Устные темы на зачет

1. Что такое право? Функции права.
2. Юридические профессии в разных странах.
3. Судебная система Великобритании
4. Судебная система США
5. Судебная система России

1. 1. Law is a body of official rules and regulations. It is generally found in constitutions, legislation and judicial decisions. Law is used to govern a society and to control the behaviour of its members. The nature and functions of law have varied throughout history. In modern societies, some authorized body such as a legislature or a court makes the law. It is supported by the coercive power of the state, which enforces the law by means of appropriate penalties or remedies.

Formal legal rules and actions are usually distinguished from other means of social control and guides for behaviour such as morality, public opinion, and custom or tradition. Of course, a lawmaker may respond to public opinion or other pressures, and a formal law may prohibit what is morally unacceptable.

Law serves a variety of functions. Laws help to maintain a relatively stable society, facilitate business activities, limit the powers of government and provide some degree of freedom that would not otherwise be possible.

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2. Law serves a variety of functions. Laws against crimes, for example, help to maintain a peaceful, orderly, relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion. Property and contract laws facilitate business activities. Laws limit the powers of government and help to provide some degree of freedom that would not otherwise be possible. Law has also been used as a mechanism for social change; for instance, at various times laws have been passed to improve the quality of individual life in matters of health, education, and welfare.

Law is not completely made by humans; it also includes natural law.The best-known version of this view, that God's law is supreme, has had considerable influence in the United States and other Western societies. The civil rights movement, for example, was at least partially inspired by the belief in natural law. Such a belief seems implicit in the view that law should serve to promote human dignity, as for instance by the enforcement of equal rights for all. Muslim societies also embrace a kind of natural law, which is closely linked to the religion of Islam.

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3. Law develops as society evolves. Historically, the simplest societies were tribal. The members of the tribe were bonded together initially by kinship and worship of the same gods. Even in the absence of courts and legislature there was law — a blend of custom, morality, religion, and magic. Tribal society gradually evolved into territorial confederations. Governmental structures emerged, and modern law began to take shape. The most significant historical example is Roman law, which influenced most of the legal systems of the world.

The common-law systems of England, and later of the U.S., developed in a different manner. Before the Norman Conquest (1066), England was a loose confederation of societies, the laws of which were largely tribal and local. The Anglo-Norman rulers created a system of centralized courts that operated under a single set of laws. This legal system, known as the common law of England, began with common customs, but over time it involved the courts in lawmaking (in response to changes in society).

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4. Substantive law defines the rights and duties of persons; procedural law defines procedures for enforcing those rights and duties. Substantive law determines a wide variety of matters — for example, what is required to form a contract, what the difference is between larceny and robbery, when a person can have compensation for an injury, and so on. The rules of procedure and jurisdiction determine the court that may deal with a claim or dispute; the form of the trial, hearing, or appeal; the time limits involved; and so on. Related rules also cover the kinds of evidence that may be presented.

Public law concerns the relationships within government and between governments and individuals.

The development of administrative law is a comparatively recent event. Numerous administrative agencies now make rules that deal with all kinds of activities, including licensing, protection of health, etc. Their powers emanate from legislation, and the courts can review their rules.

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5. Public law concerns the relationships within government and between governments and individuals. The development of administrative law is a comparatively recent event. Numerous administrative agencies now make rules that deal with all kinds of activities, including licensing, protection of health, etc. Their powers emanate from legislation, and the courts can review their rules. Laws concerning taxation and the regulation of business are in the public area, as is criminal law, which involves the use of governmental power by way of enforcement and punishment. Other constitutional protections such as the right of the accused to remain silent and the right to effective counsel further emphasize the public-law nature of the area. Criminal law not only promotes security and order but also reinforces moral norms. There have been continuous debates regarding the legitimacy of government intervention in areas where moral attitudes are in significant conflict (such as in matters of birth control and euthanasia).

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6. Private law involves the various relationships that people have with one another and the rules that determine their legal rights and duties among themselves. The area is concerned with rules and principles concerning private ownership and use of property, contracts between individuals, family relationships. Historically, government involvement was usually minimal.

Public law dominates in government-controlled societies; democratic societies have a mix of public and private law. The private sphere includes individuals and a great number of groups, associations, organizations, and special legal entities such as corporations. They compete with one another and with government for control of resources, wealth, and power. Special fields of law, such as labour law, facilitate and control this competition. Much of such law is in the commercial and corporate areas. The formerly purely private law of property and contracts, for example, is now overlaid with legislation, regulations, and judicial decisions reflecting the competition.

