CHARACTERISTICS AND DIFFERENCES Differences Common Civil Definition 1. Involves case law 1. Characterised by developed by judges codified core principles Development 1. Prevalent in england 1. Implemented in the and former colonies colonies of european imperial powers (spain) Source of law 1. Lies in judicial 1. Codified into statutes decisions or codes 2. Previous cases used 2. Precedent is not in similar situations binding Reliance on precedents 1. Strong reliance 1. Weak reliance Role of judges 1. Make rulings, interpret 1. Have investigating laws, set precedents judge and trial judge and acts as referee in 2. Justice is best served cases when judge is involved 3. Investigating judge take lead i investigation Role of lawyer 1. Lawyers present to 1. Represents interest of judge and examine clients but not so witness central 2. Persuade others on points of law and active during proceedings Type of argument 1. Adversarial 1. Inquisitorial a. 2 sides a. Role of judge present is not to act arguments to like a referee neutral judge b. Court will ask questions and investigate Presumption of innocence 1. Accused is presumed 1. Judge recommend innocent trial date means has 2. Prosecutor has to evidence of guilt establish the guilt of 2. Trial becomes about the accused proving innocence against evidence 3. Many countries have  begun implementing presumption of innocence in their legal system Trial by jury 1. Jury decide whether 1. Rare accused is guilty 2. Jury also determine 2. The right to have a the guilt of the jury depends on accused country’s law ADVANTAGES AND DISADVANTAGES System Advantages Disadvantages Civil 1. Codified 1. Rigid and difficult to 2. Written in simple and change logical manner 2. More power to 3. Easy to read legislature 3. Cannot cater to moral situations 4. Not easy to amend in urgent times Common 1. Judges play a role by 1. Once bad decisions examining facts of made, decision stays case, administer la, 2. No precedent = make interpret legislation new ruling 2. Precedent is more 3. Needs to be recorded consistent 3. Can respond to unpredictable cases 4. Reacts to changing social values 5. Politically independent RELIGIOUS LEGAL SYSTEM 1. Stems from sacred texts of religious traditions and covers all aspects of life 2. Islamic law one of most recognised religious laws a. 2 primary sources : quran, sunnah 3. Islamic law evolves through application based on precedents etc… 4. Countries adopting a. Iran, saudi, arabia 5. Differences between religious and man made  Differences Religious Man-made Source God or prophets Human being Nature Cannot be changes Can be changed according demand dispute Settled by officers of religion By appointed judge Punishment Include punishment in this punishment - imprisonment, world and after whipping CHAPTER 2 : SYSTEM OF JUSTICE WHAT IS AN ADVERSARIAL SYSTEM - Defends the client’s interests at all costs - Prosecution and defence go against each other - Judge acts as a referee to ensure fairness WHAT IS INQUISITORIAL SYSTEM - Used by civil law countries - Judge conduct the summary process by conducting investigation and examine of witnesses and documents - The result of summary process will be made available to defendant, if there's sufficient evidence of guilt -> move to trial - Trial is for defendant to prove his case against the summary result (prove innocence) - Features: FEATURES ADVERSARIAL INQUISITORIAL Control 1. Party controlled 1. Court controlled 2. Case organised and 2. Control lies in hand of developed by parties judges 3. Each sie presents a. Reduces evidence and motions disturbance by lawyers Role of judge 1. Passive 1. Active 2. Judge acts like a 2. Judges acts as referee investigator a. Ensure rules 3. Examine evidence of evidence 4. Determine order of and correct evidence taken procedures 5. Free to weigh up followed value of evidence  3. Ensures trial is fair 6. Exercise power by and equal asking for 4. Judge don't interfere supplemental too much evidence 7. Conduct examination of witness 8. Establish facts 9. Attach relevant codified law Role of lawyers 1. Active 1. Passive 2. Success is based on 2. Not depending on skill skills of lawyers of lawyers 3. Lawyers decide on 3. Based on quality of how to handle investigation by judge investigation and lawyers 4. Search for favourable evidence for client 5. Present favourable interpretation of law 6. Challenge the evidence presented by opposition Verdict 1. Declared by jury 1. Declared by judge based on facts based on evidence 2. No jury = judge and codified law declare based on question of law and facts Process 1. Examination in chief 1. Pre-trial done by a. Direct judge questioning of 2. Question witness party’s witness etc… to discover under oath evidence 2. Cross examination 3. Lawyers keep an eye a. Witness that on investigation and testified may make requests in questioned by the end but is still opposing controlled by judge counsels to 4. If judges recommend determine a trial = trial credibility 5. Only can go to trial if 3. Re-examination the judge i convinced a. Resolve defendant is guilty matters 6. Defendant have to brought up prove his innocence during cross to the judge examination  b. Clarify weakened testimony LITIGATION AND UNDERSTANDING CASES CIVIL LITIGATION VS CRIMINAL LITIGATION CIVIL CRIMINAL - Concern disputes between individuals - A crime is against the state - Govern matters such as contracts, - Govern matters like theft, murder, partnerships, agreements, marriage, rape wills, tort, property - Prosecuted by the state in the name - Lawyer represent clients of a prosecutor - Burden of proof lies on the plaintiff - Prove that person has committed the - Plaintiff has to prove that the offence charged defendant has committed a wrong act - Punish the wrongdoer - Compensate plaintiff UNDERSTANDING CASES - 5 preliminary matters: 1. Parties to the suit - Plaintiff must be a party to the dispute in order to initiate a case in the court - requirements: - To sue in his own name must be 18 years old (sui juris) - In (compus mentis) sound mind/not crazy - Plaintiff : a party who brings case to the court sue another person - Defendant : a party who defend the suits against him 2. Locus standi - Any person commencing an action must have locus standi (right to take action) - Concerns the