Macau Business Law,Chapter Four

1Explain the following in the context of European Community law:(a)regulations; (3 marks)(b)directives;(3 marks)(c)the role of the European Court of Justice. (4 marks)(10 marks) 2(a)Explain and distinguish between an offer and an invitation to treat in the law of contract.(7marks)(b)Explain why the distinction is important. (3 marks)(10 marks) 3(a)Explain the meaning of exclusion clauses, also known as exemption clauses, in contract law. (2 marks)(b)How are such clauses controlled:(i)at common law;(4 marks)(ii)by statute?(4 marks)(10 marks) 4Explain in the context of employment law,(a)the common law duties imposed on employers; (6 marks)(b)constructive dismissal. (4 marks)(10 marks) 5Distinguish between:(a)unlimited companies;(3 marks)(b)companies limited by guarantee;(3 marks)(c)companies limited by shares.(4 marks)(10 marks) 6Explain the fiduciary duties owed by directors to their companies.(10 marks) 7(a)Explain the rules governing the payment of dividends in relation to:(i)private companies; (4 marks)(ii)public companies. (3 marks)(b)State the consequences of any dividend being paid in contravention of those rules. (3 marks)(10 marks) 8(a)Explain what is meant by ‘winding up’ in company law. (2 marks)(b)Distinguish between:(i)voluntary winding up; (4 marks)(ii)compulsory winding up. (4 marks)(10 marks)29Aerial Ltd is a small independent television production company which specialises in making television programmes which it then sells to television broadcasting companies in the United Kingdom. In January 2001 it signed a contract with an actor called Bob for him to play a leading role in one of its productions to start filming in August 2002. In the course of 2001 Bob became extremely famous and in great demand and Aerial Ltd launched a large advertising campaign publicising his appearance in their forthcoming production. The campaign was expensive, costing £300,000, but it was successful in generating great interest. As a result Aerial Ltd got a contract to sell their production to one of their usual UK clients in a deal that would enhance their usual profit of £500,000 by a further £250,000. More importantly, however, it allowed them to sell their production to an American television company ata profit of £1 million. Unfortunately in May 2002, Bob informed Aerial Ltd that he had no intentions of making a filmwith them. Aerial Ltd have been told that if they replace Bob with a lesser known actor, who is available and willing to do the work, their profit from the UK deal will be reduced to its usual level and they will lose the American deal completely.Required:Analyse the scenario from the perspective of contract law and advise Aerial Ltd as to any action it may take.(20 marks)10Clare, Dan and Eve formed a partnership 10 years ago, although Clare was a sleeping partner and never had anything to do with running the business. T wo years ago the partnership employed Frank as its manager and last year Dan retired from the partnership. Eve subsequently has left much of the day-to-day work to Frank who has let it be known generally that he has become a partner, although he has not. In January of this year Frank entered into two large contracts. The first one was with a longstanding customer Greg who had dealt with the partnership for some five years.The second contract was with a new customer Hugh. Both believed Frank’s claim that he was a partner in the business. Both contracts have gone badly wrong leaving the partnership still owing £50,000 to both Greg and Hugh.Unfortunately the business assets will only cover the first £25,000 of the total debt.Required:Consider and explain the potential liabilities of Clare, Dan, Eve and Frank.(20 marks)11Imran and Jane have established a successful publishing business which they have run as a partnership. They now wish to turn it into a public limited company.Required:(a)Explain the procedure required and the forms that have to be submitted before the public company can begintrading. (10 marks)(b)List and explain the purpose of the various registers that will have to be kept by the company. (5 marks)(c)Describe what accounting records will have to be maintained by the company. (5 marks)(20 marks)3[P.T.O.12Kath owns 76% of the share capital in Lax Ltd. There are only two other shareholders in Lax Ltd. Matt owns 10% and also operates his own separate business in direct competition with Lax Ltd. Norm owns the remaining 14%. All three shareholders are on the board of directors. However, Owen has been the effective chief executive of the company for the past three years and, although he does not own any shares in it, he has a service contract to act as the company’s managing director until 2005.Kath has received a very generous offer from Prime plc to buy her shares in Lax Ltd but only on the understanding that she is the sole shareholder and that Owen is removed from his position as Managing Director of the business.Unfortunately for Kath the articles of association of Lax Ltd contain a pre-emption clause requiring that members wishing to sell their shares must first of all offer them to the other members and only on their refusal to buy them can they be sold to an outsider.Kath intends calling an extraordinary general meeting and proposing the following resolutions:(i)that Owen be removed from the board of directors and replaced by Kath’s son Ron;(ii)that the articles of association be altered in the following ways:(a)to remove the existing pre-emption right so as to permit members to sell their shares to outsiders;(b)to require any member conducting business in competition with Lax Ltd to sell their shares to the companyat fair value;(c)to require any shareholder to sell their shares to the company at fair value on receipt of a resolution of thedirectors to that effect.Kath then intends to use the new articles to require Matt and Norm to sell their shares back to the company and sell her shares to Prime plc.Required:Advise the parties as to the legality and effectiveness of Kath’s proposed actions.(20 marks)End of Question Paper4。

