Research Articles Base: Law Essay Sample

Judges Updating Law – Consistent with Binding Precedent?

Judges Updating Law – Consistent with Binding Precedent? “Now it is the function of the judges, I believe, to bring law up to date with the expectations and needs of our society.” – High Court Justice Lionel Murphy addressing the National Press Club 1980   Introduction Law is one imperative process wherein a single society can move freely without doubts since, law is to abide its statutes in order not to violate one’s freedom of speech and expression and that laws are to be followed and to avoid innocence of something important in life.   Law is at the core of fairness and equality among people and among society, activities which hold legal sanctions are effectively manifested within authoritative power and influence of judges, who decides cases at front lines. The Australian legal system and constitution labeling is strict when it comes to standards and norms wherein binding precedents come into the picture. Law is updating and changing several assumptions and specifications according to recent court laws and such amendments prior to judges’ function of keeping Australian law and legal system on a better strike and matter. Discussion According to several proponents, it is amiably a judge function to keep law alive and not stagnant to the end, updating to hear both sides of the story and never judge without due process, when law updates are striking deep, it is important to always be substantive to the rights of people as it is not so easy to always conform to protection of individual rights, fighting for truth and justice, thus giving Australian people imperative voice in the legal system. Judges functions are at top line of such binding precedents as true and real that, one of the primary roles of judges is to protect the rights of individuals who come before them, demonstrating commitment to goodwill of law and its creative purpose. Thus, Australian judge mission was to seek truth, to prove this truth to high courts and to ask the Australian Constitution to fashion the measured and appropriate sentence, delivering justice for example criminal justice system can only make city safer in lasting way if judges are holding the government to its burden of proof and issuing sentences that comport with society’s notions of fairness.  Binding precedent can possibly be enacted by a judge must be followed as well as being set when lower courts are bound to follow the decisions of higher courts in the same hierarchy, where the facts of the case are similar. - Cornerstones of Australian Law, Chapter 4  Aside, binding precedent stature does imply to ratio decedent from court of record upon creation of binding precedent and there only binds courts in the same hierarchy and such position of court of record in the court hierarchy determines whether the ratio is binding or not such examples from NSW, Old Court of Appeal decisions bind Supreme Courts. - Cornerstones of Australian Law, Chapter 4 Moreover, “strict view of doctrine of precedent claim that the consistency, continuity and predictability resulting from adherence to binding precedent is essential to the maintenance of public confidence in the law and the efficient discharge by the judiciary of its functions, performed in lawful and predictable manner. On the other hand, Justice Lionel Murphy saw risk of serious injustice in too rigid an adherence to precedent, he even went so far as to suggest that it was an approach “eminently suitable for nation overwhelmingly populated by sheep”. - LK Murphy, “The Responsibility of Judges”, opening address for the First national Conference of Labor Lawyers, 29 June 1979, in G Evans (ed) Law Politics and the Labor Movement, Legal Service Bulletin, 1980 Clayton Victoria. Indeed, doctrine of precedent still continues to play an important role in the Australian legal system. In many, perhaps most, cases, particularly those decided in trial and intermediate courts, the identification and application of binding rule of legal precedent will ordinarily be decisive where a statute is not. - K M Hayne, “Letting Justice be Done Without the Heavens Falling”, (2001) 27 Monash University Law Review 12 at 17 cited from AUSTRALIAN BAR REVIEW PRECEDENT LAW, PRACTICE & TRENDS IN AUSTRALIA The Hon Justice Michael Kirby AC CMG pp. 1-22   There have been changes in the use of precedent in Australia over the past two decades. My purpose has been to describe the most important of these changes. Lawyers of the civil law tradition, and some common law practitioners, sometimes regard the discursive style of reasoning of common law courts as messy, imprecise and unfocused; the presence of dissenting opinions as destabilizing to the authority of the law; and the doctrine of precedent as obscure in practice and seemingly optional in application, at least in the higher courts. - SD Smith, Law’s Quandary (Harvard, 2004) at 55, cited from AUSTRALIAN BAR REVIEW PRECEDENT LAW, PRACTICE & TRENDS IN AUSTRALIA The Hon Justice Michael Kirby AC CMG pp. 1-22   Thus, it may not be obvious what such case decides because variety of issues were considered in the case or there was disagreement among the judges and it is necessary to determine which judges were in the majority. The judges’ words may be ambiguous or context-specific, and so you are required to interpret them very carefully. Furthermore, empowering communities has been product of winning individual cases against nuisance properties and as updated law come in, judges must thoughtfully work to give Australian community real voice into the legal system as for example, through education and by making the courthouse place where citizens feel welcome, safe as well as respected in doing so require command of substantive law, rules of evidence and procedure, dynamics of adversarial process. Australian legal system needs to strengthen its approach to probation and parole, small percentage of criminals committing most of crime, clearly need to do a better job of rehabilitating offenders, judges need to strictly supervise probation, and ensure that each offender receives the drug treatment, job training, education and mentoring from the community that he or she needs to get back on the right track. Australian based judges to better understand the communities in which incidents occur and prevent cases from being postponed or thrown out where police officer witnesses are required to testify in multiple courtrooms at the same time. The need to modify the way judges are selected as high number of candidates in any given cycle relative to the number of vacancies, because there is usually a dearth of public information available to the voters regarding the credentials of the candidates, factors such as ballot position and money tend to predominate the election process. Opening the courtroom to the public and the media serves many important purpose, promote truthfulness from witnesses, it educates our citizens and helps give them faith that the system is working, and it encourages judges and attorneys to conduct them ethically and professionally.  Conclusion The judge must carefully consider the condition of the child and the alleged facts of a case and determine whether the need to protect the child and encourage his truthful testimony outweighs the benefits of an open trial. In exceptional cases, closing the courtroom will be warranted. Judges exercise judicial power, play integral role in the judicial process, as they apply the law and in some cases create the law and must take consideration of current political, social, moral and economic considerations and adhere to certain consensus of society. Then, judge seek relevant legislation and statutes, looks upon the constitution if required and seeks precedent in order to maintain the law as it stands. Maintaining judicial independence requires applying the law to the facts in every case and allowing no other factor to play  role in one’s decision. Therefore, judge must always decide cases based only on the law and evidence, he must also do more, to allow the public and the media to access the courtroom to the extent permitted by law, barring truly exceptional circumstances, would not allow public criticism of unpopular decisions, fear thereof to influence future outcomes. Judges must remember that independence from the other branches of government duty to strike down unconstitutional acts of branches, is what helps make Australia legal system unique. References Cornerstones of Australian Law, Chapter 4 K M Hayne, “Letting Justice be Done Without the Heavens Falling”, (2001) 27 Monash University Law Review 12 at 17 cited from AUSTRALIAN BAR REVIEW PRECEDENT LAW, PRACTICE & TRENDS IN AUSTRALIA The Hon Justice Michael Kirby AC CMG pp. 1-22 LK Murphy, “The Responsibility of Judges”, opening address for the First national Conference of Labor Lawyers, 29 June 1979, in G Evans (ed) Law Politics and the Labor Movement, Legal Service Bulletin, 1980 Clayton Victoria. SD Smith, Law’s Quandary (Harvard, 2004) at 55, cited from AUSTRALIAN BAR REVIEW PRECEDENT LAW, PRACTICE & TRENDS IN AUSTRALIA The Hon Justice Michael Kirby AC CMG pp. 1-22     Credit:ivythesis.typepad.com

