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Профессиональный Документы
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Intellectual Property (IP) refers to the creations of the human minds for which exclusive
rights are recognized. Innovators, artistes and business owners are granted certain
exclusive rights to a variety of intangible assets for a specified duration.
IP is an intangible asset to a company. It gives business partners and financial
institutions the confidence to invest in or collaborate with the organization.
In addition to protecting their creation, business owners can maximize the value of their
IPs in many ways. They can franchise, license out or transact their IP.
It deals with copyright, trade mark, patents, registered design, etc.
Law of contract
It is a body of law that governs oral and written agreements and subjects, such as
agency relationships, commercial paper, employment, and business organizations.
Company Law
It is the set of laws that control how businesses are formed and managed. Company law
(or the law of business associations) is the field of law concerning companies and other
business organizations. This includes corporations, partnerships and other associations
which usually carry on some form of economic or charitable activity.
Land Law
Law of Tort
The law of tort is wide-ranging body of rights, obligations and remedies applied by the
courts in civil proceedings. It provides remedies relief for those who have suffered loss
or harm following the wrongful or negligent acts of others.
A tort is a civil wrong by the ‘tortfeasor’ that unfairly results in loss or harm to another.
This makes the tortfeasor liable to the other. Tort is distinguishable from two other
kinds of law – criminal law and contract law, and is dealt with by the civil courts.
Unlike tort, the criminal laws are wrongs against society and is comprised in legislation
and prosecuted by the authorities, and dealt with in the criminal courts. In contract law,
the rights and obligations between the contractual parties are governed by the contract
itself and not by the law of tort.
However, sometimes the line is blurred between tort, crime and contract law. For
instance, violent offences against the person such as assault and battery can be
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prosecuted by the Crown; and a damages claim can also be brought in the civil courts by
the victim.
Employment Law
Employment law covers all matters related to the workplace; whether you work in a
small firm or you are a cog in a big corporate wheel. Beginning with hiring, it moves
through a complete cycle which can end in cessation of employment, voluntary or
forced.
Equity essentially means fairness. Our legal system is based on these rules and this area
of law gave birth to the law of trusts.
Trust law is a set of rules that have been established to regulate situations where one
person places trust in another person to look after their affairs.
This includes the way that charities are run or the way that money left to somebody in a
will is governed.
Family Law
Family law disputes that are handled in the judicial system include: divorce, separation,
adoption, child custody, visitation rights, financial settlements and distribution of assets,
domestic violence, guardianship, and child abuse and neglect.
Other matters which are covered by this area of law include: validity of trusts, wills and
inheritance laws, deaths, pension, retirements and other benefits, and the coverage and
validity of insurance claims.
Criminal Law
Criminal law covers everything; from small misdemeanours, to big heinous crimes,
fraud and white-collar crime.
It can also involve international relations and multiple jurisdictional rules, particularly
concerning issues such as extradition, money-laundering, cross-border crimes and
terrorism.
Immigration Law
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The law of tort is wide-ranging body of rights, obligations and remedies applied by the
courts in civil proceedings. It provides remedies relief for those who have suffered loss
or harm following the wrongful or negligent acts of others.
A tort is a civil wrong by the ‘tortfeasor’ that unfairly results in loss or harm to another.
This makes the tortfeasor liable to the other. Tort is distinguishable from two other
kinds of law – criminal law and contract law, and is dealt with by the civil courts.
Unlike tort, the criminal law are wrongs against society and is comprised in legislation
and prosecuted by the authorities, and dealt with in the criminal courts. In contract law,
the rights and obligations between the contractual parties are governed by the contract
itself and not by the law of tort.
However, sometimes the line is blurred between tort, crime and contract law. For
instance, violent offences against the person such as assault and battery can be
prosecuted by the Crown; and a damages claim can also be brought in the civil courts by
the victim.
Parties to an action in tort
Anyone can sue in tort if they suffered harm or loss as a result of someone else’s civil
wrong. There is the potential for children to sue, including children who are born with
disabilities due to harm inflicted prior to birth; and even a husband and wife can sue
each other.