Course NotesACCA F4Corporate and Business LawExams from March 2017Tutor detailsJULY 2016 R E L E A S E第一直觉教育www.fi_Intro ductio n ACCA F 4 No part of this publication may be reproduced, stored in a retrieval systemor transmitted, in any form or by any means, electronic, mechanical,photocopying, recording or otherwise, without the prior written permissionof First Intuition Ltd.Any unauthorised reproduction or distribution in any form is strictlyprohibited as breach of copyright and may be punishable by law.© First Intuition Ltd, 2016第一直觉教育www.fi_ACCA F 4Intro ductio n ContentsPageIntroduction i1Syllabus overview vii2Approach to examining the syllabus vii3How to approach F4 on exam day viii4Study planner ix1: Criminal v civil 11Criminal and civil law 12A summary of the civil court structure 22: Sources of law and interpretation of statute 51Sources of law 52Interpreting statute 83Human rights 103: Offer and acceptance 111Formation of contract 112Offer 123Invitation to treat 134Acceptance 135Exceptions to the communication rule 144: Consideration 151Introduction 152Past consideration 153Sufficiency and adequacy of consideration 164Partial performance 175The equitable doctrine of promissory estoppel 185: Legal relations 191Introduction 192Commercial agreements 203Privity of contract (third party contracts) 216: Contract terms 231Chapter summary 232Distinguishing “terms” from “representations”243Conditions, warranties and innominate terms 254Express and implied terms 255Exclusion clauses 267: Breach of contract and remedies 311Introduction 312Anticipatory breach 313Supervening events 324Remedies for breach of contract 32第一直觉教育www.fi_Intro ductio n ACCA F 48: The law of torts 35 1Introduction 35 2Negligence 35 3Defences to actions in negligence 38 4Professional negligence 40 9: Employment law 43 1Contract of employment 43 2Discrimination 46 3Termination of contract 46 4Redundancy (minimum two years’ service) 48 5Transfer of Undertaking, Protection of Employment Regulations (TUPE) 48 6Constructive and summary dismissal 49 10: Agency law 51 1Definition 51 2Establishment of the relationship (four ways) 51 3Authority of agent 5211: Partnerships 55 1Definition 55 2Partnership Act 1890: main provisions 56 3Limited liability partnerships (LLP) 57 4Limited Partnership Act 1907 58 12: Corporate and other vehicles 59 1Sole trader, Partnership, LLP and Company 59 2Comparison of a PLC and a private company 6013: Separate legal personality 61 1Definition of a company 61 2Other types of corporation (awareness only) 61 3Limited liability 61 4The effect of separate legal personality 62 5Lifting the veil of incorporation 63 14: Company formation 65 1Promoters 65 2Pre-incorporation contracts 66 3Procedure for registering companies 66 4Certificate of incorporation 67 5Records, returns and statutory books 68 6Annual accounts 68 7Accounting records 68 8Confirmation statement 68 15: Constitution of a company 69 1The memorandum of association 69 2Registered office s.86 CA 2006 69 3The Objects clause 69 4Main provisions of model articles 70 5Articles as a contract 70 6Alteration of the Articles 71第一直觉教育www.fi_ACCA F 4Intro ductio n 7Company name 728The tort of passing off 7316: Shares and loan capital 751Share issue procedure 752Share premium account 763Types of share 764Variation of class rights 765Loan capital 776Comparison – shares and debentures 777Company charges 7817: Capital maintenance 811Capital maintenance 812How companies return capital to shareholders 823Financial assistance for the acquisition of own shares 824Distribution of profits 8318: Directors 851Role of directors 852Appointment, loss of office and disqualification 853Directors’ powers 864Agency 875Managing Director 876Company Secretary 877Directors’ duties888Other controls over directors 9019: Auditors 911Small company exemption 912Auditor eligibility 913Appointment of auditors 924Removal of auditors 925Auditor duties 926Auditor powers 937Auditor liability 9320: Company meetings and resolutions 951Introduction 952Comparison - AGM and other meetings 953Resolutions 964Types of resolution 965Voting 976Class meetings 977Plc in crisis 9721: Companies in difficulty 991Insolvency 992Voluntary liquidation 1003Compulsory liquidation (controlled by court) 1004Effect of winding-up 101第一直觉教育www.fi_Intro ductio n ACCA F 422: Administration 1031 Administration orders 10323: Fraudulent behaviour 105 1Insider dealing 105 2Defences 105 3Penalties 106 4Market abuse 106 5Money laundering 106 6The Bribery Act 2010 107第一直觉教育www.fi_ACCA F 4Intro ductio n1Syllabus overviewThe syllabus covers the following areas:A Essential elements of the legal systemB The law of obligationsC Employment lawD The formation and constitution of business organisationsE Capital and the financing of companiesF Management, administration and the regulation of companiesG Insolvency lawH Corporate fraudulent and criminal behaviour2Approach to examining the syllabusApproach to examining the syllabusThe syllabus is assessed by a two-hour computer-based examination.The examination consists of:All questions are compulsory.第一直觉教育www.fi_Intro ductio n ACCA F 4 3How to approach F4 on exam dayManage your time effectivelyFor F4 you are required to answer 20 × one-mark and 25 × two-mark questions totalling 70 marks, plus5 × six-mark questions totalling 30 marks in two hours, giving you 1.2 minutes per mark. It is vital youstick to the time allocation and answer every question.Know the types of question you will faceThe ACCA provides the following guidance on how the assessment will be structured:Section A will be worth 70 marks. It will contain a mixture of 20 one-mark and 25 two-mark questions.The use of the word ‘mixture’ is deliberate, as it is important to emphasise that within the exam paper questions will be randomised, so candidates will have to recognise the area of law they are dealingwith before offering an answer. It should also be emphasised that the whole syllabus will be open toexam and the availability of 45 questions makes it highly likely that all aspects of the syllabus will beexamined in each exam.Candidates will be required to select the correct one from a list of potential answers. As objective test (OT) questions there can only be one correct answer to each question. The allocation of marks willdepend on the complexity of the question, with one-mark questions having fewer possible answersthan two-mark questions.Section B will contain five six-mark multi-task questions (MTQs) and in effect will replicate the threeanalysis/application questions to be found at the end of the previous exam paper under the oldsyllabus. The format of the questions will be similar to the previous problem scenarios and they willcontain a series of tasks that relate to a scenario.Read the question requirement carefullyExaminers’ reports repeatedly state that candidates fail because they fail to read the questionrequirement carefully. Make sure you really understand the question requirement before you start to answer. This is not a time pressured exam – use the time you are given to best effect.Use case law effectivelyACCA advise that you should support answers to the multi-task questions with analysis referring tocases or examples. You should state the point of law established by the case but you do not need togive its detailed facts. It is not necessary to quote section numbers of Acts.The multi-task questions are only looking for brief written responses. Keep your answers succinct and make sure every point is relevant.第一直觉教育www.fi_ACCA F 4Intro ductio n 4Study plannerPlan your study timePlan your diary for when, where and how often you want to study. If you followed a First Intuitioncourse you would receive classroom-based tuition and be expected to do additional work at home.Studying on your own is harder and will take longer. You should expect to spend at least five hoursstudying per week for F4. On this basis it should take approximately six weeks to learn the studymaterial, then you should allow additional time for revision and final question practice (which is vital).Most students should be ready to take the exam two months after commencing their studies. You can do it more quickly if you can put in more hours per week.Make the most out of your study sessionsTry and complete each study session in one go so that you learn each topic in turn. Some sessions arelonger than others, but make sure you take a break between sessions.Read the relevant chapter of these Course Notes, carefully written to cover what you need to pass this exam.It is essential that you try the questions from the First Intuition Question Bank for F4, which has beenwritten by specialists around the syllabus requirements. to give you the question practice you need.This is vital: you will not pass the exam if you don’t practise questions.E XAM S MART:F IRST I NTUITION HELP IS AT HAND!Don’t forget – if you get stuck call your tutor for advice. First read through the tutor guidancein the table below. As you complete each session, tick it off to record your progress.