Cours institutions juridiques britanniques L1 droit

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Obiter dictum (things said in passing): rapport entre tous les precedents qui ont un lien avec l’affaire.

Ratio decidendi (reason for deciding) : principe de droit applicable

Actual decision (between the parties) : décision des partis

La décision prise va lier toutes les autres décisions par la suite. (On lie le ratio decidendi, pas le raisonnement).

Cour supreme USA : 9 décisions individuelles > on prend la décision de la majorité. Pb : la minorité va être d’accord sur le raisons, la majorité va trouver plusieurs raisons > plus de gens sont d’accords sur une seule raison (dans la raison minoritaire) que les autres sur la décision majoritaires (pour plusieurs raisons). Pb : ce système est très rigide. Pour casser la rigidité, il y a la technique du distinguish pour des affaires avec des éléments différents.

Is every one bound to every one ?

The Court System in England:

Magistrate courts : Not professional juges : they are lay people. Any one can be a magistrate. The main conditions was to have a clean criminal record (list all of offensive).

County courts : they are professional juges. First instance courts (trial courts : cour de première instance). A compléter. Conty courts >50 000£.

County court > high court : Family division / Chancery division / Queen’s bench decisions

High court > court of appeal ( they are in the same building : royal courts of justice )

Court of appeal > supreme court (before 2005 : House of Lords)

Magistrates courts deal with mine of criminal case. Max six months jail. No innocent : guilty or not guilty

Crown courts : professional juges (kidnapping etc)

The sentence decide by the juge not the jury.

If I’m note satisfate magistrate courts decision I can going to the court of appeal.

Idem for county courts I can appeal to the high court.

Court of appeal > instance case , opportunity to change the precedent.

The highest court in England is the Supreme Court, before it used to be the House of Lords (before 2009). Below the Supreme Court there is the Court of Appeal (which is based in London). Below that court there is the High court of justice. The criminal court for the most import cases is the crown courts, there is a jury in this court. At the bottom there is the magistrates courts, the judges are not professionals judges there are lay people. These court deal with small cases such as shop lifting. The County courts is like the TGI. And then there is also the Magistrates Courts.

When the legal decision is made by the Supreme Court, every court follow that. The court of appeal is bound by herself, except of criminal cases. They are kind of all bound together, except of the Supreme Court.

It is possible to law to be stopped to be bounding. If this one is contrary, it stopes. ( to cease). A precedent can be reverse. It means that you are going to say that the decision made by the first court wasn't great and that you want to referred upper. (infirmer). The court deal with the same case.The high court is going to uphold (confirmer).

A decision can also be overrule. It means that the precedent is changed. Faire un revirement.

( 03/10/14 )

In France, the court can depart the cour de cassation. In the UK the decision must be followed by the lower court. At the time the king was the fountain of justice and he had the power to prevail the court of common law. In practice he didn't decide about all the cases of people who were complaining . ( remedy= damages) The king would not decide by himself. He will referred to the to the chancellor and he was the king of visor. And he was the keeper of the king's conscience. He wasn't a layer but an ecclesiastic. He had the possibility to decide the case on behalf of the king but as he was an ecclesiastic he would not decide the case on fairness as opposed to the common law. On the ground of equity.

A remedy: when you go on court is because you want something and then you ask for damages for a loss suffered (= subir un préjudice). You want somebody to perform a contract (=executer un contrat). If somebody had stolen your horse you could start a legal action but you couldn't get your horse back, you can get money. It was unfair. The chancellor had the power to address the problem and to decide if the horse had to be return to the owner. Ex: during the middle it was common for the king to leave the country in order to fight during the crusades. And he asked the vassals to provide their needs. At the time, a knight, a lord, you have to leave everything. Somebody would have to manage everything that people left. It had to be a man, somebody who the lord trusted. He would give his title of deeds to a person of confidence called a trustee. A title of deeds is a document which proves that you are the owner of something. When the lord was leaving, he would give the document to a trustee. And as the trustee has all the documents, he would suppose to take care of what he had in his charge. And when the lord came back he would give everything back. Very often, the vassal would leave for a long time and when he would come back, the trustee wouldn't giving back to him his processions. To be the owner of a castle you have to had the title of deeds. The vassal wasn't satisfied. He would see the king. Legally speaking the trustee were the owner. The chancellor would create a new treat called an equitable interest. And this title would compete with the title of deeds. The will be two owners of the assets. But in case of conflicts between the common law and equity, equity had to prevail.

Le desavantage est que le systéme de common law etait tres rigide. Chaque writ correspondait à une action donnée. Cela manquait de fléxibilité. Beaucoup de gens se plaignaient. En common law on ne pouvait avoir que des damages soit des dommages et intérets. Le roi pouvait prendre des lois au dessus du common law, mais il ne le faisait pas lui meme. Le chancellier tranchait les litiges sur une base d'équité. Title deeds= les titres de propriétés. Le trustee pouvait