Claimants can sue a wide range of tortfeasor. The following are examples of different
types of individuals and other parties who can potentially face an action against them
under the law of tort:
Individuals
The Crown
Companies
Employers
Employees
Independent contractors
Occupiers of premises
Individuals who have caused damage to another’s reputation
Dangerous drivers
Individuals in the medical profession
Occupiers of recreational premises
What are the elements of the Law of Tort?
Negligence
Whilst there are different types of tort, negligence is by far the most common tort for
which claimants take legal action. There are four elements to the tort of negligence.
Each of these must be present for a claim to be successful:
1. The negligent party owed a duty of care to the victim.
2. There was a breach of the duty of care.
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3. Causation (the negligent caused the injury/loss).
4. Damage or injury occurred.
Duty of care
The defendant in a negligence action must have owed a legal duty of care to the
claimant. There is a three-stage test to establish whether there was a duty of care:
Is there a relationship of proximity between the parties?
Was the injury to the claimant foreseeable?
Is it fair, just and reasonable to impose a duty?
Breach of duty
For the tort of negligence to have occurred, the defendant must have breached the duty
of care legally imposed on them. The ‘reasonable man’ test is usually applied to
ascertain whether the duty of care has been breached. This is a objective test, and
considered whether the behaviour of the defendant fell below the threshold of a
“reasonable man”.
This will vary depending on the nature of the defendant. For instance, in a medical
negligence case following a surgical procedure, the ‘behaviour’ – ie. the skills – of a
specialist surgeon will be expected to be of a much higher standard than the skills of a
junior doctor assisting. However, inexperience of itself will not be a valid defence: the
defendant is expected to discharge his or her legal duty as a reasonably skilled and
competent person.
Causation
Once a breach of the legal duty of care has been established, it must be shown that the
loss, damage or personal injury was caused as a result, whether directly or indirectly.
The question is: but for the actions or omission of the defendant, would the loss or harm
have resulted?
Harm or injury
There must be some form of loss, damage or injury. This includes physical or mental
personal injuries; financial loss; or damage to property. It can also extend to emotional
distress or embarrassment.
Economic torts
Economic torts are defined as torts that have inflicted pure financial loss on someone. A
primary example of an economic tort is ‘passing off’ in the course of business, whereby
an individual or business attempts to pass off their goods as the goods of another –
relying on the substantial goodwill associated with the original product or goods. A
claim can be made for damages to compensate for the economic loss suffered.
Other claims in tort
Tortious claims also include nuisance, occupiers liability, defamation, trespass and
breach of confidence.
Remedies in tort
There are two key remedies available for claimants:
Damages
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Injunction
Damages
Damages provides financial compensation to the claimant for their losses. Damages can
be broken down into the following subcategories:
Nominal: where a tort has been committed but the victim has suffered no loss.
Contemptuous: where the claimant is successful but the court considers that it
should not have been brought and was without merit. A very small or derisory
amount of damages may be ordered in such cases.
General: to compensate for non economic damages such as pain and suffering
and emotional distress.
Special: the claimant must plead these damages as part of the action and prove
that the damage was in fact suffered. For instance, damage to property and
medical expenses.
Aggravated damages: if the court decides that the tort was committed in a
malicious manner, ie. to harm the claimant’s character or question his dignity,
then aggravated damages may be awarded.
Exemplary or punitive damages: these may be awarded when the court finds that
the action committed by the defendant is so serious that an example needs to be
made of them.
Injunctions
In some cases, it may be appropriate to apply to the court for an injunction. An
injunction is a court order prohibiting or requiring a certain course of action to be taken.
This can be in addition to a damages claim.
Defences
The following are defences to tort actions:
Vicarious liability
Contributory negligence
Volenti non fit injuria
Vicarious liability
Where a tort was committed by an employee while undertaking his or her duties of
employment, i.e. there was a close and direct connection with the harmful act
committed by the employee and what they were employed to do, the employee can deny
liability and claim that the employer was vicariously liable.
Contributory negligence
This is a partial defence used whereby the claimant is accused of acting in a careless
manner at the relevant time, and therefore contributed to the injuries or loss which they
have suffered.