第一直觉教育www.fi_Intro ductio n ACCA F 4第一直觉教育www.fi_ACCA F 4Intro ductio nIntro ductio n ACCA F 44.1 Practical Experience Requirements (PER) and Performance ObjectivesACCA requires students to have 36 months’ practical experience in order to become members. Part of the practical experience requirements is achieving performance objectives that demonstrate that you can apply what you’ve learnt when studying to real-life, work activities.ACCA has set out 20 performance objectives in 10 areas. You are required to achieve 9 performance objectives – all 5 Essential performance objectives and any 4 from 15 Technical performanceobjectives. ACCA has provided guidance on which objectives are strongly linked to which exam. The relevant objectives for F4, which are both Essentials objectives, are:PO1 Professionalism and ethics (relevant to all exams)P04 Governance, risk and control1Criminal and civil law1.1 The differences between civil and criminal law2 1 : Criminal v c iv i l ACCA F 4 2A summary of the civil court structureCOUNTYCOURTA subdivision of which is the small claimscourt (< £10,000). Covers Contract and Tort cases and other civilmattersEMPLOYMENTTRIBUNALLegally qualifiedchairman, 2 othermembers,representingemployer andemployee interestsMAGISTRATESMostly cover smalldomestic casesHIGH COURTJUSTICEIn certain circumstances itis possible to bypass C of Aby using “LEAPFROG”procedureCOURT OFAPPEALSMALL AND FAST TRACK APPEALSEMPLOYMENTAPPEALSTRIBUNALQUEENSBENCHDIVISIONContract andTortsupervisesinferior courtsCHANCERYDIVISIONPartnership andCompanyFAMILYDIVISIONDIVISIONAL COURTMULTI TRACK APPEALSACCA F 4 1 : Criminal v c iv i l 32.1Tracking: The “three track” systemCases are allocated to one of the following.Small claims track, up to £10,000, advantage - quick, informal, often no legal representation.Fast track, £10,000 to £25,000, trials lasting < one day, fixed timetable to enable determination within30 weeks.Multi-track claims > £25,000, and/or > one day, managed by courts, e.g. £25,000 breach of contractcase.County Court hears all small claims and fast track cases. Multi-track cases are allocated to either theCounty Court or the High Court depending on their complexity.AppealsMulti-track cases go the Court of Appeal; otherwise the relevant Division of the High Court hearsappeals from the County Court.2.2The High CourtThree Divisions:❝Queen’s Bench Division (for our purposes the QBD is the most important, hearing contract and tort cases)❝Chancery Division❝Family Division❝Single judge acting alone (very rare for juries to be involved in civil cases)❝Appeals to Court of Appeal, or very occasionally via leapfrog procedure directly t o Supreme Court, if all parties agreeDivisional Co urt of the Queen’s Bench Division❝Two or more judges sit together❝Supervise public authorities, inferior courts and tribunals❝Hear applications for the writ of “habeas corpus” (give up the body) from persons who allege they are being unlawfully detained❝Hear certain criminal appeals on points of law from Magistrates’ and Crown CourtsChancery Division❝Single judge❝Trusts❝Tax❝Company law❝Partnerships❝Probate❝InsolvencyFamily Division❝Divorce❝Embryology and human fertilisation❝Family related appeals from the County Court4 1 : Criminal v c iv i l ACCA F 4Court of Appeal❝Three judges sit together❝Master of the Rolls is Chief Judge❝Hears appeals from the three Divisions of the High Court and Divisional C ourt, Employment Appeals Tribunal, Crown Court and certain County Court casesSupreme Court❝Staffed by Justices of the Supreme Court❝Generally five judges sit together❝Highest appeal court in the UK。