Judges Updating Law – Consistent with Binding Precedent?

Judges Updating Law – Consistent with Binding Precedent? “Now it is the function of the judges, I believe, to bring law up to date with t...

Essay on Banking Regulations

[1]Bank regulations are a form of government regulation which subject banks to certain requirements, restrictions and guidelines.             The objectives of bank regulation, and the emphasis, vary between jurisdictions. The most common objectives are prudential, systemic risk reduction, avoidance of misuse of banks, protecting banking confidentiality and credit allocation.             In the prudential aspect of banking regulation, it is to reduce the level of exposure of the bank creditors. While in Systemic risk reduction, it is for the purpose of  reducing the risk of disruption resulting from adverse trading conditions for banks causing multiple or major bank failure.             In the process of avoiding the misuse of banks, one main purpose was to avoid laundering the proceeds of a certain crime.             With regards to credit allocation — it is to direct credit to favored sectors and to avoid misappropriations of the credit being used.             Banking regulations can vary widely across nations and jurisdictions. But in general, these set principles of bank regulation are being used by most banks throughout the world such as minimum requirement, supervisory review, and market discipline.             Minimum requirements are imposed on banks in order to promote the objectives of the regulator. The most important minimum requirement in banking regulation is maintaining minimum capital ratios. If this minimum requirement has been already used up, certain percentage will be imposed upon the account of the depositor.             Banks are required to be issued with a bank license by the regulator in order to carry on business as a bank, and the regulator supervises licensed review of banks for compliance with the requirements and responds to breaches of the requirements through obtaining undertakings, giving directions, imposing penalties or revoking the bank’s license.             The regulator requires banks to publicly disclose financial and other information, and depositors and other creditors are able to use this information to assess the level of risk and to make investment decisions. As a result of this, the bank is subject to market discipline and the regulator can also use market pricing information as an indicator of the bank’s financial health.             There are certain instruments and requirements of bank regulations; there is what we call Capital requirement. The capital requirement sets a framework on how banks must handle their capital in relation to their assets. Internationally, the Bank for International Settlements’ Basel Committee on Banking Supervision influences each country’s capital requirements. In 1988, the Committee decided to introduce a capital measurement system commonly referred to as the Basel Capital Accords. The latest capital adequacy framework is commonly known as Basel III. This updated framework is intended to be more risk sensitive than the original one, but is also a lot more complex.             Another instrument and requirement of bank regulations is the Reserve requirement. The reserve requirement sets the minimum reserves each bank must hold to demand deposits and banknotes. This type of regulation has lost the role it once had, as the emphasis has moved toward capital adequacy, and in many countries there is no minimum reserve ratio. The purpose of minimum reserve ratios is liquidity rather than safety. An example of a country with a contemporary minimum reserve ratio is Hong Kong, where banks are required to maintain 25% of their liabilities that are due on demand or within 1 month as qualifying liquefiable assets. Reserve requirements have also been used in the past to control the stock of banknotes and/or bank deposits. Required reserves have at times been gold coin, central bank banknotes or deposits, and foreign currency.             Instrument and requirement of bank regulations also includes Corporate governance requirements are intended to encourage the bank to be well managed, and is an indirect way of achieving other objectives. Requirements may include: 1.   To be a body corporate (i.e. not an individual, a partnership, trust or other unincorporated entity) 2.   To be incorporated locally, and/or to be incorporated under as a particular type of body corporate, rather than being incorporated in a foreign jurisdiction. 3.   To have a minimum number of directors 4.   To have an organizational structure that includes various offices and officers, e.g. corporate secretary, treasurer/CFO, auditor, Asset Liability Management Committee, Privacy Officer etc. Also the officers for those offices may need to be approved persons, or from an approved class of persons. 5.   To have a constitution or articles of association that is approved, or contains or does not contain particular clauses, e.g. clauses that enable directors to act other than in the best interests of the company (e.g. in the interests of a parent company) may not be allowed. Banks may be required to: 1.   Prepare annual financial statements according to a financial reporting standard, have them audited, and to register or publish them 2.   Prepare more frequent financial disclosures, e.g. Quarterly Disclosure Statements 3.   Have directors of the bank attest to the accuracy of such financial disclosures 4.   Prepare and have registered prospectuses detailing the terms of securities it issues (e.g. deposits), and the relevant facts that will enable investors to better assess the level and type of financial risks in investing in those securities.             Banks may be required to obtain and maintain a current credit rating from an approved credit rating agency, and to disclose it to investors and prospective investors. Also, banks may be required to maintain a minimum credit rating.             Most of the banks may be restricted from having imprudently large exposures to individual counterparties or groups of connected counterparties. This may be expressed as a proportion of the bank’s assets or equity, and different limits may apply depending on the security held and/or the credit rating of the counterparty.             [2]A capital market is a market for securities (debt or equity), where business enterprises (companies) and governments can raise long-term funds. It is defined as a market in which money is provided for periods longer than a year,[1][dead link] as the raising of short-term funds takes place on other markets (e.g., the money market). The capital market includes the stock market (equity securities) and the bond market (debt). Financial regulators, such as the UK’s Financial Services Authority (FSA) or the U.S. Securities and Exchange Commission (SEC), oversee the capital markets in their designated jurisdictions to ensure that investors are protected against fraud, among other duties.             Capital markets may be classified as primary markets and secondary markets. In primary markets, new stock or bond issues are sold to investors via a mechanism known as underwriting. In the secondary markets, existing securities are sold and bought among investors or traders, usually on a securities exchange, over-the-counter, or elsewhere.             Banks is where people and companies entrusts their money. If the banks won’t follow a certain regulation, and abide by the local banking law, do you think they still deserve the trust that the public is giving them? 	 	 [1] http://en.wikipedia.org/wiki/Banking_law [2] http://en.wikipedia.org/wiki/Capital_market Credit:ivythesis.typepad.com

