Constitutional and administrative law

a) Constitutional law is the body of law which defines the relationship of different entities within a state, namely

the executive. is the part of government that has sole authority and responsibility for the daily administration of the state. The executive branch executes the law.

the legislature. A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws, to raise or lower taxes and adopt the budget and other money bills (parliament and congress)

the judiciary. is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the "Supreme court" or "Constitutional court"), together with lower courts.

Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law or international rules and norms.

Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade,manufacturing, the environment, taxation, broadcasting, immigration and transport.

b)The rule of law is a legal maxim whereby governmental decisions are made by applying known legal principles. "Law should govern". Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law. the rule of law has been described as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings... everyone is for it but have contrasting convictions about what it is."

c) The Court system in various legal systems

Polish

• Supreme court (Sad Najwyzy)

• Common courts (principal – sad rajonowy, district – sad okrajowy)

• Military courts (civil, criminal, economic, labor, social insurance together with administrative)

• The supreme administrational court

• Constitutional tribunal

• Tribunal of the state (to check the responsibility of politicians that have immune for some crimes)

UK

• Magistrate and crown courts for appeal

• County and high courts for civil cases

USA

• The supreme courts

• The us courts of appeals

• 94 us district courts

• Us courts of special jurisdiction

• State courts

• Us bankruptcy courts

The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (called the Treaty of Lisbon or the Lisbon Treaty; initially known as the Reform Treaty) - it is a reform treaty, i.e. a treaty amending Treaties constituting the European Union: mainly the Treaty on the European Union, Treaty establishing the European Community and also the Treaty establishing the European Atomic Energy Treaty

THE MOST IMPORTANT EU REFORMS UNDER THE TREATY OF LISBON:

-European Union became a homogeneous international organisation and obtained a legal personality= it may now be a subject of rights and obligations + The EU now (as a whole) has a single legal personality- this strengthens the Union's negotiating power, makes its activities more effective on the world stage and a more visible partner for third countries and international organisations;

-the term “European Community” was replaced by the term “European Union”; the pillar structure was abolished (almost completely*)

*Under Treaty of Lisbon the pillar structure was abolished, however, there still exists next to the European Union (in a paralel way) the European Atomic Energy Community (Euroatom)à therefore, the European Union structure is still a reminiscence of the old „temple”à there used to be three pillars of the European Union (a so-called temple structure): First Pillar= the European Communities (economic union) handling economic, social and environmental policiesà the only pillar with a legal personality, consisting of the European Community (EC), the European Coal and Steel Community (ECSC, until its expiry in 2002), and the European Atomic Energy Community (EURATOM); Second Pillar= The Common Foreign and Security Policy (CFSP; political union) handling foreign policy and military matters; Third Pillar= Police and Judicial Co-operation in Criminal Matters (PJCC) brought together co-operation in the fight against crime. This pillar was originally named Justice and Home Affairs (JHA) (union of police and judiciary).

-Underlining the specific character of the Common Foreign and Security Policy and the area of Freedom, Security and Justice of the EUà Improving the life of Europeans: the Treaty of Lisbon improves the EU's ability to act in several policy areas of major priority for today's Union and its citizens. This is the case in particular for the policy areas of freedom, security and justice, such as combating terrorism or tackling crime. It also concerns to some extent other areas including energy policy, public health, civil protection, climate change, services of general interest, research, space, territorial cohesion, commercial policy, humanitarian aid, sport, tourism and administrative cooperation. Increased security for all: the Union gets an extended capacity to act on freedom, security and justice, which brings direct benefits in terms of the Union's ability to fight crime and terrorism. New provisions on civil protection, humanitarian aid and public health also aim at boosting the Union's ability to respond to threats to the security of European citizens.Europe as an actor on the global stage will be achieved by bringing together Europe's external policy tools, both when developing and deciding new policies. The Treaty of Lisbon gives Europe a clear voice in relations with its partners worldwide. It harnesses Europe's economic, humanitarian, political and diplomatic strengths to promote European interests and values worldwide, while respecting the particular interests of the Member States in Foreign Affairs.

-Confirmation of the qualified majority voting formula in the Councilà The increase of the number of the areas in which the Council takes decisions by qualified majority votingà Effective and efficient decision-making: qualified majority voting in the Council is extended to new policy areas to make decision-making faster and more efficient. From 2014 on, the calculation of qualified majority will be based on the double majority of Member States and people, thus representing the dual legitimacy of the Union. A double majority will be achieved when a decision is taken by 55% of the Member States representing at least 65% of the Union’s population.

-Enhancing protection of the fundamental rightsà A Europe of rights and values, freedom, solidarity and security, promoting the Union's values, introducing the Charter of Fundamental Rights into European primary law, providing for new solidarity mechanisms and ensuring better protection of European citizens. + The Treaty of Lisbon gives a legal status to the Charter of Fundamental Rights and makes a legal basis for the European Union’s accession to the European Convention for the protection of Human Rights and Fundamental Freedoms. + Democratic values: the Treaty of Lisbon details and reinforces the values and objectives on which the Union is built. These values aim to serve as a reference point for European citizens and to demonstrate what Europe has to offer its partners worldwide. Citizens' rights and Charter of Fundamental Rights: the Treaty of Lisbon preserves existing rights while introducing new ones. In particular, it guarantees the freedoms and principles set out in the Charter of Fundamental Rights and gives its provisions a binding legal force. It concerns civil, political, economic and social rights. Freedom of European citizens: the Treaty of Lisbon preserves and reinforces the "four freedoms" and the political, economic and social freedom of European citizens.

