Week 1 – Introduction to Business Law
Explain the nature of law in our society
The purpose of laws in our society is as systematic set of rules to control our conduct. These rules are enforced by the courts. It also declares how we must behave.
Identify the different ways laws can be classified
The numbers of ways that law can be classified are:
International laws govern the conduct between nations, also applying to private individuals engaging in international transactions. Two main sources are: * Customary rules of international law
* Treaties and conventions (agreements)
International treaties and conventions are not part of domestic law unless they are expressed in legislation of the specific nation, in Australia that would be the Commonwealth. The ratification (recognition) of international treaties/conventions fall under the Commonwealth Constitution specifically under external affairs: s 51 (xxix)
Domestic or municipal laws originate from statute or case law. It regulates relations between people or organisations within the borders of a state or country. * Public/private
Public law deals with the organisation of government and its relationship with the people. Examples are administrative, constitutional, criminal, industrial and taxation. Private law deals with disputes between individuals or organisations. Examples are contract, commercial, torts, property and business entities. * Substantive/procedural
Substantive law is the actual rights and duties of individuals and organisations under the law. Whilst Procedural law is involved with the rules of evidence and the conduct of criminals and civil proceedings * Civil law/criminal law
The Common law system can be further broken down into civil and criminal law. Civil law is where an action brought by one individual/entity against another. As it emphasises on remedies the standard of proof required by the plaintiff is to prove the case on the balance of probabilities. Examples of civil law relating to businesses are contract, tort, property, business entities and trusts.
Criminal law deals with actions brought by the crown (state/R) against an accused individual and its emphasis is on punishment. In a criminal case the prosecution needs to prove the case beyond reasonable doubt. Examples of business criminals are extortion, embezzlement, larceny/theft, fraud and forgery.
Distinguish between the different types of legal systems
* Common law/civil law system
Common and Civil law are the two dominate legal systems in the western world. The Common law system is based on ‘judge-made law’, basically relying on previously decided cases (Precedent). On the other hand is the Civil law system (inquisitorial) originating from Roman law, where laws are co-created by judges.
Identify the different sources of Australian Law
Australia has adopted the English common law system, its main types of laws are: * Statute law
Statute law is created by the state and Federal Parliaments. It is also known as legislation, Acts of Parliament and enacted law. Statute law also encompasses laws made by other government bodies; this is known as delegated legislation. It takes form in by-laws, orders and rules and regulations. * Common law
Common law is created by the courts/reported decision of the judges. It is also known as case law, precedent and unenacted law. If there is a clash between statute law and common, statute law overrules. * Equity
Equity is a body of legal principles/rules developed by the Courts of Chancery (Courts of Equity) in England. It was developed as a result of the growing inflexibility and rigidity of the common courts. Hence England had two parallel court systems: courts that could only award money damages and courts of ‘equity’ that could issue a broader range of remedies. The two types of equitable remedies sought are: * Injunction – this is a court order directing a...
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