right person to take action - A plaintiff has locus standi if: - He is affected by the defendant's action - Matter relates to you in a certain way - Case: - Malaysian trades union congress v Government of Malaysia - MTU’s request for syabas’ documents concerning increase in water tariffs was rejected by minister in charge - Held : Applicant had to show genuine interest in the subject at matter  - Not necessary for applicant to establish infringement of a private right or the suffering of special damage 3. Cause of action - Yong J in Lim Kean V. Choon Khoon (1970) says, a cause of action accrues when theres a person who can sue and be sued when all facts have happened - Lord Diplock in Letang V. Cooper (1965) defined it as a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person - Why is it important? - Must have complete cause of action which is complete - Determines the form of proceeding in court - Pleadings in every action must state the cause of action - Case: - Taib v Mohamed Abdullah & Ors (1983) - Plaintiff was convicted in kadi’s court but lost the case, then appealed - Before appeal, he commenced an action for malicious prosecution - Held : action failed because lack of cause of action because it was under appeal - Sio Koon Lin v SB Mehra (1981) - Plaintiff commenced action for recovery of areas that were not due at the time of claim - Held : plaintiff had no cause of action since it isn't due yet 4. Limitation period - Period within which the suit must be brought up - Within a specified period of time - If not it will become time barred - Time runs when there's complete cause of action - Action for tort and contract - Section 6 (1) of limitation act 1953 - Action must be taken 6 years from the cause of action was completed - When wrongful act happened and not when it was discovered by the plaintiff - Dependency claim - Section 7 (5) of civil law act 1956 - Within 3 years after death of person - Action against public authorities - Section 2 of public authorities protection act (PAPA) 1948 - Action must be brought within 3 years after the wrongful act complained 5. Remedies - Any method under law to obtain redress  - May claim from one or more of the following remedies: 1. Damages - Compensation for any law suffered - Compensate innocent party for loss suffered - Put the innocent party to a place where he was not affected 2. Rescission of contract - Cancellation of a contract - Parties may put an end to the contract 3. Specific performances - Discretionary remedy in the hand of the court - Governed by specific relief act 1950 - Court direct the party to fulfil the contract 4. Injunction - Restraining a person from doing something, i.e, a restraining order CHAPTER 3 : CLASSIFICATIONS OF LAW INTRO 1. Different categories into which all areas of law can be collated 2. Distributes laws according to unique characteristics PURPOSE OF CLASSIFICATIONS OF LAW 1. Determine the types of procedure involved 2. Determine the types of remedies 3. Explain our rights and obligations CLASSIFICATIONS OF LAW 1. Common law and equity Common law Equity 1. Apply principle of stare decisis 1. Developed by chancellors when 2. Known as precedent dealing with petitions sent to the king 3. Complete system of law because rules were too strict 4. Remedies available 2. Means fairness 5. Only remedy is in form of damages 3. Complements the common law when it is harsh 4. Remedies are equitable in nature  1. National and international law CLASSIFICATIONS OF LAW NATIONAL INTERNATIONAL LAW 1. Public 1. Public a. Constitutional a. Treatises b. Administrative b. Sea c. Criminal c. International criminal 2. Private 2. Private a. Contracts a. Jurisdiction of court b. Trusts b. Choice of law c. Tort c. Enforcement of judgement National law International law 1. Rules and principles which govern 1. Govern relationship and dealings with relationship between citizens of a other nations country 2. Only work if nations abide those rules 2. Known as state law 3. Regulates conduct of sovereign states 3. Regulates conduct of a person within 4. Promotes welfare of international a sovereign state community and respects the 4. How to run a country and help the sovereign states interest of people Public international law Private international law 1. Relationship between states inter se. 1. Determine which law prevails when a 2. Disputes between countries case involves people from different nations 2. Known as conflict of laws Public law Private law 1. Relationship between individuals and 1. Relationship between individuals and state individual 2. Protect social interest 2. Rights and duties of individuals 3. Criminal law amongst themselves a. Offences committed by 3. Civil law individuals against state 4. Protect individual interests 4. Constitutional law a. Fundamental human rights, and form of government 5. Administrative law a. Power and duties of local authorities Criminal law Civil law 1. Dealing with crimes and their 1. Disputes between people or people punishments between government 2. Wrongs committed against state 2. Duties that exist among and between 3. Give lessons not to commit similar persons crimes 3. Compensate innocent party for damage done Written law Unwritten law 1. Enacted by parliament of SLA 1. Not formally enacted 2. Comprises of 2. Found in cases decided by court a. Fed con 3. Comprises of b. State con a. English common law and c. Legislation equity d. Subsidiary legislation b. Judicial precedent c. Local customs Substantive law Procedural law 1. Governs rights, duties and liabilities 1. Governs the procedure in the amazon citizens and government enforcement of rights and duties 2. Defines the legal rules and principals 2. How to file a case etc… - Syariah / islamic law - Civil courts run parallel with islamic syariah courts - Muslims can be tried on religious and moral charges - Imposed only on muslims about moral and family matters - Non-muslim follow secular laws for the same matters - Islamic law consists of - Morality - Inheritance - Marriage - Divorce - Applied in whole country but more serious in kelantan and terengganu - Syariah courts have jurisdiction to try civil and criminal cases - Syariah civil cases - Jurisdiction in personal law matters - Syariah criminal cases - With regards to criminal cases (in islam)