Volenti non fit injuria
Volenti non fit injuria effectively means ‘consent’. It means that the claimant cannot
complain about what has happened on the basis he voluntary assumed the risk, ie. he
has consented to the conduct (which otherwise would have amounted to a tort). For this
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defence to stand, it must be proved that the plaintiff acted voluntarily with the other’s
agreement, and it was made in full knowledge of the nature and extent of the risk
involved.
If you have suffered harm or loss as a result of someone else’s wrongdoing, take
specialist legal advice as soon as possible.
Civil law deals with disputes between private parties, or negligent acts that
cause harm to others . For example, if individuals or companies disagree over
the terms of an agreement, or who owns land or buildings, or whether a person
was wrongfully dismissed from their employment, they may file a lawsuit asking
the courts to decide who is right. As well, the failure to exercise the degree of
caution that an ordinarily prudent person would take in any situation may result
in a negligence claim. Depending on the circumstances, a person may be held
responsible for any damages or injury that occurs as a result of their
negligence. Family law cases involving divorce, parental responsibility for
children, spousal support, child support and division of property between
spouses or common law couples represent a large portion of the civil law cases
presented to the courts. Challenges to decisions of administrative tribunals,
allegations of medical malpractice and applications for distribution of the estates
of deceased persons are other examples of civil cases. The party who brings
the legal action is known as the plaintiff or applicant, while the party being sued
is the defendant or respondent. The courts may dismiss a case, or if it is found
to have merit, the courts may order the losing party to take corrective action,
although the usual outcome is an order to pay damages - a monetary award
designed to make up for the harm inflicted. The state plays no role in civil
cases, unless the government launches a lawsuit or is the party being sued.
Parties retain a lawyer - or may choose to represent themselves - to gather
evidence and present the case in court.
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Differing standards of proof: More evidence is needed to find the accused at
fault in criminal cases than to find the defendant at fault in civil ones. To convict
someone of a crime, the prosecution must show there is proof beyond a
reasonable doubt that the person committed the crime and, in most cases, that
they intended to commit it. Judges and juries cannot convict someone they
believe probably committed the crime or likely is guilty - they must be almost
certain. This gives the accused the benefit of any reasonable doubt and makes
it less likely an innocent person will be wrongfully convicted and imprisoned.
Civil cases, in contrast, must be proven on a balance of probabilities - if it is
more likely than not that the defendant caused harm or loss, a court can uphold
a civil claim.
In a civil case, the objective is to make the wrongdoer provide restitution for what
he or she has done. The individual isn't punished personally. Rather, they're
compelled to repair or provide compensation for what's been done.
In a criminal case, the objective is to punish the individual. The prosecutor will
attempt to sentence the wrongdoer in a way that will personally punish him or her
and satisfy the public's sense of wrongdoing. Criminal defendants are punished
with incarceration, fines, or, in extreme cases, the death penalty.
The state carries the burden of proving the case when you're dealing with criminal
law. The defendant is assumed innocent and doesn't have to prove anything. The
burden of proof is much heavier in a criminal case. The state must prove the
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defendant's guilt beyond a reasonable doubt, which is often taken to mean 98 to 99
percent certainty.
TYPES OF CASES
While there are many charges that one can face in a civil or criminal case, a quick
overview of some of the more common cases will give you a better idea of what
you'll find in each classification.
Assault
Theft
Robbery
Murder
Regardless of the type of case you're dealing with, it's important to secure the
services of an attorney. Lawyers specialize in a particular type of case, so
determine what you're facing and get a civil or criminal attorney on your side to
help you with the next steps in the process.
Here are some of the key differences between a criminal case and a civil case:
Although criminal and civil cases are treated very differently, many people often
fail to recognize that the same conduct can result in both criminal and civil
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liability. Perhaps one of the most famous examples of this is the OJ Simpson
trial. The same conduct led to a murder trial (criminal) and a wrongful death trial
(civil). In part because of the different standards of proof, there was not enough
evidence for a jury to decide that OJ Simpson was guilty "beyond a reasonable
doubt" in the criminal murder case. In the civil trial, however, the jury found
enough evidence to conclude that OJ Simpson wrongfully caused his wife's
death by a "preponderance of the evidence".
