The oldest division of law in the European tradition originating in ancient Rome

PRIVATE LAW

(1) law including principles regulating autonomous and free activity of society in the social and economic areas of life;

(2) parties are equal to each other and before the law - the law regulates their relationships (only serves as a support- establishment, modification or termination of them) and ensures equal legal protection of the private activity of the subjects of the law -> the civil - law method of regulation -legal position of the parties is equal - neither can unilaterally and authoritatively impose its will on the other but the will of the parties helps in shaping/modifying their legal relations;

(3) - private - law is based on relatively valid regulations (IUS DISPOSITIVI) - that only suggest a suitable conduct but does not impose or prohibit it;

(4) The "self - service " principle - subjects of law are self-sufficient and state authorities are involved only on the initiative of the interested parties (e.g. when parties bring a lawsuit to a court);

(5) The principle of IGNORANTIA IURIS NOCET = ignorance of the law harms- if subjects of law do not know regulations (their rights or obligations), they will bear the consequences (no exercising of rights or sanctions for failure to act, or for failure not to act)

(6) Private law- examples: civil substantive law (e.g. contract law; commercial law); family law; international private law.

PUBLIC LAW

(1) law regulating the system of public authorities and relations between the state and the society - ensures the protection of collective, general and social interests, common public interests (of the state), etc

(2) The subordination relations between parties- parties are not equal to each other and before the law- public authorities have the power of a state control and impose certain duties on the individuals/entities

(3) public law is based on absolutely valid regulations (IUS COGENS) - an addressee of the instructions (contained in the norms) must follow them under legal consequences - pubic law cannot be modified by agreements of private persons - if a person has a legal obligation - he/she must fulfil it fully (to act or to cease an act)

(4) state authorities act ex officio - they undertake actions even without initiative of the parties (e.g. a prosecutor);

(5) The principle of IGNORANTIA IURIS NOCET has no significance - state authorities act even when parties are unaware of the wording of the law

(6) Public law- examples: constitutional law; administrative law; criminal law; financial law; civil, administrative, criminal procedure; public international law.

Two different ways of understanding the division between private and public law:

PUBLIC LAW: actions of the state and its officials vis-à-vis the individual citizen and forms through which the relationship between them is regulated;

PRIVATE LAW: private sphere with matters for individuals themselves to regulate, without the interference of the state - its role is limited to provision of the mechanisms for resolving the disputes of the individuals, to decide issues and to enforce decisions

Example:

PRIVATE LAW -> contract law

PUBLIC LAW -> criminal law

• Civil law and criminal law.

1 - civil law - is a form of private law and involves the relationships between individual citizens. it is the legal mechanism through which individuals can lodge claims against each other, have their rights adjudicated and enforced. Civil law serves as a means for settling the disputes that arise between individuals and provide legal remedies. It does not deal with punishment as such but with specific legal mechanisms.

2 - Criminal law - is a form of public law and concerns the conduct of different subjects of law that the state disapproves of, controls and want to end. It involves the enforcement of particular forms of behaviour. The state ensures the compliance with the legal norms which it protects. Criminal law deals with such issues as guilt, responsibility and appropriate punishments.

Civil law-> parties: a claimant (plaintiff) x sues y = x brings a claim against y (defendant)

In civil cases individuals or business individuals (= legal) are the parties

criminal law-> parties: claimant (plaintiff) <-> defendant/accused

a prosecutor (representing the state) prosecutes a defendant (or the accused)

Attention: The same event may lead to criminal and civil actions.

A crucial distinction between criminal and civil law cases is visible during proceedings - the level of required proof is different - in the criminal cases prosecutor must prove the defendant's guilt "beyond any reasonable doubt", while in civil cases - the level of proof is smaller

(art 6 of the Polish Civil Code states that a burden of proof rests upon the plaintiff= he/she who claims something)

Civil and criminal (=penal) proceedings

1 - civil law - is a form of private law and involves the relationships between individual citizens. it is the legal mechanism through which individuals can lodge claims against each other, have their rights adjudicated and enforced. Civil law serves as a means for settling the disputes that arise between individuals and provide legal remedies. It does not deal with punishment as such but with specific legal mechanisms.

