English common law and equity law

下面为大家整理一篇优秀的assignment代写范文- English common law and equity law，供大家参考学习，这篇论文讨论了英国的普通法与衡平法。英国的普通法与衡平法，它们不是两种敌对或对立的法律体系，衡平法不是一种自足的法律体系，在每一点上它都预设普通法的存在；而普通法是自足的。普通法和衡平法相当于法典和附件、文本和注释的关系，它们之间的差别最主要还体现之司法方式方面。

A more general definition of common law is that the common law developed by common law judges and the equity law developed by equity judges are collectively called "common law", which is characterized by case law as opposed to statutory law. This statement is not uncommon, but it is not the common law discussed here. The common law in this paper is the narrowest common law, that is, the legal system developed by the common law judges through their judicial practice, as opposed to the equity legal system developed by the equity judges.

From the perspective of the history of common law development, it can be reflected or existed in the following forms: judge's mind, court dossier, legal report and jurisprudence of ancient sages. The latter three were also mentioned by blackstone. In the first case, if any rule of law existed in the early days, baker argues, it was not established by judgment, but rather by some "common knowledge" then accepted by the legal profession, of which the judge was the principal repository. Therefore, in the first stage of common law, the carrier is the judge's own mind rather than court documents, and the mode of dissemination is mainly word of mouth. But then, on the whole, the most common form of the common law is precedent, where the common law rules are generally embedded in previous judgments. But previous judgments can take different forms, such as being registered in court filings or reported in case reports or legal reports.

The common law is such a kind of law, which is a set of legal system formed by common law judges under the framework of new procedural rules, after identifying, inheriting, revising, processing and integrating past habits through judicial practice. Its main manifestation is case law.

In order to define equity, maitland had offered two other options: one was to treat equity as a specific part of existing English substantive law, but the previous equity courts must be mentioned when we try to distinguish it from other parts of English law; Another option is to enumerate a series of rules that say this is equity, but to explore the general characteristics of these legal rules and to distinguish them from other legal rules, we must return to the fact that it is the rule that has been applied in the courts of equity in the past. So just as we can define common law only in this way, we can define equity only as a set of legal rules enforced by a court of chancery.

The rise of equity was directly related to the rise of the court of equity, and to the nature and evolution of the court minister and his power as an officer of equity. In short, the Lord chancellor exercised the prerogative jurisdiction of the king, which was the source of all justice, and was not exhausted by the establishment of the common law courts. Therefore, when a party's rights and interests cannot be remedied in the common law courts for various reasons, he may go directly to the king and his council, which gradually transfers such disputes to the Lord chancellor. In the judicial process, the Lord chancellor does not follow the common law procedure, but adopts the procedure similar to the church court, to find out the facts by scraping the conscience of the parties and make decisions accordingly, so it is also called the "court of conscience".

The correlation and harmony between equity and common law cannot erase their differences, which are mainly reflected in three aspects.

No writ of initiation is required in chancery court proceedings. All proceedings begin with a complaint or informal complaint, such as an oral complaint. In general, a subsequent summons for the first procedure is simply a notice requiring the defendant to appear before the secretariat or face a penalty. It is very different from a starting writ: the latter must tell the cause to be told; The former simply states that you have been prosecuted by a and must therefore answer the charge before the Lord chancellor, or face a fine or imprisonment, although in practice the alleged punishment has not been carried out, and a defendant who fails to comply will be held in contempt of court.

The common law is limited by the forms of writs and proceedings and the remedies offered are specific and therefore limited. For example, in the contract, the main remedy is to compensate for the loss, and sometimes the compensation for the loss is of little significance to the parties, for example, the custodian refuses to return the items of memorial significance to the consignee, then the common law court is powerless. The court of equity, on the other hand, could compel the other party to actually perform, which in some cases would be more practical than compensating for the loss. An injunction is also widely used in chancery courts. It can be used to compel a party to do or not to do something.

The chancery is more concerned with substantive justice and the specific facts and circumstances of individual cases. The chief justice, by contrast, is more concerned with individual cases than with general rules, and until he accepts the principle of precedent, his court's decisions are directed only at the parties to the case and have no general validity. The Lord chancellor, who combines the role of judge and jury, makes no distinction between law and fact when it comes to the particular case at hand that conscience requires.

On the question of the relationship between equity and the common law, maitland's view still stands: the common law and equity are not two rival or opposing legal systems; equity is not a self-sufficient legal system, and at every point it presupposes the existence of the common law; The common law is self sufficient. The relationship of common law and equity to codes and annexes, texts and notes. The main difference between them is the judicial method.

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