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UNIT 2. CIVIL PROCEDURE IN THE UK1. Ответьте на вопросы.What brunch of law would you like to choose as your future profession – civil law or criminal law? What do you know about civil procedure? What is procedural law? How is it distinguished from substantive law? Are there any stages of judicial proceedings that are common to all kinds of hearings? 2. Переведите определение понятия «Гражданский процесс».Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function. TEXT 1Differences between Civil and Criminal Procedure Vocabularyproceeding – судебное разбирательство, судебный процесс to commence – начинать conduct (n.) – поведение, управление a lawsuit – судебное дело, иск, тяжба to overhaul – пересмотреть полностью adversarial – состязательный expert witness – свидетель-эксперт to reserve for – предназначать tribunal – третейский суд tier – уровень иерархии to reverse – отменять судебное решение to uphold – оставить в силе решение суда первой инстанции judicial review – судебный пересмотр to leapfrog – обходить appellant – податель апелляции to encourage – поощрять, стимулировать alternative dispute resolution – альтернативное разрешение споров prematurely – преждевременно, поспешно arbitration – третейское разбирательство mediation – медиация conciliation – примирительная процедура adjudication – вынесение судебного или арбитражного решения expert determination – постановление эксперта injunction – судебный запрет a leave – разрешение to bypass – обходить закон estoppel – лишение права возражения, лишение права ссылаться на какие-либо факты to estop – лишать сторону права ссылаться на какие-либо факты Прочитайте и переведите текст.Criminal and civil procedures are different. Although some systems, including the English and French, allow private persons to bring a criminal prosecution against another person, prosecutions are nearly always started by the state, in order to punish the defendant. Civil actions, on the other hand, are started by private individuals, companies or organizations, for their own benefit. In addition, governments (or their subdivisions or agencies) may also be parties to civil actions. The cases are usually heard in different courts, and juries are not so often used in civil cases. In Anglo-American law, the party bringing a criminal charge (that is, in most cases, the state) is called the "prosecution", but the party bringing most forms of civil action is the "plaintiff" or "claimant". In both kinds of action the other party is known as the "defendant". A criminal case against a person called Ms. Sanchez would be described as “The People v. (="versus", "against" or "and") Sanchez,” "The State (or Commonwealth) v. Sanchez" or "[The name of the State] v. Sanchez" in the United States and “R. (Regina, that is, the Queen) v. Sanchez” in England. But a civil action between Ms. Sanchez and Mr. Smith would be “Sanchez v. Smith” if it was started by Sanchez, and “Smith v. Sanchez” if it was started by Mr. Smith. Most countries make a clear distinction between civil and criminal procedure. For example, a criminal court may force a convicted defendant to pay a fine as punishment for his crime, and the legal costs of both the prosecution and defence. But the victim of the crime generally pursues his claim for compensation in a civil, not a criminal, action. In France and England, however, a victim of a crime may incidentally be awarded compensation by a criminal court judge. Evidence from a criminal trial is generally admissible as evidence in a civil action about the same matter. For example, the victim of a road accident does not directly benefit if the driver who injured him is found guilty of the crime of careless driving. He still has to prove his case in a civil action, unless the doctrine of collateral estoppel applies, as it does in most American jurisdictions. In fact he may be able to prove his civil case even when the driver is found not guilty in the criminal trial, because the standard to determine guilt is higher than the standard to determine fault. However, if a driver is found by a civil jury not to have been negligent, a prosecutor may be estopped from charging him criminally. If the plaintiff has shown that the defendant is liable, the main remedy in a civil court is the amount of money, or "damages", which the defendant should pay to the plaintiff. Alternative civil remedies include restitution or transfer of property, or an injunction to restrain or order certain actions. The standards of proof are higher in a criminal case than in a civil one, since the state does not wish to risk punishing an innocent person. In English law the prosecution must prove the guilt of a criminal “beyond reasonable doubt”; but the plaintiff in a civil action is required to prove his case “on the balance of probabilities”. Thus, in a criminal case a crime cannot be proven if the person or persons judging it doubt the guilt of the suspect and have a reason (not just a feeling or intuition) for this doubt. But in a civil case, the court will weigh all the evidence and decide what is most probable. Переведите на русский язык следующие слова и словосочетания из текста.civil action criminal prosecution service of process pleading motion application deposition disclosure remedy Найдите в тексте английские эквиваленты русским словам и словосочетаниям и используйте их в своих предложениях.