Chapter One Introduction第一章绪论1. International business law1。

国际商业法2. internationality2。

国际性3. International treaties and conventions3。

国际条约和公约4. International Trade Customs and Usages4。

国际贸易惯例5. the principle of party autonomy5。

当事人意思自治原则6. UN Convention on Contracts for the International Sale of Goods (CISG) (1980)6。

联合国国际货物销售合同公约（公约）的货物（1980）《联合国国际销售合同公约》《联合国国际销售合同公约》7. Convention on International Bill of Exchange and International Promissory Note of the United Nations 《联合国国际汇票和国际本票公约》7。

比尔的国际公约和国际本票联合国《联合国国际汇票和国际本票公约》8. Convention on the Recognition and Enforcement of Foreign Arbitral Awards8。

关于承认和执行外国仲裁裁决《承认与执行外国仲裁裁决公约》《承认与执行外国仲裁裁决公约》9. International Rules for the Interpretation of Trade Terms (2000) 《国际贸易术语解释通则》9。

国际贸易术语解释通则（2000）《国际贸易术语解释通则》10. Uniform Customs and Practice for Documentary Credits (UCP600) 《跟单信用证统一惯例》10。

澳门商法备课大纲一、绪论1、商事的概念和范围2、澳门商事法律的历史沿革3、商法的对象---商事关系4、商法的特点（澳门商法典的特点）5、商事法的基本原则二、本论1、商主体2、商行为3、商业名称4、商业账簿5、商业企业的代理6、因经营企业而承担之责任7、企业主之民事责任8、商业企业9、商业企业竞争规则三、商业企业组织1、公司法概述2、无限公司和两合公司3、有限公司4、股份有限公司5、经济利益集团6、合作经营7、隐名合伙四、企业外部活动的法律问题1、商业法律行为的一般原则2、各类商业合同五、债券证券1、有关债权证券的一般性规范2、有关特别债券证券的规范参考书目：1.澳門商法典槪論 = Introducao ao codigo comercial de Macau / 蔣恩慈, 侯放著，澳門基金會, 20002. 澳門商法導論 / 蔣恩慈著. 上海市 : 中國大百科全書出版社, 1994.3. 關於 "商法典" 修訂建議的諮詢文件 : 經營企業, 公司 / 法律改革諮詢委員會及法律改革辦公室. 澳門 : 澳門法律改革諮詢委員會 : 澳門法律改革辦公室, 2007.4. 澳門民商及物業登記法律制度 = Sistemas juridicos de registos civil, comercial e predial de Macau / 趙燕芳, 周友清著. 澳門 : 澳門基金會, 2000.5. 澳門民商法 / 米也天著中國政法大學出版社, 19966. 澳門國際商法研究 / 范劍虹, 金彭年主編. 廣東人民出版社, 2005.7. 港澳台民商法 / 王春旭, 羅斌主編. 人民法院, 19978. Macau business law and legal system / Jorge AF Godinho. Hong Kong : LexisNexis, 2007.9、 “A Brief Presentation of Macao’s Commercial Companies System”Author: Augusto Teixeira Garcia, <中国区域法问题研讨论文集>澳门大学法学院，10. “浅论澳门商法制度中的资本立法原则及资本的功能”，刘耀强，<中国区域法问题研讨论文集>澳门大学法学院11. “澳门商法典之改革”， Augusto Teixeira Garcia，澳门大学法律学院学报1999， 第七期12. 澳门民法典和商法典研讨会（商法典），澳门大学法律学院学报，2000年第九期商法（二）一、商业企业组织8、公司法概述（1）公司法的概念与特征（2）澳门的公司立法沿革（3）公司的概念与特征（4）公司的法律分类（5）公司的商业名称和住所（6）公司的能力（7）公司的设立（8）股东与公司的关系（9）公司机关（10）公司机关据位人（11）公司帐目及薄册（12）章程的修改（13）合并与分立（14）组织的变更（15）解散及清算（16）行为之公开（17）检察院之监察（18）时效9、无限公司和两合公司（1）特征和沿革（2）设立（3）内部关系（4）外部关系（5）出资的消除（6）机关及运做（7）解散与清算10、有限公司（1）概述：概念沿革和特征（2）股东与公司的关系（3）机关及运做（4）一人有限公司11、股份有限公司（1）概述：概念特征及沿革（2）设立（3）股东与公司的关系（4）公司债券（5）股东决议（6）行政管理（7）资本增加（8）控制出资12、刑事责任13、经济利益集团14、合作经营15、隐名合伙一、企业外部活动的法律问题3、商业法律行为的一般原则4、各种商业债5、各类商业合同（1）行纪合同（2）承运合同（3）代办商合同（4）商业特许合同（5）特许经营合同（6）居间合同（7）广告合同（8）运送合同（9）一般仓储寄托合同（10）旅舍住宿合同（11）交互结算合同（12）回购合同（13）银行合同（14）担保合同（15）保险合同（16）寄售合同（17）供应合同四、债券证券3、有关债权证券的一般性规范4、有关特别债券证券的规范。