Essay on Banking Regulations

[1] Bank regulations are a form of government regulation which subject banks to certain requirements, restrictions and guidelines. ...

Broadcast Regulation in Nigeria: A Study of the Activities of the National Broadcasting Commission 1992-2007

BROADCAST REGULATION CONSTRAINT IN NIGERIA (1992 to 2007)         Political, Social and Religious conflicts and violence in Nigeria are widespread, not to exaggerate but it is almost always a part of their culture and this culture affects various laws. No country ever wanted a continuous battle in their institution and this has been the reason why even the power of the media broadcast regulation has been amended to constraint not to lessen or threaten the power of the media but to eliminate the widespread conflict in their long history of violence. If you want to read the complete broadcast regulations in Nigeria please visit this website; http://www.nigeria-law.org/National%20Broadcasting%20Commission%20Decree%201992.htm       Upon reading the broadcast regulation commission you can easily understand and notice that there is such law that dictates to discharge the functions of such broadcast and their license will be null and void upon this violation for example as a part of National Broadcasting Commission Decree No. 38 year of 1992 that; the law of broadcast regulation section 10. It says that such a person will be disqualified from the grant of its license to a religious organization or a political party. This law however, upon noticing is awkward to other countries that there should be freedom of expression and it is the broadcast media that has been violated.       But in the case of Nigeria the government has made such law in order to protect its people so that such conflict of political, social, economic and religious struggle will not worsen in their country and such participation in media will definitely create a more conflicting ideology upon granting their permission and this will definitely intensify the division of their people and their belief. Violence is broadly exercised in this country in terms of brutality and torture is extreme to the extent of homicide as written widely almost every day or every week in their magazine and daily newspaper.       The political and socio economic influence of the society is observed all throughout the community during the past few years and this continuous to become the country’s struggle that determines the causes to re enact such provision and amendment of such law to deregulate the broadcast of partisan in all part of media broadcasting in Nigeria. TV, Radio, Newsprint etc. The Nigerian Government must promote firstly to advocate cooperation and unity among its people and organization before allowing such ideas to allow the broadcast of political and religious party but this is almost next to impossible since political, social and religious division it is a part of their culture.       In 1993 there has been a presidential election that has been dissolved due to ethno-religious and political dissatisfaction in its result and organization and groups of elite versus the ethnics and others parties have created an intolerable adversity or civil war that again threatened the national existence of freedom of expression in broadcasting. This results in various conflicts and ignites a series of rebellion and violence that causes another turmoil and deterioration of faith against its people to believe in the system of the government especially within the police forces.       Another debilitating reason for the freedom of expressions seems to be the religious conflicts that should have been the reason of unity have somehow risen as less value and moral to its people and in order to divide and control such violence the government once again has closed down their rights to speak about religion in media. The choice of Islam and Christianity and other small groups of religion has been practiced in this country that even more intensify the conflicts of division of the people and their stronghold to strengthen and depend their own conflicting rights that only their belief must survive. This ideology is absurd and inhuman that result in massive killing and threatening each other not to give way against each other’s faith.       The colonial mentality of the people during the British era has influenced the people of Nigeria to Secularity and Multi-religious and political society and this has divided the people of Nigeria that even in the Political participation there exist and overlap the threats of religious participation of what forms of religious participation should be encourage in their system and once again this conflicts the broadcast regulation in media in order to preserve control against its peoples belief and so as not to demoralize the other secularities that can even threaten the country. With due respect, the elite group can have a strong political control against the minority they have also created a division in economic symbol that the elite are more powerful and have the rights to use the land and all its power to drive away poor people within their community.       They also humiliated and violated their rights against the authority and government rules only to show their power. This is a part of communal clashes that has been recorded in their history. A recent study of African Governance Monitoring and Advocacy Project (AfriMap) in 2008 shows that 91% the media and the citizen of Nigeria wanted to exercise the freedom of expression in broadcast regulation so they can exercise their rights in all participation in the society. As of 2008 licenses have been approved to view and expand multi-religious society and political policy in broadcast media. The National Broadcasting Commission (NBC) calls it a miracle. Credit:ivythesis.typepad.com

Broadcast Regulation in Nigeria: A Study of the Activities of the National Broadcasting Commission 1992-2007

BROADCAST REGULATION CONSTRAINT IN NIGERIA (1992 to 2007) Political, Social and Religious conflicts and violence in Nigeria ar...