судебные издержки компенсация уголовное преследование гражданский иск сомнение признать виновным небрежность (повинность) возмещение убытка восстановление собственности причина Ответьте на вопросы.What is the main difference between civil and criminal procedure? May governments be parties to a civil action? Are the standards of proof higher in a civil or a criminal case? Why? TEXT 2Civil Procedure Rules in the UKПрочитайте текст и передайте его содержание на английском языке. Civil procedure law, being part of procedural law in general, comprises the rules by which a court hears and determines what happens in civil proceedings. In other words, civil procedure is the body of law that sets out the process followed by courts when hearing cases of a civil nature (civil actions). These rules govern how a lawsuit may be commenced, what kind of service of process is required, the types of pleadings , applications and orders allowed in civil cases, the conduct of trials, various available remedies, and how the courts and clerks must function. In the UK, in 1999 the Woolf reform radically overhauled procedure in the civil courts. The reforms were brought about to give effect to the Woolf report, which was produced by a committee chaired by Lord Woolf, the Master of the Rolls. This report found that the civil justice system was slow, expensive, bound by archaic procedures, excessively complicated and generally ill-suited to the needs of clients. The adversarial culture of litigation meant that unnecessary delays and the deliberate running up of expenses were often used as a tactic to defeat the other side. In many types of disputes expensive expert witnesses were routinely produced by each side. Rather than helping the court to resolve a technical problem, these experts were seen as on the side of one or other of the parties and were subjected to partisan pressure by the other party’s lawyers. Lord Woolf`s report concluded that civil justice was in a state of crisis and recommendations were made for sweeping changes. Therefore, the Civil Procedure Rules (CPR) were enacted in 1998 to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. The Civil Procedure Rules apply to all cases commenced after April 26, 1999 and are used by several types of courts. The County Court (or the Small Claims Court) deals with all but the most complicated claims for debt repayment, personal injury, breach of contract, family issues, housing disputes, i.e. mostly cases between people or companies who believe that someone owes them money. The magistrates’ courts also deal with many civil cases, mostly family matters plus liquor licensing and betting and gaming work. More complex civil cases are reserved for trial in the Divisional Courts of the High Court of Justice – the Family Division, the Chancery (property and money cases) and the Queen`s Bench Division (cases involving contracts and negligence). These also have the capacity to hear appeals from lower courts and tribunals (which decide the rights and obligations of private citizens towards each other and a public authority and are inferior to the courts) and bind the courts below them in the hierarchy. The Civil Division of the Court of Appeal (presided over by the Master of the Rolls), as the second highest tier in the English legal system, can reverse or uphold a decision of the lower civil courts. Because the volume of cases coming to the Court of Appeal is higher than that to the Supreme Court, the Master of the Rolls has been said to be the most influential judge in England. Finally, the Supreme Court, as the court of last resort, hears appeals on points of law of general public importance from many areas – commercial disputes, family matters, judicial review claims against public authorities and issues under the Human Rights Act 1998. Civil cases may leapfrog from the High Court to the Supreme Court, bypassing the Court of Appeal. Appellants must, however, apply for leave to appeal. Прочитайте пункты А и B и найдите соответствия видов судов в Америке с их юрисдикцией в Великобритании. A B
Соотнесите английские слова и словосочетания с русскими эквивалентами.