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15. Prosecutor is a government official charged with bringing defendants in criminal cases to justice in the name of the state. Although responsibilities vary from one jurisdiction to another, many prosecutors are in charge of all phases of a criminal proceeding, from investigation by the police through trial and beyond to all levels of appeal. Many also defend the state in civil actions. In most U.S. state and local jurisdictions, prosecutors are elected to office. On the federal level, district attorneys are, in effect, members of the executive branch of the government; they are usually replaced when a new administration comes into office. In the United States the prosecutor presents evidence at a hearing before a grand jury, which may or may not return an indictment for trial. In countries where the judge handles the questioning of witnesses, the prosecutor is limited to presenting evidence and giving a final summation. In the United States and Great Britain the prosecutor plays an active role in questioning witnesses. In most countries, when a decision is appealed to a higher court, the prosecutor presents briefs and pleads the state's case.

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9. The supreme law of the USA is the Constitution of the United States. It was drafted in 1787, was ratified by the required two-thirds of the states by June 1788, and was put into effect in 1789. The first ten amendments, known as the Bill of Rights, were adopted in 1791. They provide for freedom of speech, freedom of religion, freedom of the press, the right to assemble, the right to petition the government, criminal procedure rights for individuals. Seventeen additional amendments were adopted between 1795 and 1992, abolishing slavery, providing for an income tax, and providing for universal suffrage for all people 18 or older, among other purposes.

The Constitution sets a union of states, each with its own constitution, republican form of government, and reserved powers, within a federal system. The national government is responsible for external affairs and has concurrent powers with states, commonwealths, and self-governing territories over domestic matters. The head of state is the President of the United States; and the seat of government is the District of Columbia, which has limited home rule and no voting representation in the national legislature. The Constitution establishes three separate branches of government: the legislative, executive, and judicial.

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10. The supreme law of the USA is the Constitution of the United States. Article II of the Constitution states that a president and vice president are chosen by a majority of voters in the Electoral College, for a fixed term of four years. The 22nd Amendment (1951) limits presidents to two terms in office. Unlike most presidents in other nations, the American President is also the head of his or her party, an important legislative leader, and the chief executive. The Constitution makes the President Commander-in-Chief of the U.S. armed forces. The president's diplomatic powers include negotiation and ratification of treaties, with the consent of two-thirds of the Senate; the appointment of ambassadors to foreign nations, also with the consent of the Senate; and the reception of foreign ambassadors. The president negotiates, on his or her own authority, executive agreements with leaders of other nations. An extensive advisory system serves the president. The President's cabinet also serves as a source of information and advice. It consists of the heads of the governmental departments and a few other officials, such as the director of the Central Intelligence Agency and the U.S. ambassador to the United Nations (UN). The cabinet has no power of its own.

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11. The supreme law of the USA is the Constitution of the United States. All legislative powers granted by the Constitution in Article I are exercised by the Congress of the United States. Congress consists of two houses, the Senate and the House of Representatives. The Senate contains 100 senators, two representing each state — a provision of the Constitution not subject to amendment. The 435 members of the House are elected by the different states on the basis of their population at the most recent U.S. census. Every two years all 435 members of the House are elected, and one-third of the senators.

Congress has extensive powers in domestic affairs, including the power to tax, borrow money and pay debts, coin money and regulate its value, and regulate commerce among the states. Congress helps to establish and oversees the departments and agencies of the executive branch; it also establishes the lower federal courts and determines their jurisdiction. Congress has the power to declare war, raise and maintain the armed forces, establish tariffs, and regulate commerce with foreign nations.

The legislative branch also includes agencies such as the Congressional Budget Office, the General Accounting Office, the Library of Congress, and the Government Printing Office.

12. The federal court system of the USA derives its powers from Article III of the Constitution. The system includes the Supreme Court of the United States, established by the Constitution; and 12 courts of appeal (sometimes called circuit courts), 91 district courts, and special courts, all established by the Congress.

The federal courts perform two constitutional functions. First, they interpret the meaning of laws and administrative regulations. Second, the courts determine whether any law passed by Congress or state legislatures, or any administrative action taken by the national or state executive branches, violates the US Constitution. Federal courts can declare null and void laws or actions, at the national and state levels, that violate the Constitution.

The nine justices of the Supreme Court and the other federal judges are nominated by the president with the advice and consent of the Senate. All federal judges and justices of the Supreme Court serve on good behaviour for life. They may be removed from office only through the process of impeachment, which has been used fewer than 20 times, and never successfully against a Supreme Court justice.

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14. In the UК the Crown Prosecution Service is responsible for prosecuting people charged with a criminal offence. As the principal prosecuting authority in England and Wales, it is responsible for: advising the police on cases for possible prosecution; reviewing cases submitted by the police; preparing cases for court; presentation of cases at court.