Corporate manslaughter law

Question 2   Introduction Corporate manslaughter law is evident before and as of the present times coming from such law reformation as presented in the year 2007, most recent accounts are shown. Defining and knowing corporate manslaughter as well as such aspects and processes of certain law pertaining to it. To assume considerations why such corporate manslaughter law reform will be necessary also, the need to recognize and understand the law reforms in terms of the outline, to be presented in the discussion section of this paper. In addition, to be able to place an effective conclusion of the necessary law reform focusing corporate manslaughter with reflections on corporate homicide act of the year 2007. Wells (2001, p. 1), have indicated that “criminal law has evolved around the central theme of individual liability and takes an individualistic approach to any crime elements”.  Thus, a company could not be convicted for any criminal offence, as there could be no vicarious criminal responsibility engaging one person as not to be deemed guilty of corporate manslaughter offence as committed although, statutory exceptions to the vicarious responsibility principle led also to statutory exceptions to the principle against the criminal responsibility of corporations wherein corporation had failed to carry out statutory duty creating common law reform (Yarosky 1964; Leigh 1969; Fisse 1967; Welsh 1946). Henceforth, it is now clear from studies of corporate criminality that unacceptable behavior may outcome from the failures of company as an organization (Field and Jorg 1991). However, the desire in reform efforts of the assumption does require that the company have defense of due diligence even though fault can be identified with the company, the controlling of employee acts for the benefit of the company. As quoted, “the common law because of the emergence of corporations in modern times does not make appropriate provision for the criminal liability of corporations further, change required in the law to accommodate development is of dimensions that legislative action, rather than reliance on evolution of law reform as required” (Gibbs 1990, p. 305). In considering the desirable scope of reforms to corporate criminal liability, it is necessary, given the immense variety and wealth of views on the subject, to take a step back and examine why it is that it might be argued that imposing criminal liability on a company, as distinct from the individuals which comprise it, is a defensible measure of criminal and social policy for instance, exposing policy questions and the issues in an interesting way, question of possible liability of company for unlawful manslaughter, the mandatory penalty was either death or life imprisonment and neither penalty applied to a company (Goode, 1975 p. 5 in, Murray Wright Ltd [1970] NZLR 476).  Today, there have been accepted that company can be found guilty of homicide if an appropriate penalty is available (Clark 1979; Corns 1991; Coment 1984; Edelman 1987; Spurgeon and Fagan 1981; Stone 1985; Wells 1988), there remains whether the company should be liable for conviction for unlawful homicide, although it is now legally possible to prosecute corporate employers for manslaughter, as not being taken.     Discussion   There failed corporate manslaughter prosecutions are examples of a litany of failures to prosecute successfully using manslaughter law following industrial deaths, have indicated to some that corporate actors are immune to or above criminal law. Thus, presence of issues as there has been inadequacy of present law stems from the identification doctrine and its practical application following industrial deaths. These failed convictions and the failure to prosecute is widely discussed in academic literature and form the basis of many calls for corporate manslaughter law reform. Without the duty of care on behalf of the directing mind of a corporation the prosecution of any individual for gross negligent manslaughter and for this reason also the company for corporate manslaughter collapses (Appleby, 2003). For one, the legislation aims to ensure that, “companies and other organizations are held properly to account for gross failings by their senior management, which have fatal consequences”, providing in new tests of corporate liability for manslaughter like the focuses on management failure into the senior level within the company organization.   Why has reform been considered necessary?   The manslaughter law reform are necessarily considered as there can be unclear provision of corporate manslaughter from the old law as from the past certain outcome of ineffective prosecutions of individuals concerning work related accidents are unclearly stated and acknowledged phasing in without serious crime investigations and also, lawful authorities did face several insufficient facts and evidences of corporate manslaughter thus, showing ample need of major reform into the law system. According to Petkov (2008 pp. 1-3) reported that the “old law has not been showing mercy to small firms as they are the ones which directors were dealing with all the responsibilities and the organizational structure of such firms, some liability was easy definable, as the company directors were prosecuted and some of them convicted in manslaughter according to the registers”. Indeed, he asserted a major case, horrible accident with which the attention of the public and the law became more concentrated over the corporate negligence was the Herald of Free Enterprise case during the year 1987, upon following gross health and safety negligence which actions happened on a ship, where more than a hundred people found their death and that, only four cases were followed by prosecutions of not more than three companies and mainly their “operating minds” as a procedure of the old incomplete statutes of manslaughter, one indication that law reform has been considered to update old law of manslaughter to a new one, ‘Corporate Manslaughter’, concerning corporate bodies in relation to gross negligence but, operating minds as the old law is arguably stating, as Petkov (2008), further mentioned that one core reform in the system will be the replacement of the two-tier with innovative, three-tier structure of distinction between the murder and manslaughter convictions, being stated in the law commission reports. True, that fresh structure will give better understanding of distinction between convictions and will be concerned with the “border line” of the two (pp. 1-3). Recognizing that the “old law allegations are meeting complexity and a lack of clearance in prosecuting and convicting those. In such cases there are always insufficient facts and these corporate bodies are mostly never convicted, which worries the public and the judiciary at all levels”. Furthermore, from the basis on Corporate Manslaughter and Corporate Homicide Act of 2007, there creates new statutory offence of “corporate manslaughter”. It will replace the common law offence of “manslaughter by gross negligence”, within the corporations. Thus, there has been senior management failure, which amounts to a breach in that duty and which has resulted in a person’s death, from within the existing duties of care. This major reform will make the law to be applied more easily and will distinguish the prosecution to two stages which can be lawfully used in order more cases to reach a conviction level as opposite to the past results. It was known that, single individuals cannot be prosecuted by the new legislation but they continue to be liable under the health and safety regulations as well as under the existing statutes of manslaughter, constituting a gross breach of the duty of care. Amiably, ‘Corporate Manslaughter and Corporate Homicide Act 2007 are designed to make it easier to secure manslaughter convictions against corporations. It is essential for every public sector organizations to consider corporate manslaughter laws and whether their risk management policies, lines of delegation and responsibility are strong enough to withstand the pressure should tragic death occur’. Aside, ‘workplace deaths and deaths arising from the conduct of corporation have been met with charges alleging gross negligence manslaughter and/or offences under Health and Safety legislation and when a corporation was convicted of health and safety offence, directors and managers could be found guilty of the same offence’ (from Section 37 of the Health and Safety at Work Act) it could be that such offence, committed with the consent of connivance being punishable with a fine.   Corporate Manslaughter Law Reform Outline   I.              Corporate Manslaughter II.            Fatality in the Workplace III.           Corporate Manslaughter: The Law and Reform IV.          The Primary Scope of Corporate Criminal Liability V.           Law Reform Requirement VI.          Statute Objective VII.         Offenses Recognition VIII.       Corporate Manslaughter and Homicide IX.          The Criminal Law And Its Reform In Response To Industrial Deaths X.           Researches on Corporate Manslaughter XI.          Causal Link XII.         Recommendations         Conclusion   The corporate manslaughter reformation will integrate more research domain versus some of the corporate bodies under the allegations of Corporate Manslaughter even arguments placed that there will not lead to serious prosecution of the case situation as some employers will be bound from innovative act and will have to adhere changes in the company’s from reflecting health and safety regulations measures.     References Appleby, M. (2003) ‘Accounting for corporate killing – time for change’ Occupational Health Review104 (July/August 2003)   Clark, G. 1979, “Corporate homicide: A new assault on corporate decision-making”, Notre Dame Lawyer, vol. 54, p. 911.   Comment: 1984, “Corporate homicide: Will Michigan follow suit?”, University of Detroit Law Review, vol. 62, p. 65.   Corns, C. 1991, “The liability of corporations for homicide in Victoria”, Criminal Law Journal, vol. 15, no. 5, pp. 351-66   Edelman, D. 1987, “Corporate criminal liability for homicide: The need to punish both the corporate entity and its officers”, Dickinson Law Review, vol. 92, p. 193   Field, S. & Jorg, N. 1991, “Corporate liability and manslaughter: Should we be going Dutch?”, Criminal Law Review, March, pp. 156-71   Fisse, B. 1967, “The distinction between primary and vicarious corporate criminal         liability”, Australian Law Journal, vol. 41, no. 6, pp. 203-10.   (Gibbs) Review of Commonwealth General Law 1990, Interim Report: Principles       of Criminal Responsibility and Other Matters, AGPS, Canberra.   Goode, M. (1975), Corporate Criminal Liability. Dalhousie Law Journal Leigh, L.H. 1969, The Criminal Liabilty of Corporations in English Law, Weidenfeld & Nicholson, London.   Petkov, F. (2008), Reforms to the Law on Corporate Manslaughter in the UK: Information Paper, The Corporate Manslaughter and Corporate Homicide Act 2007 (Why has a reform been considered necessary?) Cluster Star: Student Business Consultants, pp. 1-4.   Spurgeon, W.A. & Fagan, T.P. 1981, “Criminal liability for life-endangering corporate conduct”, Journal of Criminal Law & Criminology, vol. 72, no. 2, pp. 400-33.   Stone, C. 1985, “Corporate criminal liability for homicide”, South Western Law        Journal, vol. 32, p. 1275.   Wells, C. 1988, “The decline and rise of English murder: Corporate crime and individual responsibility”, Criminal Law Review, pp. 788-801.   Wells, C. (2001) Corporations and Criminal Responsibility (Oxford, Oxford University Press)   Welsh, R. 1946, “The criminal liability of corporations”, Law Quarterly Review, vol. 62, p. 345   Yarosky, H. 1964, “The criminal liability of corporations”, McGill Law Journal, vol.        10, p. 142.   Credit:ivythesis.typepad.com