/中华会计网校会计人的网上家园F4公司法与商法（英文）简介F4 这门课程是公司法和商法，从这个名字就可以看出来是一门有关于法律的课程。

在F4中一共可以被分为八个大板块，分别是Essential elements of the legal system, The law of obligation, Employment law, The formation and constitution of business organization, Capital and the financing of companies, Management administration regulation of companies, Legal implications of companies in difficulty or in crisis和Governance and ethical issues relating to business。

在Essential elements of the legal system中，同学们会了解到英国法律体系的构成，包括法庭结构等，还有比较重要的一点就是法律的起源，这一点会贯穿整个F4的学习和考试过程。

在The law of obligation中，第二个比较重要的知识点会在这里进行着重的讲解，那就是有关合同的知识点，合同是怎样构成的，以及如果违约后的办法等。

在Employment law中，顾名思义，会学习到有关劳务合同的相关知识。

在这个板块中，同学们会接触到比较多的数字，比如需要在一个企业中联系工作两年才可以申请redundancy payment。

在The formation and constitution of business organization中，会了解和掌握有关代理和合伙企业的内容。

和法律的起源类似，代理这部分内容也是贯穿了大本部分F4的知识体系，因为同学们以后就会了解，企业的董事大部分都是充当代理的身份。

ACCA-F4第二章Sources of English lawOverview SOURCESCase law Statute EuropeCommonLaw Equity Primary Secondary Primary Secondary1 Sources of law(a) Common law(b) Equity(c) Statute (legislation) including delegated legislation(d) European Union Law2 Common law and equity2.1 This is a system of law based upon decided cases. Legal rules (initially created by judgeswhen hearing cases) are followed by judges in subsequent like cases.It developed after the Norman Conquest.2.2 Initially only common law rules were derived from cases. The aim of common law was certainty. However various problems within the common law system resulted in the development of another kind of case law called equity. Equity sought to address some of the problems contained in the common law system. Its aim is fairness.2.3 Amongst the common law problems were inadequate remedies, a failure to recognise trusts and a reluctance to allow new causes of action to develop.2.4 At first common law and equity operated as two distinct systems of law with their own independent court and judges.Given that equity is based on fairness however it was eventually decided that in the event of conflict between the twosystems equity should prevail.2.5 The two systems have now been merged together. In practice therefore, if you seek a remedy in the courts today, the court will look first to the common law. If the common law can deal with your problem adequately there will be no recourse to equity. If the common law is unable to deal adequately with the problem the court will look to equity.2.6 Equity is therefore referred to as to a supplement to the common law.2.7 The operation of equity is entirely discretionary whereas common law applies automatically.2.8 Maxims:'He who comes to equity must come with clean hands.''Equity does not suffer a wrong to be without a remedy.'3 Statute (primary law)3.1 Acts of Parliament:Created by parliament. All new statutes should be compatible with HRA 98. Courts cannot strike out an Act of Parliament.Procedure:Green paper: Discussion documentWhite paper: Statement of policy(a) First readingNo debate - Bill is introduced to the timetable of the house.(b) Second readingGeneral debate and vote.(c) Committee stageBill is scrutinized and amendments suggested.(d) Report stageAmendments reported back to the House.(e) Third readingBrief debate and vote.(f) Same procedure in other House(House of Lord's has power to amend and delay passage of Bill: Parliament Acts 1911-1949).(g) Royal assentStudy point: Ensure you know what happens at each stage.Overview DELEGATED LEGISLATIONDelegated Bodies Types Controls AdvantagesDisadvantages3.2 Delegated Legislation: (Secondary law)Created by persons/bodies to whom parliament has delegated powers e.g. government ministers, local authorities, Inland Revenue and Customs and Excise. Delegation made possible by an 'Enabling' Act.