The head of The Crown Prosecution Service is the Director of Public Prosecutions. The Director of Public Prosecutions reports to the Attorney General, who holds Parliamentary responsibility for the Service. The Crown Prosecution Service employs approximately 7,700 staff including lawyers and administrators. These key personnel are located throughout the country and handle over 1.3 million magistrates' court cases and 115,000 Crown court cases every year.

The Crown Prosecution Service started operating in 1986 when the Prosecution of Offences Act (1985) became law. Before this time local police forces were responsible for deciding whether to prosecute particular cases.

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16. In the United States, qualifications for the position of a notary vary little from state to state, and, in general, a notary must be a citizen of legal age and a resident of the area in which he desires appointment. The jurisdiction of the notary's office is limited to the state or, in some states, only the county in which he resides. In countries such as France and Italy, however, and in the Canadian province of Quebec, which follow the civil-law tradition, there are educational requirements for notaries similar to those for lawyers.

In the civil-law countries of western Europe, and in Latin American and French areas of North America, the office of notary is a much more important position than in the United States and England. The civil-law notary may be roughly described as a lawyer who specializes in the law relating to real estate, sales, mortgages, and the settlement of estates but who is not allowed to appear in court. Documents prepared by him or authenticated in the proper manner are, in these countries, admissible in court without further proof of their authenticity; the notary guarantees the identity of the parties.

17. The notary is qualified as a public official because the State delegates to him the powers of public certification, so the documents drawn up by a notary are considered to be authentic, which means that the deed or contract is valid.

The notary draws up a document after hearing the will of the parties, he adjusts such will to the legal system through his advice and at the same time he exercises control to ensure it is licit by virtue of the powers conferred upon him by the State. The notary is the author of the document and therefore he is responsible for its consistency with the law.

Consulting services are provided to private individuals in an active, personalised and unbiased manner. The duty of being unbiased compels the notary to inform and provide special assistance to both parties and in particular to the party which were to be in a condition of inferiority with respect to the other in order to reach the necessary balance that will make sure that the contract is entered into in conditions of equality.

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18. The notary is a public official who by state delegation attributes public certification to the documents (contracts, deeds, etc.) he draws up by an appropriate certificate with a notarial seal. These documents are admissible without further proof of their authenticity. In order to allow him independence, the notary has recognised professional status in the way he performs his functions.

The notary as a public official, exercises his functions within a professional setting and within the field of private law where there is no conflict, i.e. only in the sphere of private legal relationships that are established, modified or terminated without disagreement between the parties.

In summary, the function of a notary is preventive in nature, and is thus opposed to the function of a judge, in that the notary has the role of reducing the risk of litigation; a notary provides legal support to the agreements between citizens; thus he protects the legitimate interests of the users of law.

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19. Advocate, in law, is a person who is professionally qualified to plead the cause of another in a court of law. As a technical term, advocate is used mainly in those legal systems that derived from the Roman law. In Scotland the word refers particularly to a member of the bar of Scotland, the Faculty of Advocates. In France avocats were formerly an organized body of pleaders. In Germany, until the distinction between counsellor and pleader was abolished in 1879, the Advokat was the adviser rather than the pleader. The term has traditionally been applied to pleaders in courts of canon law, and thus in England those who practiced before the courts of civil and canon law were called advocates. In the United States the term advocate has no special significance, being used interchangeably with such terms as attorney, counsel, or lawyer.

A lawyer is trained and licensed to prepare, manage, and either prosecute or defend a court action as an agent for another and who also gives advice on legal matters that may or may not require court action.

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20. A lawyer applies the law to specific cases. He investigates the facts and the evidence by conferring with his client and reviewing documents, and he prepares and files the pleadings in court. At the trial he introduces evidence, interrogates witnesses, and argues questions of law and fact. If he does not win the case, he may seek a new trial or relief in an appellate court.

In many instances, a lawyer can bring about the settlement of a case without trial through negotiation, reconciliation, and compromise. In addition, the law gives individuals the power to arrange and determine their legal rights in many matters and in various ways, as through wills, contracts, or corporate bylaws, and the lawyer aids in many of these arrangements.

A lawyer has several loyalties in his work. They include that to his client, to the administration of justice, to the community, to his associates in practice, and to himself. When these loyalties conflict, the standards of the profession are intended to effect reconciliation.

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21. Legal practice varies from country to country. In the United States attorneys often specialize in limited areas of law such as criminal, divorce, corporate, probate, or personal injury, though many are involved in general practice.

In Ukraine, the advocates act to ensure the right to a defense against accusation and to provide legal assistance in deciding cases in courts and other state bodies.