Corporate manslaughter law

Question 2 Introduction Corporate manslaughter law is evident before and as of the present times coming from such law re...

Are Shareholders the Real Owner of the Business?

Are Shareholders the Real Owner of the Business?   Shareholders are the people that own one or more shares of stock in a corporation.  They are also known as stockholders. The essential things that incorporated of being a shareholder are:  the person has the right to receive dividends for each share as approved by the Board of Directors.  The shareholder also has the right to vote for members of the board of directors, to take any legal action just in case there is mismanagement takes place.  Furthermore, he/she has also the right to participate in the partition of the value of assets, if there is still left upon the termination and closure of the corporation.  A shareholder’s name should be included in the registration of the name of the corporation.  There is also an issuance of stock certificate to the shareholders.  When a corporation is established, there are number of stockholders or shareholders are authorized to implement a set of company rules and policies over the fundamental company standard operating procedures, values, mission and vision as well as the main goals of the corporation.  Each shareholder has given the right to take charge for every decision making for the growth and development of the organization.  When a company is formed its shareholders make sure that a company must be owned and managed right, and there must be an expected return of investments within a specific period of time.  (http://legal-dictionary.thefreedictionary.com/shareholder) Furthermore, when a company is established there must be an issuance of Memorandum and Articles of Incorporation which will be filed with the Registrar of Companies.  However, any shareholders’ agreement and its contents will remain discreet from public filing.  A good performance from the board of directors and the good corporate governance are the very important factors for any company to continually function effectively and able to meet favorable results.    So, it must be a crucial decision among the shareholders to choose deliberately among themselves the most capable and well functioned members of the board of directors.  By this way, the company would be assured that the entire organization will be ran diligently and effectively by the well experienced and responsible board of directors.  (http://philtown.typepad.com/phil_towns_blog/2006/01/shareholders_ar.html) But before going to the shareholder’s agreement, there are some very important thoughts that must be given extra attention.  Like, who owns the biggest share?  How many shares does every shareholder have? How do they contribute to the growth and development of the company? What kind of contribution they are going to give?  Is it through cash, time, and intellectual aspect? These are some crucial factors in personal tax planning that must be consulted to tax experts. (http://philtown.typepad.com/phil_towns_blog/2006/01/shareholders_ar.html) In creating a shareholders agreement, there are some very essential factors have to be taken serious consideration.  Such as the kind of structure the company would have, the proper way to divide the equity among the shareholders, should the agreement be unanimous or just among the shareholders themselves.  Who will be capable of functioning as members of the board of directors, who will be officers and managers, what would be constituted in a quorum for meetings? Just in case there are business disputes and problems how are they going to resolve them, the shareholders’ obligations and commitment to the company and many more legal matters that are needed to be studied closely before entering a corporate governance among the shareholders.  (http://philtown.typepad.com/phil_towns_blog/2006/01/shareholders_ar.html) According to Stephen Bainbridge, a corporate law professor at UCLA; the idea of being a shareholder must be given recognition that whether a shareholder owns only 1 percent of the share or the other shareholder owns 80 percent of the corporation.  They must be recognized and acknowledged as both owners of the company.  They must have equal rights to be given sense of dealing by the employees and other people who are involved in the company.  Sharing stocks in a company gives enough reason to the shareholder to think that he is one of the owners of the company.  Because he believes that owning a stock in any business entity gives the shareholder an expectation that he is already a part of the ownership of the company.  So, therefore, shareholders are real business owners because of his/her right to hire members of board of directors to handle the company’s regular interactions with the CEO of the organization.  A shareholder has also the right to change the by laws of the business, a shareholder could also cause a liquidation of the business.  Meaning, the only difference between owning 1 % share from owning 80 % share of the corporation is the value or the amount of money they invest for the company.  But, still the same; they both have the equal rights to decide for the company because they are both shareholders. (http://philtown.typepad.com/phil_towns_blog/2006/01/shareholders_ar.html)     References: (http://legal-dictionary.thefreedictionary.com/shareholder) (http://philtown.typepad.com/phil_towns_blog/2006/01/shareholders_ar.html) (http://philtown.typepad.com/phil_towns_blog/2006/01/shareholders_ar.html) (http://philtown.typepad.com/phil_towns_blog/2006/01/shareholders_ar.html) (http://philtown.typepad.com/phil_towns_blog/2006/01/shareholders_ar.html)                 Credit:ivythesis.typepad.com