-Enhancing the role of the national parliamentsà A greater involvement of national parliaments: national parliaments have greater opportunities to be involved in the work of the EU, in particular thanks to a new mechanism to monitor that the Union only acts where results can be better attained at EU level (subsidiarity). Together with the strengthened role for the European Parliament, it will enhance democracy and increase legitimacy in the functioning of the Union.

A stronger voice for citizens: thanks to the Citizens' Initiative, one million citizens from a number of Member States have the possibility to call on the Commission to bring forward new policy proposals.

-The introduction of a team (group) Presidency in the Council of the EUà Presidency based on a drafted 18-month joint “team” programme for the three Member States holding Presidency successively- in rotation for a period of 6 months (from 1^st January until 30^th June and from 1^st July until 31^st December)à for the increase of the continuity in the Council’s work. The “trio of Presidency” is established on the basis of the Council Decision of 1^st January 2007 determining the order in which the office of President of the Council shall be held, e.g.: Poland- Denmark- Cyprus.

Law of contract.

A legally binding agreement that means there must be some kind of agreement between two parties. However, not all agreements are contracts because not all agreements are legally enforceable (means that a court will say that an agreement is a contract). To decide if an agreement is legally enforceable as a contract, a court will apply the rules and principles of the law of contract

Elements ( for ex for contracting between parties)

1. Offer and acceptance (An offer is a promise by the offeror to be bound in a contract on particular terms if there is a proper acceptance of the offer by the offeree. The following types of statement are not offers: statement of intention; supply of information; invitation to treat. Acceptance occurs when the party answering the offer agrees to the offer by way of a statement or an act. Acceptance must be unequivocal and communicated to the offeror: the law will not deem a person to have accepted an offer merely because they have not expressly rejected it.)

2. Intention to create legal relations (the parties entering into the contract must intend to create legal relations and must understand that the agreement can be enforced by law.)

3. Consideration (one party promises to do something in return for a promise from the other party to provide a benefit of value (the consideration)

Consideration is what each party gives to the other as the agreed price for the other's promises. Usually the consideration is the payment of money)

4. Legal capacity (The contracts of the groups of people listed below involve problematic consent, and are dealt with separately, as follows: people who have a mental impairment; young people (minors); bankrupts; corporations (people acting on behalf of a company); and prisoners.)

5. Consent (the consent of each of the parties to a contract must be genuine. Proper consent may be affected by any of the following matters: mistake; false statements; duress; and undue influence/unconscionability.)

6. Illegal and void contracts

Types

• Parol

• Simple

• Deeds are kind of contract which must always be in writing

• Valid contracts (These are agreements which are completely binding and enforceable. Parties to valid contracts gain rights and responsibilities. The courts will make sure that the parties follow these rights and responsibilities if there is any argument)

• Void contracts (have no legal effect) ex – deal to kill

• Voidable contracts (This kind of contract is valid unless one of the parties has it set aside. This could happen where one party is tricked into entering a contract by the other party) ex – tourism firm cheats

• Unenforceable contracts (These are agreements which are legal but which cannot be enforced in court for some reason) ex - a time limit for enforcing the contract may have expired

remedies for a breach of a contract (средства правовой защиты в случае нарушения договора)

A remedy is the relief provided for an innocent party when the other party has breached the contract. The five basic remedies for breach of contract include the following: money damages, restitution (Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of the contract), rescission, reformation (Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered), and specific performance (specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract).

Pacta sunt servanda - agreements must be kept.

Under English law, there is no generally applicable definition of “ good faith ” in performing contracts. It is clear from the authorities that the content of a duty of good faith is heavily conditioned by its context. There may be a core meaning of honesty but, put into context, the meaning of the phrase will call for further elaboration. Examples of different interpretations by the courts include: faithfulness to an agreed common purpose, acting within the spirit of the contract, observing reasonable commercial standards of fair dealing and acting consistently with the justified expectations of the parties. In a recent case, the Court of Appeal found an express obligation to co-operate in good faith meant the parties would work together honestly endeavouring to achieve the stated purposes expressly linked to the duty.

Finally, cases seem to suggest that lack of good faith entails bad faith. Whilst good faith has a core meaning of honesty, not all bad faith involves dishonesty. Bad faith conduct could include behaviour which is seen as commercially unacceptable, improper or unconscionable, but which is not actually dishonest.

So, a failure to act in good faith (or not to act in bad faith) does not necessarily require fraud or other dishonesty.

When drafting an express obligation to act in good faith, think about what this involves in the context of the contract. The drafting should be clear and precise, with no room for different interpretations – consider including a non-exclusive list of examples of “good faith” behavior.

Дата добавления: 2015-11-14