2 - Criminal law - is a form of public law and concerns the conduct of different subjects of law that the state disapproves of, controls and want to end. It involves the enforcement of particular forms of behaviour. The state ensures the compliance with the legal norms which it protects. Criminal law deals with such issues as guilt, responsibility and appropriate punishments.

Civil law-> parties: a claimant (plaintiff) x sues y = x brings a claim against y (defendant)

In civil cases individuals or business individuals (= legal) are the parties

criminal law-> parties: claimant (plaintiff) <-> defendant/accused

a prosecutor (representing the state) prosecutes a defendant (or the accused)

Attention: The same event may lead to criminal and civil actions.

A crucial distinction between criminal and civil law cases is visible during proceedings - the level of required proof is different - in the criminal cases prosecutor must prove the defendant's guilt "beyond any reasonable doubt", while in civil cases - the level of proof is smaller

(art 6 of the Polish Civil Code states that a burden of proof rests upon the plaintiff= he/she who claims something)

Criminal and civil procedure are different. Although some systems, including the English and French, allow private persons to bring a criminal prosecution against another person, prosecutions are nearly always started by the state, in order to punish the defendant. Civil actions, on the other hand, are started by private individuals, companies or organizations, for their own benefit. In addition, governments (or their subdivisions or agencies) may also be parties to civil actions. The cases are usually in different courts, and juries are not so often used in civil cases.

In jurisdictions based on English common-law systems, the party bringing a criminal charge (that is, in most cases, the state) is called the "prosecution", but the party bringing most forms of civil action is the "plaintiff" or "claimant". In both kinds of action the other party is known as the "defendant".

Most countries make a clear distinction between civil and criminal procedure. For example, a criminal court may force a convicted defendant to pay a fine as punishment for his crime, and the legal costs of both the prosecution and defense. But the victim of the crime generally pursues his claim for compensation in a civil, not a criminal, action. In France and England, however, a victim of a crime may incidentally be awarded compensation by a criminal court judge.

Evidence from a criminal trial is generally admissible as evidence in a civil action about the same matter. Но не наоборот.

If the plaintiff has shown that the defendant is liable, the main remedy in a civil court is the amount of money, or "damages", which the defendant should pay to the plaintiff.

The standards of proof are higher in a criminal case than in a civil one, since the state does not wish to risk punishing an innocent person. In English law the prosecution must prove the guilt of a criminal “beyond reasonable doubt”; but the plaintiff in a civil action is required to prove his case “on the balance of probabilities”. Thus, in a criminal case a crime cannot be proven if the person or persons judging it doubt the guilt of the suspect and have a reason (not just a feeling or intuition) for this doubt. But in a civil case, the court will weigh all the evidence and decide what is most probable.

Alternative Dispute resolution: conciliation, arbitration, mediation, ambudsman.

The main advantages of using an ADR are: you may resolve your problem; you may be awarded compensation; the procedure is less formal than going to court; in some schemes, the decision may be binding on the trader but not on you, leaving you free to pursue through court if you wish; it may cost you less than going to court; the procedure is confidential.

Legal norms

• It is the smallest element of law

• It is a rule of conduct created on the basis of several legal provisions

• It is established by the competent authority in a special legal process

• It has a general and abstract character

• It is announced and protected by the state with the mechanisms of enforcement

• A legal norm is a statement containing the directive of a public authority ordering its addressees to behave under specific circumstances in a way that is specified in it

A legal norm must have a general and abstract character:

• General character of a legal norm - a legal norm is not addressed to one, precisely described addressee (e.g.: “John Smith”) but to the group of subjects described by their name or specific category (e.g.: “a tax payer”, “a parent” or “every man”)

• Abstract character of a legal norm - a legal norm concerns repeated behaviours (e.g. “in case of a fire”, “by the end of the month following the purchase of a product” or “at the moment of signature”) à multiple application and universal character à imposed or forbidden behaviour is required from an addressee of a legal norm in every case when certain circumstances described in it occur

There are three elements of legal norm:

Hypothesis:

• It is an assumption which determines the conditions in which somebody is assigned with a particular obligation or a right (description of the surrounding in which the addressee must follow specific required behaviour)

• It indicates an addressee of the legal norm and its characteristic features (e.g.: profession, age, state of health) and circumstances (phenomena, incidents, places where somebody acts - e.g. workplace in case of labour law)

• E.g.: A seller who got a higher price than the fixed price (...)