(a) Types:-- Orders in Council-- Bye laws-- Statutory instrumentsActs of devolved assemblies(b) Controls:Parliamentary: House of Commons committee on statutory instruments- Statutory instruments must be laid before parliament prior to enactment although some require positive parliamentary approval- Judicial: Courts may declare them "ultra vires" (beyond capacity) (unlike Primary Acts). They must be compatible with HRA 98.- Ministerial: bye-laws must be approved by a minister(c) Advantages:-- saves time-- technical and local expertise-- allows for swift alterations in the law to keep pace with changing social and historical conditions(d) Disadvantages:- lack of democratic accountability- attack on concept of parliamentary sovereignty- concentrates power in the hands of civil servants- complexity and bulk- can be attacked in courts which may lead to uncertainty.Study point: Revisit this area having noted the impact of HRA 98 in Chapter 4.4 European community lawOverview European community LawInstitutionsLegislation4.1 Forms part of UK law by virtue of European Communities Act 1972Institutions of the Union:(a) European Court of JusticeECJ is the final authority on community law.(b) Council of MinistersThe Council is made up of ministers from Members States.The Council together with the Parliament is responsible for the adoption of legislation proposed by thecommission.(c) The CommissionMade up of commissioners from Member States. They propose draft legislation. Also ensure treaty obligationsobserved can refer cases to ECJ.(d) The European ParliamentMade up of directly elected members. It is an advisory and debating body which with the Council of Ministersbring law into effect.Study point: Ensure you can succinctly describe the function of each institution.4.2 Direct applicability and direct effectCommunity law which is directly applicable in member states comes into force without any act ofimplementation by members states.Law has direct effect if it confers rights and obligations directly on individuals.4.3 Types of European LawPrimary Law: that contained in the Treaties.Secondary Law:(a) Regulations (directly applicable)These are binding and enforceable from the time of their creation. Seek to give effect to Treaty aims. Takeeffect uniformly through out the EU.Failure to implement a directive within the specified time period, or failure to implement it completely may allow individuals to rely on the directive even though it is not implemented through national legislation. Such action can only be taken against the state or emanation of the state.(b) Directives (not directly applicable)Statements of principles which seek to harmonise EU laws, but left to member states to alter national law so asto achieve these aims within a specified period.(c) Decisions (binding only on recipient states and individualsto whom they are addressed). These aredecisions relating to the operation of E.U. laws and policies.4.4 Impact on Parliamentary Sovereignty?(a) Parliamentary sovereignty(i) Parliament is the prime law maker.It can overrule all other sources of law including previous statutes.(ii) Parliament cannot restrict a future parliaments’ ability to c hange the law.(iii) The courts must apply statute even if they think the law operates unfairly.(b) Conflict between Parliamentary Sovereignty and membership of the EU(i) A directive may require Parliament to change the law.(ii) A regulation may be passed which conflicts with an existing Act of Parliament.(c) Points to bear in mind(i) The UK is fully represented in all the EU’s institutions.(ii) UK ministers sit on all council meetings and vote on all proposed law.