2016年ACCA考试《公司法与商法》冲刺题(2)

2016年ACCA考试《公司法与商法》冲刺题(2) <br /> Question: <br /> <br />(a) In relation to the English legal system, explain the meaning of: <br /> <br />(i) criminal law; <br /> <br />(ii) civil law. <br /> <br />(b) Explain the hierarchy of courts dealing with criminal law. <br /> <br />Answer: <br /> <br />(a) (i) Criminal law relates to conduct which the State considers with disapproval and which it seeks to control. Criminal law involves the enforcement of particular forms of behaviour, and the State, as the representative of society, acts positively to ensure compliance. Thus, criminal cases are brought by the State in the name of the Crown and cases are reported in the form of Regina v … (Regina is simply Latin for ‘queen’ and case references are usually abbreviated to R v ...). In criminal law the prosecutor prosecutes a defendant (or ‘the accused’) and is required to prove that the defendant is guilty beyond reasonable doubt. The Companies Act (CA) 006 sets out many potential criminal offences, which may be committed by either the company itself, or its officers or other individuals. An example of this which may be cited is s.993, which relates to the criminal offence of fraudulent trading and applies to any person, not just directors or members, who is knowingly a party to the carrying on of a business with the intent to defraud creditors. The potential penalty on conviction is imprisonment for a maximum period of 10 years, or a fine or both. <br /> <br />(ii) Civil law, on the other hand, is a form of private law and involves the relationships between individual citizens. It is the legal mechanism through which individuals can assert claims against others and have those rights adjudicated and enforced. The purpose of civil law is to settle disputes between individuals and to provide remedies; it is not concerned with punishment as such. The role of the State in relation to civil law is to establish the general framework of legal rules and to provide the legal institutions to operate those rights, but <br /> <br />the activation of the civil law is strictly a matter for the individuals concerned. <br /> <br />Contract, tort and property law are generally aspects of civil law. <br /> <br />Civil cases are referred to by the names of the parties involved in the dispute, for example, Smith v Jones. In civil law, a claimant sues (or ‘brings a claim against’) a defendant and the degree of proof is on the balance of probabilities. In relation to the CA 006, the duties owed to companies by directors set out in ss.171–177 may be cited as examples of civil liability, and directors in breach are liable to recompense the company for the consequences of their failure to comply with those duties, as is set out in s.178. <br /> <br />In distinguishing between criminal and civil actions, it has to be remembered that the same event may give rise to both. For example, where the driver of a car injures someone through their reckless driving, they will be liable to be prosecuted under the Road Traffic legislation, but at the same time, they will also be responsible to the injured party in the civil law relating to the tort of negligence. Similarly, a director may fall foul of both the criminal regulation of fraudulent trading (s.993 CA 006) as well as breaching their duty to the company under one of the provisions of ss.171–177 CA 006. <br /> <br />(b) The essential criminal trial courts are the magistrates’ courts and Crown Courts. In serious offences, known as indictable offences, the defendant is tried by a judge and jury in a Crown Court. For less serious offences, known as summary offences, the defendant is tried by magistrates; and for ‘either way’ offences, the defendant can be tried by magistrates if they agree but the defendant may elect for jury trial. <br /> <br />Criminal appeals from the magistrates go to the Crown Court or to the Queen’s Bench Division (QBD) Divisional Court ‘by way of case stated’ on a point of law or that the magistrates went beyond their proper powers. <br /> <br />Further appeal is to the Court of Appeal (Criminal Division) and then to the Supreme Court on a significant point of law. <br />