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UK PARLIAMENT (activity)
GLOSSARY
Committees: A large part of the work of the House of Commons and the House
of Lords takes place in committees, made up of MPs or Lords. These
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committees consider policy issues, scrutinise the work and expenditure of the
government, and examine proposals for primary and secondary legislation.
Select committees (see below) operate largely by an investigative process,
while legislative committees operate mainly by debate.
Select Committees work in both Houses. They check and report on areas
ranging from the work of government departments to economic affairs. The
results of these inquiries are public and many require a response from the
government.
Joint Committees are committees consisting of MPs and Members of the Lords.
They have similar powers to other Select Committees. Some are set up on a
permanent basis, like the Joint Committee on Human Rights. Other
appointments are for specific purposes, such as examining draft proposals for
Bills on subjects ranging from modern slavery to stem cell research.
Deputy speakers: In the House of Commons there are three Deputy Speakers
who are elected by MPs to assist the Speaker in chairing debates in the
Chamber and to perform a range of other duties. Like the Speaker they must be
politically impartial.
Dissolution: Dissolution is the official term for the end of a Parliament before a
general election. When Parliament is dissolved every seat in the House of
Commons becomes vacant. MPs immediately revert to being members of the
general public and those who wish to become MPs again must stand for
election as candidates.
Division lobbies: Division lobbies are the corridors that run along either side of
the Chamber in both Houses. They are used to record the votes of members
when there is a division. In the House of Commons the division lobbies are
called the Aye Lobby and the No Lobby. In the House of Lords they are known
as the Content Lobby and the Not Content Lobby.
Divisions: Divisions are used for counting those in favour or against a motion
when there is a vote in the House of Commons or the House of Lords. The
House literally divides, with members choosing to file through one of two lobbies
on either side of the Chamber where they are counted and their names
recorded.
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Financial privilege: Financial privilege refers to the special right of the House
of Commons to decide public taxes and public spending. It may be used by the
Commons as grounds for overruling any House of Lords proposal that has cost
implications.
Ballot papers are then counted and the candidate that has received the most
votes is elected to represent the constituency or ward.
General elections: A general election is when the voters of the country cast
their votes to elect Members of Parliament (MPs) to the House of Commons.
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In a situation of no overall control the Government in power before the General
Election gets the first chance at creating a government. If they cannot do so, the
Prime Minister will resign.
The Prime Minister only has to resign if it is clear that they cannot command a
majority of the House of Commons on votes of confidence or supply. This would
be the case if the incumbent government fails to make a deal with one or more
of the other parties, or if they lose a confidence motion in the House of
Commons. The first parliamentary test would be the vote on any amendment to
the Queen’s Speech.
Leader of the House: The Leader of the House of Commons is the member of
the Government who is responsible for organising government business in the
Commons. The Leader of the House makes a weekly statement announcing the
business for the week ahead.
The Leader of the House of Lords is responsible for looking after the
organisation of government business and procedure in the House of Lords. He
or she is appointed by the Prime Minister and is a member of the Cabinet. Since
the Lord Speaker has no powers to rule on matters of procedure, the Leader
advises the House on matters of procedure and order. The Leader also
expresses the feelings of the House on formal occasions, such as motions of
thanks or congratulation. The Leader and his or her private office are also
available to assist and advise all Lords, irrespective of party.
Ministers: Ministers are the MPs and members of the House of Lords who are
in the Government. They are appointed by the Prime Minister and each given a
specific area of government policy to oversee. Ministers speak on behalf of the
Government from the frontbenches during parliamentary debates and must
answer questions put to them by other MPs or members of the House of Lords.
Money Bill: A Money Bill (or Supply Bill) is a Bill that in the Speaker's opinion is
concerned only with national taxation, public money or loans. A Bill that is
certified as a Money Bill and which has been passed by the Commons will
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become law after one month, with or without the approval of the House of
Lords, under the terms of the Parliament Acts.
Peers: A Peer is a member of the House of Lords. Most members are Life
Peers although 92 sit by virtue of hereditary title. Life Peers are appointed by
the monarch on the advice of the Prime Minister to serve for their life; the title is
not transferable.