Are Shareholders the Real Owner of the Business?

Are Shareholders the Real Owner of the Business? Shareholders are the people that own one or more shares of stock in a corporation...

Examples of Worked Cases of Breach of Contract

Examples of Worked Cases of Breach of Contract   Generally, a contract is an agreement between individuals or business entities in which one party agrees to do something for the other party in exchange of something in return or payment.  For instance, A asks B to landscape his front yard for a payment of , 0000 and B agrees. The agreement can be written or oral, but in most situations, it should be finalized through black and white.  Contracts that are made by minors are not valid.  It should be signed by individuals at age 18 and above.  Nonetheless, in most states, if a minor makes a contract and then honors it after turning 18, the contract is valid and can no longer be annulled.  Additionally, all contracts are associated with a certain responsibility or obligation for every party to carry out by good faith.  Meaning, every person involved in the business contract must deal with all fair and honest execution under the agreed conditions and circumstances; in order to serve a common purpose based on the agreement.  On the other side of the coin, courts find “bad faith” when one party does something that evades the spirit of the agreement or violates community standards of fairness and reasonableness. Typically, it is very important to understand that all contracts contain an unwritten good faith requirement, because it shows that a small claims judge often will not find in favor of a party who sues based on a highly technical manner.  However, it is obviously unfair or unreasonable interpretation of contract language. For illustration purposes, if B agrees to landscape A’s yard in two weeks, but on the late afternoon does not able to finish it because she is called to the bedside of a sick child, a court will not agree with A’s contention that he does not have to pay for any of the work because B technically missed the 14-day deadline. Instead, a judge will almost surely rule that A’s duty to carry out the agreement in good faith requires him to allow B to finish the job even a few days late. (http://www.nolo.com/legal-encyclopedia/free-books/small-claims-book/chapter2-3.html) Correspondingly, there are common contract rules or principles that will help you to understand whether the contract you are going to sign on is valid or not.  Foremost, a gift is not a contract, for a simple reason that the recipient of the gift has not promised to do anything in return.  In other way around, an enforceable contract absolutely depends on an exchange or a promise to exchange something of value, such as money for services.  For example: Nicole tells Julius she is financially in need, so Julius promises to give Nicole ,000 in the second week of October. But, Steve changes his mind, because he decides he doesn’t like Nicole after all. Can Nicole sue Julius for the ,000?  This is not a contract, because Nicole has not promised to do anything for Julius in return for his promise to make a loan.  Julius had only said that he would give Marcia a gift in the future. A promise to make a gift is not an enforceable contract because there is no reciprocal promise or “quid pro quo,” or “consideration” involved. (http://www.janetjennersuggs.com/case-trial-expertise-cases.html) Another thing, a loan is indeed a contract. In the contrary to a gift; a promise to make a loan is a valid agreement or contract.  It is simply because each party provides something of value to one another.  For the lender agrees to lend the borrower the money, so as to the borrower agrees to pay back the   money   borrowed.  Moreover, a contract of exchange products, services or money is a contract.   The most usual type of contract occurs when E agrees to pay money to F in exchange for E agreeing to work or provide E with valuable goods.    One more illustration, Cleo promises to pay Anne 0 on November 15 in exchange for Anne’s promise to tutor Cleo’s daughter.  This is actually valid contract because each party has promised to do something for the other.  If Cleo fails to pay Anne On November 15 for her tutorial fee, then Anne can go to court and sue Cleo for breach of contract. As a final note, in court, you’ll need to convince the judge that the contract existed. If the contract is in the form of writing, bring it to court. If it is oral, be prepared to prove its existence through witnesses and circumstantial evidence.   You must be creative and convincing  enough–if you lent money to someone or  a debtor  by issuance of  a check, you can bring  a copy of the check;  along with your own testimony that the borrower promised to repay you, this should be all you need to establish the existence of a contract. (http://www.janetjennersuggs.com/case-trial-expertise-cases.html) References: http://www.nolo.com/legal-encyclopedia/free-books/small-claims-book/chapter2-3.html http://www.janetjennersuggs.com/case-trial-expertise-cases.html   Credit:ivythesis.typepad.com

Examples of Worked Cases of Breach of Contract

Examples of Worked Cases of Breach of Contract Generally, a contract is an agreement between individuals or business entities in whic...