In addition to these professional groups there are nonprofessional legal counsellors who give advice on various legal problems and are often employed by business firms. In almost all civil-law countries there are notaries, who have exclusive rights to deal with such office work as marriage settlements and wills.

In Germany the chief distinction is between lawyers and notaries. Attorneys are often restricted to practice before courts in specific territories. Here lawyers are employed in the administration of government to a greater extent than in common-law countries.

In France numerous types of professionals and even non-professionals handle various aspects of legal work. The most prestigious is the avocat, who is equal in rank to a magistrate or law professor.

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22. The USA federal courts are often called the guardians of the Constitution because their rulings protect rights and liberties guaranteed by the Constitution. Through fair and impartial judgments, the federal courts interpret and apply the law to resolve disputes. The Constitution of the USA promotes judicial independence in two major ways. First, federal judges are appointed for life, and they can be removed from office only through impeachment and conviction by Congress of «Treason, Bribery, or other high Crimes and Misdemeanours.» Second, the Constitution provides that the compensation of federal judges «shall not be diminished during their Continuance in Office», which means that neither the President nor Congress can reduce the salary of a federal judge. These two protections help an independent judiciary to decide cases free from popular passions and political influence.

The Supreme Court is the highest court in the federal judiciary. Congress has established two levels of federal courts under the Supreme Court: the trial courts and the appellate courts.

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23. The United States district courts are the trial courts of the federal court system. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. There are 94 federal judicial districts, including at least one district in each state, the District of Columbia and Puerto Rico. Each district includes a United States bankruptcy court as a unit of the district court.

The 94 judicial districts are organized into 13 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims.

The United States Supreme Court consists of the Chief Justice of the United States and eight associate justices. The Supreme Court each year hears a limited number of the cases it is asked to decide. Those cases may begin in the federal or state courts, and they usually involve important questions about the Constitution or federal law.

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24. The UK Parliament is one of the oldest representative assemblies in the world. From the 14th century, parliamentary government in the United Kingdom has been based on a two-chamber system. The House of Lords (the upper house) and the House of Commons (the lower house) sit separately and are constituted on entirely different principles. The relationship between the two Houses is governed largely by convention but is in part defined by the Parliament Acts. The legislative process involves both Houses of Parliament and the Monarch.

The House of Commons is traditionally regarded as the lower house, but it is the main parliamentary arena for political battle. A Government can only remain in office for as long as it has the support of a majority in the House of Commons. As with the House of Lords, the House of Commons debates new primary legislation as a part of the process of making an Act of Parliament, but the Commons has primacy over the non-elected House of Lords. «Money Bills», concerned solely with taxation and public expenditure, are always introduced in the Commons and must be passed by the Lords promptly and without amendment. When the two houses disagree on a non-money bill, the Parliament Acts can be called upon to ensure that the will of the elected chamber prevails.

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*25. The House of Lords is the second chamber of the UK Houses of Parliament. Members of the House of Lords (known as «peers») consist of Lords Spiritual (senior bishops) and Lords Temporal (lay peers). Law Lords (senior judges) also sit as Lords Temporal. Members of the House of Lords are not elected. Originally, they were drawn from the various groups of senior and influential nobility in Britain, who advised the Monarch throughout the country's early history.

Following the House of Lords Act 1999 there are only 92 peers who sit by virtue of hereditary peerage. The majority of members are now life peers and the Government has been consulting on proposals for further reform of the Lords.

The House of Lords considers legislation, debates issues of importance and provides a forum for government ministers to be questioned. The Committees of the House consider a wide range of issues and produce reports on them. The House of Lords is also the highest court in the United Kingdom.

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*26. For people living in Europe today, one international human rights treaty has special importance — the European Convention on Human Rights and Fundamental Freedoms (ECHR). Among the rights set out in the ECHR are: the right to life (Art 2); prohibition of torture, inhumane and degrading treatment (Art 3); prohibition of slavery and forced labour (Art 4); rights to liberty and security of the person (Art 5); right to a fair trial to determine civil obligations and criminal charges (Art 6); no punishment without law (Art 7); right to respect for a person's private and family life, his home and his correspondence (Art 8); freedom of thought, conscience and religion (Art 9); freedom of expression (Art 10); freedom of assembly and association, including the right to form and join trade unions (Art 11); and the right to marry (Art 12). There are a number of Protocols to the ECHR, not all of which the parties have yet agreed to be bound by. The First Protocol provides that «every natural and legal person is entitled to the peaceful enjoyment of his possessions» (Art 1), that «no person shall be denied the right to education» (Art 2) and that the parties to the Protocol «undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature» (Art 3).

Date: 2015-12-13; view: 388; Нарушение авторских прав