Prime Minister: The Prime Minister is the leader of the Government. He or she
is the leader of the party that wins the most seats at a general election. After a
general election the monarch calls upon the leader of the largest party to form
the Government. The Prime Minister chooses the other Members of the
Government and has a residence and offices at 10 Downing Street.
Queen’s Speech: The Queen's Speech is the speech that the Queen reads out
in the Lords Chamber on the occasion of the State Opening of Parliament. It
sets out the programme of legislation that the Government intend to pursue in
the forthcoming parliamentary session.
The State Opening of Parliament marks the formal start of the parliamentary
year and the Queen's Speech sets out the government’s agenda for the coming
session, outlining proposed policies and legislation. It is the only regular
occasion when the three constituent parts of Parliament – the Sovereign, the
House of Lords and the House of Commons – meet.
When the Queen leaves, a new parliamentary session starts and Parliament
gets back to work. Members of both Houses debate the content of the speech
and agree an ‘Address in Reply to Her Majesty’s Gracious Speech’. Each
House continues the debate over the planned legislative programme for several
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days, looking at different subject areas. The Queen's Speech is voted on by the
Commons, but no vote is taken in the Lords.
One of Parliament's main roles is to examine and challenge the work of the
government. The House of Commons and the House of Lords use similar
methods of scrutiny, although the procedures vary.
The principal methods are questioning government ministers, debating and the
investigative work of committees. The government can publicly respond to
explain and justify policies and decisions.
Sitting: A sitting is a meeting of either House at the end of which the House
adjourns. A sitting is also used as a term for a meeting of a committee. You can
see when either House is sitting and the business to be considered on the
Parliamentary Calendar.
Speaker: The Speaker is an MP who has been elected by other MPs to act as
Chair during debates in the House of Commons. They are responsible for
ensuring that the rules are observed and order is maintained in the Chamber.
When a Speaker is elected they cease to be involved in party politics and
become politically impartial.
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Summoning: to order the MPs and Lords to convene, to start a new
Parliament.
Wash-up: The wash-up period refers to the last few days of a Parliament
before dissolution. Any unfinished business is lost at dissolution and the
Government may need the co-operation of the Opposition in passing legislation
that is still in progress.
Whips: Whips are MPs or members of the House of Lords appointed by each
party to inform and organise their own members in Parliament. One of their
responsibilities is to make sure that their members vote in divisions, and vote in
line with party policy. It is the party whips, along with the Leader and Shadow
Leaders of each House, that negotiate behind the scenes to arrange the day to
day business in Parliament - a process often referred to as 'the usual channels'.
The Chief Whip of a party is a senior position and they are usually involved in
top-level party discussions.
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The Government are the people we have elected to run the country. The
political party that wins the most seats at a General Election takes charge of the
Government for five years, until the next General Election.
The leader of the winning party is appointed as Prime Minister and chooses
other party members to work in the Government with them - as Cabinet
ministers and junior ministers.
What is Parliament?
Parliament is there to represent our interests and make sure they are taken into
account by the Government. The Government cannot make new laws or raise
new taxes without Parliament’s agreement.
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Parliament is made up of people we have elected and people who have been
appointed. They sit in two separate Houses:
The House of Commons, where all the people we have elected at the
General Election work, as MPs, for the next five years. This includes
people in other political parties, as well as those in the winning party who
were not chosen to be ministers.
The House of Lords, whose members are mostly appointed for life rather
than elected. They have often been chosen because of their
achievements and experience. Many do not belong to a political party.
Government ministers also have seats in Parliament but most of their work is
done in Government departments
The Government is responsible for deciding how the country is run and for
managing things, day to day. They set taxes, choose what to spend public
money on and decide how best to deliver public services, such as:
Parliament’s job is to look closely at the Government’s plans and to monitor the
way they are running things.
Parliament works on our behalf to try to make sure that Government decisions
are:
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Members of both Houses of Parliament can speak up for us if a government
department or agency treats us unfairly.
The Opposition works in Parliament. After a General Election, the largest non-
government party in the House of Commons becomes the Official Opposition.
The Leader of the Opposition takes the lead role in questioning the Prime
Minister when they come to Parliament.
The Leader of the Opposition chooses a team – known as the Shadow Cabinet
– who take the lead in questioning other Government ministers when they come
to Parliament..
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