Essay on Contract Law

I.              ANALYSIS OF THE STATEMENT a.    The Theory of Contracts A key characteristic of a “civil society” is autonomous economic organization and transactions.”(Keith, 19947) The belief that giving individuals the freedom to maximize their own wealth results in the maximization of society’s wealth is a cornerstone of capitalist philosophy. As the noted economist Keynes stated in his defense of capitalism during the depression of the 1930s, the allocative efficiencies and experimental creativity achieved through autonomous economic organization and transactions are “powerful instruments to better the future.”(Keynes, 1936) Moreover, the rule of law is a predicate for achieving autonomous economic organization and transactions. (Thornburgh, 1995) The rule of law has two basic principles. First is that people should be ruled by the law and obey it, and secondly, the law should be such that people will be able to be guided by it. (Segall, 1994) Hence, the rule of law assures that individuals know what the law is so they can maximize their own welfare within its confines. It also assures that individuals can pursue this wealth-maximizing autonomy without interference from either other individuals or the state. By assuring that the law is applied equally to all, is binding on the state, and prevents arbitrary actions by the state, the rule of law provides the freedom for the members of a “civil society” to order their own economic affairs. (Michael, 1988) There is a strong relationship between the rule of law and Western contract law. In the West, it is believed that the objective and predictable enforcement of contracts is desirable because it maximizes the welfare of the parties involved, thus promoting the welfare of society as a whole. (Farnsworth, 1990) Individuals enter into contracts because they believe that an exchange will make them each better off. Where contracts are enforced in an objective and predictable manner, individuals are better able to determine which transactions will be wealth-maximizing and are able to shift the risk of uncertain events in economically efficient ways. On the other hand, where contractual enforcement is subject to changing state policy wealth-maximizing transfers may be voided by the state or never attempted due to the risk of contractual non-enforcement. Further, the resolution of contractual disputes by a legal system that is an impartial mediator of interests is beneficial for society because it establishes rules to resolve future disputes and “encourages socially desirable behavior by future bargainers.”(Scott and Leslie, 1993) At the center of contract theory is the role of default roles. Contracts are necessarily incomplete and therefore a court or legislature must fill gaps. Recent scholarship has recommended that a lawmaker charged with this task look beyond the individual parties to a contract. This scholarship suggests that a default role can be designed to induce an equilibrium at which parties of one type accept the default role while parties of another type, to whom the role is costly, opt for an alternative contract term and thus reveal their type. When such a role works as intended, the revealed information permits efficient contractual arrangements and enhances social welfare. Explained this way, as an abstraction, the analysis seems simple and sound. The devil, though, is in the details. A default rule might fail at separation for reasons that have so far escaped scholars. The analysis of default rules thus requires amendment. Moreover, where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have  been in the contemplation of both parties, at the time they made the  contract, as the probable result of the breach of it. Recently, this venerable rule has taken on a new aspect. A party who will suffer exceptional damages from breach need only communicate her situation in advance and gain assent to allowance so that the damages are unmistakably “in the contemplation of both parties” at the time of contract. The economic question, then, is not whether a damages limitation is inherently sensible but whether a rational rule would impose the burden of contracting for exceptional damages on those who wish to avoid the limitation. Abundant contract scholarship supplies an explanation of why one might answer this question with a yes. (Bebchuk & Shavell, 1991) The idea is that the party who bears special risks from breach should identify those risks so that the party with whom she contracts is on notice to take the proper precautions wherever necessary. The alternative, broad insurance for all unless such insurance is disclaimed, would waste contracting costs for disclaimer in the ordinary case or, absent disclaimer, would yield inefficient precautions taken to avoid indiscernible risks. A penalty default is a rule intended to encourage opt-out by a party with private information that she will disclose when contracting for an alternative to the rule. A party who will suffer exceptional loss from breach is denied damages for such loss if her contract is silent. She can avoid the default rule by proposing that the contract include insurance against exceptional loss. With this proposal, she identifies herself as someone at risk of such loss and permits her counterpart to take, and charge for, efficient precaution. Furthermore, the literature on incomplete contracts diverges from the law-and-economics literature, though they overlap in many ways. The theory of incomplete contracts was motivated primarily by descriptive curiosity about the nature of private contracting, not about contract law. As a result, contract law is usually treated in an exceptionally simple manner, as a system that specifically enforces contractual terms when the underlying behavior can be verified by courts. (Ayres and Gertner, 1989) This assumption enables scholars to focus on the parties’ choice of contractual form. By contrast, law and economics generally assumes that parties choose simple contracts-contracts with a fixed price and quantity and sometimes a liquidated damages clause, and focuses on the effect of different legal rules on contractual behavior.   b.    Misrepresentation and Breach of Contract in the Context of English Law In the context of the English law, the notion of a contract is characterized as an agreement where an individual accede to attend another who commence to compensate the former with wages and establishes between them exclusive sense of duties of the kind theoretically known as obligations, duties which as a minimum in the first instance can be imposed only by and against the factions to the transaction. Nevertheless, there will always be hindrances and imperfections in transactions. Contracts might become incomplete due to several reasons, which in turn could be perverted or unintentional. Several legal actions that may be undertaken in the occurrence of an uncompleted contract include the concept of breach of contract and misrepresentation. The former is characterized as the failure with the lack of lawful justification to perform any promise which forms the whole or part of a contract. This basically states that one party refuses to explicitly and totally refuse to perform the agreement. The latter, on the other hand, is described as an erroneous or fabricated representation that which if acknowledged, directs the mind to an apprehension of a circumstance other and dissimilar from that which exists. Simply speaking, the thrust of misrepresentation is to deceive and to mislead from the inception of an agreement. In most cases, reparation will be of such amount as to place an aggrieved party, inasmuch as funds could comply, in the same situation as if the contract had been completed although it is still subjected to the rule that damages are not to be prearranged for casualties of an exceptional category. In a number of cases, the reparations permitted by law are simply nominal. To illustrate, for an unsuccessful payment of a liabilities at the period decided upon, nothing further than the