(iii) Ultimately, Parliament could repeal the ECA 1972.Legal reasoningOverview JUDICIAL PRECEDENTRules Other pointsRatio Obiter Hierarchy of Precedent ceasesdecidendi dicta the courts to be binding1 Doctrine of judicial precedent1.1 Common law and equity are a body of judge-made laws contained in decisions of the courts called judgements.1.2 Judge – made law or case law is whereby judges followthe decisions of other judges. The doctrine of precedent is sometimes referred to as 'stare decisis': let the decision stand.1.3 For case law to be workable as a source of law it needs to achieve consistency. Various 'rules' have therefore developed to achieve this aim.1.4 ‘Rules’:1.4.1 Only statements of law made by judges can form precedent. In turn these statements must be divided up into ratio decidendi (the reason for the decision) and obiter dicta (other comments).Only the ratio decidendi forms the basis of precedent as it is this reasoning which is vital to his decision. Obiter dicta are statements of general law (or hypothetical situations) which are not necessary for the decision in the case and hence are not binding.1.4.2 As the ratio decidendi of a case stems from specific facts if a precedent is to be followed in a subsequent case the factsof that case must be sufficiently similar.1.4.3 The precedent must have been set by a court capable of creating precedent and not have been overruled.1.5 Hierarchy of the courts:(a) House of Lords–binds all lower courts but not itself (exceptional cases)(b) Court of Appeal–binds all lower courts and itself(c) High CourtJudge sitting alone –binds all lower courts not divisional courtsJudges sitting together –binds all lower courts and divisional courts(d) CrownMagistrates–bind no-one at allCounty1.6 A precedent ceases to be binding if:(i) It has been overruled by statute or EU law or by a higher court.(ii) It can be distinguished on the facts i.e. if the material facts are not the same.1.7 Advantages:(i) Detail.(ii) Flexibility.(iii) Consistency.(iv) Fairness.1.8 Disadvantages:(i) Bulk.(ii) Restricts judicial discretion.(iii) reactive system.(iv) Lack of democratic accountability.1.9Persuasive authority:These are decisions (e.g. those of commonwealth countries, inferior courts and obiter dicta) which are not binding but may influence the decisions of judges in future cases.2 Interpretation of statutesOverview STATUTE – INTERPRETATIONStatutory aids Extrinsic aids Presumptions2.1Interpretation:Statutory aids:(a) Interpretation Acts(b) Interpretation sections of individual statutes(c) PreamblesExtrinsic aids:(a) Dictionary(b) Hansard – Pepper v Hart(c) Reports of committees2.2 Presumptions:(a) Act applies to the whole of the UK but not elsewhere(b) Act won’t be contrary to existing EU or international law(c) Act won’t bind the Crown(d) Act won’t have retrospective effect(e) Act does not alter the existing law nor repeal other Acts.2.3 Interpretation Rules:Overview STATUTE – INTERPRETATION RULESLiteral Golden Mischief Purposive EG(a) Literal ruleThe literal rule requires judges to give words their ordinary dictionary meaning.(b) Golden ruleThe golden rule acknowledges that the application of the literal rule may give rise to an absurdity, hence theordinary sense of the words can be modified to avoid such an absurdity.(c) Mischief ruleThis rule applies where the literal rule cannot be applied due to ambiguity. It seeks to look at the purpose forwhich the statute was enacted and interpret the statute in light of that.(d) Purposive approach (especially used in ECJ)Courts ascertain purpose of statute and give effect to it, whatever the wording of the statute. Some UK judges take a more purposive approach than others(e) Ejusdem generisWhere general words follow specific words the general words must be interpreted by reference to thespecific words used.2.4In Chapter 4 we consider the impact of the Human Rights Act 1998 on the interpretation of statutes.。