Procedural Law

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PROCEDURAL LAW

COMMON LAW AND EQUITY

THE COMMON LAW SYSTEM OF EARLY ENGLAND

- one who believes he has a legal claim brings a cause of action in court (vložitev tožbe, s katero se sproži pravda) - he is seeking some form of relief, remedy (zadoščenje)
- remedy is supposed to cure or satisfy his claim of harm or injury (terjatev za škodo ali poškodbo) - in the beginning only certain forms of action were recognized by the law courts - a claim had to fit one of recognized forms of action

- otherwise the claimant didn't succeed and no remedy was possible - to claimants who succeed, only limited remedies were available - only money damages (odškodnina, povračilo premoženjske škode) - no adequate remedy was available

- claimants were unable to have their cause of action heard or they couldn't get relief other than money damages - therefore they petitioned the king, who opened a new avenue of relief known as equity (pravičnost) - the king instituted the Court of Chancery (vrhovno sodišče), which decided cases according to equity and good conscience (pravičnost in dobra vest – pri nas dobra vera in poštenje) - there were two parallel paths to settle disputes (dve poti za reševanje sporov) - common law courts

- equity courts
- equity courts granted relief at their own discretion (zagotavljali so zadoščenje po lastnem preudarku) - equity courts were deciding cases according to general principles – maximes, not by use of legal precedens - equity regards the substance rather than the form

- equity will not suffer a wrong to be without a remedy
- he who seeks equity must do equity
- he who comes into equiti must come with clean hands
- the chancellor presiding the equity court was empowered to issue a decree (pooblaščen izdati odločbo), which ordered a defendant to do or refrain (storiti ali opustiti) some specific act - if a defendant didn't comply (podrediti se) whith that decree, he could be found in contempt od court (prezir sodišča), punishable by fine od imprisonment - the power of issuing a decree opened the possibility of several remedies - today the law and equity are merged, so that one court can administer both methods of dispute resolution

REMEDIES

- injunction (opomin): a party was ordered to do or refrain from doing some act - specific performance: a party was ordered to perform his side of a contract by transferring title to the buyer - reformation (preoblikovanje): it was ordered to repair od change contract language to better meet the intentions od the parties; this remedy it is used in situation od mutal mistake (vzajemne napake) - recission: the contract was invalidated under certain circumstances

COURT SYSTEM IN USA

FEDERAL COURT SYSTEM

- general or limided jurisdiction:
- US District Court: there are 94 judical districts within the USA, each state has several judical districts al the federal level

- first appeal:
- US Court of Appeals: there are 13 federal judical circuit or federal appelate circuits - courts od last resort:
- US Supreme Court: sits in capital city of USA, Washington D.C.

STATE COURT SYSTEM

- general or limided jurisdiction:
- County Court (okrajno): there are several counties in each state - Circuit Court (okrožno): there are several state judical circuits within each state - first appeal:
- District Court of Appeal: there are several state appelate districts in each state - courts od last resort:
- Supreme Court: sits in capital city of each state, it is not necessary that a State has a Supreme Court

COURT SYSTEM IN UK

CIVIL JURISDICTION

- County Court (okrajno sodiščče): this court jurisdiction includes contract or torts actions up to £5000, equity matters up to £30000 - High Court:
- Queen's Bench Division: trial of civil actions such as contracts, torts - Family Division: trial of matrimonial proceedings, acrions regarding...
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