quantity of the debt itself could be retrieved. Conversely, in the instance of breach of promise of marriage, reparation that may go beyond the financial loss, are prearranged as a compensation for indignant feelings. A contract occasionally provides that a particular figure shall be remunerated on breach, and regulations have been positioned for deciding whether such a sum is to be reckoned as a punishment. The verdict will turn barely to a minor degree on the issue whether the manifestation of ‘penalty’ or ‘liquidated damages’ has been utilized in the agreement. Destructive duties stated in a contract may as well be obligatory through an injunction, another of the court preventing the responsibility of an undertaking. In certain circumstances, a positive obligation may be imposed by order for particular performance, a solution which is approximately limited to agreements for the sale or conveyance of interests in land, and for the turning over of other property which is so inimitable or degree that damages would be an insufficient resolve. The court has a prerogative in yielding an injunction and an instruction for specific performance and in carrying out the discretion will have take into account all the conditions of the case, and especially to the demeanor of the party appealing for it. Nonconformity with an injunction of either kind will be sanctioned by incarceration. (Geldart, 1995) On the other hand, the misinterpretation theory reaches this conclusion by interpreting all promises as representations about the promisor’s future conduct. A person who promises to give a friend a ride has made a definite statement about what will happen in the future. If she then fails to come through with the ride, her failure makes this statement about the future a false one, thereby violating the obligation to tell the truth (in addition to causing harm). By contrast, a person who says that she will probably give her friend a ride, but who reserves the right to change her mind, has made a much weaker probabilistic statement about the future. That person’s failure to perform would not make her previous statement false, and therefore would not violate the obligation to tell the truth, even though it might cause the same amount of harm to her friend. According to the misinterpretation theory, this is why a person who promises to give her friend a ride has a stronger reason to do so than does a person who has merely said that she is likely to give her friend a ride, without actually promising. Admittedly, the obligation to tell the truth appears here in what may be an unfamiliar guise. The obligation has some elements of strict liability, for it is no defense to say that at the time of promising the speaker thought that her statement would come true. In addition, the obligation to tell the truth is perhaps more usually thought of as an obligation limiting what one is allowed to say, by obliging people not to say anything that is false. Under this theory, though, the obligation limits what speakers can do, by forbidding people from doing anything that will make their prior statements turn out to be false. Rather than requiring people to conform their statements to reality, the misinterpretation theory of promising requires people to act in such a way that reality will conform to their prior statements. (Fogelin, 1983) A misrepresentation made by one person to another with the purpose and effect of inducing him to enter into a contract with the former, will entitle the latter to avoid the contract, if it is a misrepresentation as to some material fact. A declaration of opinion is not and does not befit a misrepresentation for the reason that the opinion ended up to be erroneous or the purpose is not accomplished. In the instance where a representation is not purely false, yet is recognized to be so to the individual who renders it, or is made it heedlessly devoid of concentration whether it is true or false, it is identified as fraud or deceit. For the rationale of giving a right to averting of the contract, it establishes diminutive variance whether a misrepresentation is innocuous or deceitful, save that it will be harder to resist the inference that a fraudulent misrepresentation was made for the purpose of inducing the contract. And when a verdict has been achieved, especially when the transaction has been accomplished by conveyance dissimilar outcomes will be given to an innocent and a fraudulent misrepresentation. The former will not have the right to be set aside while the latter will. Generally, there is no obligation compelling a party to any intended contract to make a disclosure to the other of material facts which might affect his judgment. (Geldart, 1995)   c.    Possible Reasons Why Misrepresentation is Frequently Pursued than Breach of Contract This part of the essay shall be discussing and analyzing the fundamental reason why litigators are prevalently pursuing for misrepresentation as compared to breach of contract. The attributes of the two legal actions are already discussed in the previous part of this paper. In the context of English law, prosecuting for misrepresentation is less complex compared to breach of contract. The two differs primarily on the calculation of damages, the possibility of rescission and the burden of proof. These are the factors why litigators prefer misrepresentation. In a breach of contract, damages are paid based on the position of the plaintiff after the contract has been performed. This is beneficial for the plaintiff considering the fact that he will be able to acquire the profit he deserves had there been no breach in the agreement. On the other hand, misrepresentation will only have reparation for the invested resources of the plaintiff. In this case, when a verdict of misrepresentation is given, the plaintiff will be able to acquire what had been lost due to a misrepresentation. The effect will be similar to the fact that the plaintiff had never entered into a contract. Therefore, a greater availability of rescission is present on misrepresentation rather than that of breach of contract. Although there is an absolute possibility that the rescission of the contract is accessible, reparations for the plaintiff is not taken for granted. (Geldart, 1995) A significantly appealing quality of misrepresentation suits is the burden of proof. In the suit of breach of contract, the plaintiff has the burden of proof whether a violation of the agreed covenant among parties has transpired. On the other hand, a misrepresentation suit provides the burden of proof to the accused party. Consequently, if the defendant is not able to emancipate his evidential burden and acquire the justification of reasonable belief, the claimant should come off in its claim and salvage those losses which he can demonstrate were instigated by the misrepresentation. Thus, it may be easier to prove a misrepresentation claim than a breach of contract. For that reason, the misrepresentation is asserted as a contingency plan to the contractual accusation. (Geldart, 1995) References: Farnsworth, E. A. (1990) Contracts. Aspen. 2nd Ed. Fogelin, Richard. (1983) Price on Promising: A Limited Defense”, 21 J. HIST. PHIL.289; Hanfling, supra note 12, at 24-25. Geldart, W. (1995) Introduction to English Law. Oxford University. Oxford, England Keith, R. (1994) China’s Struggle For The Rule of Law. St. Martin’s Press, New York. Keynes, J. (1936) The General Theory of Employment, Interest And Money. Harcourt, Brace. Michael, F. (1988) Law: A Tool of Power, In Yuan-li et al., Human Rights In The People’s Republic of China. Boulder, Co. Westview Press. Scott, R. & Leslie, D. (1993) Contract Law And Theory. Sage.  2d Ed. Segall, E. (1994) Justice Scalia, Critical Legal Studies, and the Rule of Law, Geo. Wash. L. Rev. Vol. 991. Thornburgh, R. (1995) The Soviet Union and the Rule of Law. Foreign Affairs. Vol. 13, No. 14.   Credit:ivythesis.typepad.com

Essay on Contract Law

I. ANALYSIS OF THE STATEMENT a. The Theory of Contracts A key characteristic of a “civil society” is autonomous econom...