Disposition

• It indicates the way and content of the behaviour of an addressee of a legal norm

• It describes the obligations and rights of an addresse of a legal norm:

• E.g. (...) is obliged to return to the buyer the difference obtained in price (...)

Sancion

• It determines the legal consequences (punishment, burdens, discomfort) of the behaviour of an addressee of a legal norm which was not in accordance with the obligation (order or prohibiotion) prescribed by it

• There are different types of sanctions:

- Punishment sanctions = repressive sanctions (E.g. a fine for tax evasion)

- Executive sanctions

(E.g. if a student is in constant breach with the school regulation in regard of his/her inappropriate clothing, a teacher must make a written note of it, ask parents to come for discussion and a student to consult a school pedagogue)

- Sanctions of invalidity

(E.g If a contract was not concluded in a required form, it will be invalid and will create no rights or duties on the parties)

There are “sanctioned norms” and “sanctioning norms”

• E.g.: (...) otherwise he is punished with up to three years in prison.

„A seller who got a higher price than the fixed price (hypothesis) is obliged to return to the buyer the difference obtained in price (disposition), otherwise he is punished with up to three years in prison (sanction).”

Constitutional/ international/ EU law

• Sources of law in civil law system an example of Poland:

1-Constitution of the Republic of Poland;

2-Ratified international agreements;

3-EU regulations, directives and decisions;

4-Regulations;

5-Domestically established acts.

The hierarchical order of the sources of law- legal acts of lower rank have to be consistent with legal acts of higher rank and always with the Constitution. The breach of the hierarchical constitutional order of the sources of law = a breach of the Constitution - result: invalidation of the unconstitutional lower rank act by the Constitutional Tribunal + with regards to norms of sub-statutory law - non application by courts.

Article 88 of the Polish Constitution: All legal acts= statutes, regulations and acts of local law come into force under the condition of their promulgation (announcement) in the Official Journal of Laws- the principles and procedures for promulgation must be specified by statute.

International agreements ratified with prior consent granted by statue must be promulgated in accordance with the procedures required for statutes. The principles of promulgation of other international agreements must be specified by statues.

The promulgation= announcement of the legal acts in the Journal of laws of the Republic of Poland (e.g. Dziennik Ustaw RP) or the Official Journal of Laws of the European Union.

Article 89,90,91 of the Polish Constitution discusses the status of international agreements in the system of Polish sources of law. IMPORTANT!

According to article 87 of the Polish Constitution- the ratified international agreements belong to the part of Polish legal order of universally binding law. The state bodies which apply law (mainly courts) should establish provisions of domestic law in accordance with international law.

A ratified international agreement becomes a part of Polish law upon its promulgation in the Journal of Laws and is directly applicable, unless its application depends on the enactment of a specific statute - article 91(1)

The principle of the direct application of international agreements:

1 - obliges public authorities to apply provisions of international agreements;

2 - individuals may directly refer to international agreements as to sources of their rights and obligations.

In case of conflict between an international agreement and the constitution- the Constitution takes precedence and remains the highest law of the state Solution:

1- the amendment of the Constitution in line with international agreement;

2- the denouncement of the international agreement of the amendment of international agreement in line with the constitution is impossible.

Article 90-91 (3) - an integration clause (EU law as a source of law in Poland)- EU law applies directly and in case of a conflict takes precedence over a statute (the principle of the primacy of EU law)- the primary and secondary EU law + a favourable interpretation of Polish law with EU law

I.THE SOURCES OF LAW IN THE UNITED STATES:

1).US: Federal law:

Дата добавления: 2015-11-14