Работа в парах. На основе прочитанного текста обсудите сферы деятельности судов различной юрисдикции в Великобритании и расскажите о них на английском языке. TEXT 3The Reform of the Civil Procedure in the UKПрочитайте и переведите текст “The Reform of The Civil Procedure in the UK”. Ответьте на вопросы. What are civil procedure rules? Which drawbacks of the civil justice system were discovered by the committee chaired by Lord Woolf in 1999? What does the adversarial culture of litigation mean? What was the overriding objective of the changes to the civil justice system? What were the main features of the reform? What kind of cases does the highest appellate court hear? a) What can the Civil Division of the Court of Appeal do with the lower court decision? b) Why is the Master of the Rolls said to be the most influential judge in England? a) What kinds of cases are reserved for trial in the High Court of Justice? What do you know about the structure of the court? b) What capacity does the High Court have? Do cases from the High Court go on appeal directly to the Court of Appeal only? What cases do the magistrates’ courts deal with? What other name does the County Court have? What kind of proceedings does it deal with? What types of ADR are there? One of the main features of the reforms is that the management of the case was removed from the hands of the litigants and passed to the judge. Under this new system of judicial case management the judge’s active management of the case requires him to do the following: encourage the parties to settle the case or part of the case; to identify the true points at issue as early as possible and ensure that issues which do not require litigation are disposed .of before the case is tried; and to ensure that the case proceeds quickly and efficiently. Technology should be used wherever appropriate. As manyaspects of the case as possible should be dealt with on the same occasion and the case may be dealt with without the parties having to attend the court. Procedural errors are not to invalidate any part of the proceedings unless the court exercises its discretion to order that they should. Furthermore, accidental errors or omissions can be corrected at any time and the court may do this on its own initiative. The parties should consider whether some form of alternative dispute resolution (ADR) would be more suitable than litigation, and if so, endeavor to agree which form to adopt. Both the claimant and the defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that; claims should not be issued prematurely when a settlement is still actively being explored. Among the most frequently used ADR methods one should mention the following: arbitration, where an independent, impartial third party hears both parties to a dispute and makes a decision to resolve it. However, arbitration is private rather than public, and some forms of arbitration are decided on the basis of documents only. In most cases, the arbitrator's decision is binding on both parties. mediation, where the disputants, not the mediator, decide the terms of the agreement. The mediator's role, however, is to check carefully that the parties are able to do what they agree to do. Mediation is now the most popular form of alternative dispute resolution in the UK and Europe as it offers solutions beyond those that a court could ordinarily impose. It is increas- ingly used in commercial, personal injury and clinical negligence cases. conciliation involves an impartial third party helping the parties to resolve their problem. They are free to agree to the resolution or not. In consumer disputes, conciliation is the first stage in the arbitration process and the conciliator is usually a member of the trade association. adjudication, where an independent third party considers the claims of both sides and makes a decision. Adjudicators are usually experts in the subject matter in dispute and are not bound by the rules of litigation or arbitration. Their decisions are often interim ones, i.e. they can be finalized using arbitration or another process. Adjudication decisions are usually binding on both parties by prior agreement. expert determination, where an independent third party considers the claims and issues a binding decision. The third party is usually an expert in the subject of the dispute and is chosen by the parties, who agree at the outset to be bound by the expert's decision. It can be most suitable for determining technical aspects of a complex dispute. | to annul by recalling or rescinding to keep or maintain in unaltered condition to jump across to inspire with confidence | directing the course of; managing oppositional; relying on the contest between each advocate representing his or her party`s positions review by a court of law of actions of a government official/entity or of some other legally appointed person/body or the review by an appellate court of the decision of a trial court a witness who has knowledge not normally possessed by the average person concerning the topic that he is to testify about the party who appeals a decision of a lower court a sequence of steps by which legal judgments are invoked, dispute resolution processes and techniques that fall outside the government judicial process, a relative position or degree of value in a
Повторение грамматики. Инфинитив. Сложное подлежащее (Infinitive. Complex Subject). 1. Переведите предложения на русский язык, обращая внимание на «сложное подлежащее». Arbitrators, mediators, and conciliators who specialize in a particular area, such as construction or insurance are expected to have knowledge of that industry and must be able to relate well to people from different cultures and backgrounds. Solicitors are considered to qualify as higher court advocates, and barristers to deal directly with some clients (chiefly other professionals) without the need for the client to see a solicitor first. Legal English proves to be extremely difficult for non-lawyers to understand. If the Court upheld a specific application of a more general law it was considered to uphold the law itself. In a 3-tier application every tier is supposed to interact with only one other tire. The appellate court is supposed to review the record that the lower court relied on. The probability of conviction is assumed to conform to a uniform probability distribution with increasing variability until the trial date. Adjudicators are known to be experts in the subject matter in dispute. People all over the world seem to becoming more and more accustomed to using legal means to regulate the relations with each other. Lawyers try to explain exactly why a judicial decision has been made even when the decision appears to be obvious common sense. Most people are sure to be confident that political views they hold at any particular moments are absolutely right. In America claims against doctors turn to be so common and awards of damages so high, that some doctors are afraid to stop at accidents to help the injured for fear they may be taken to court. After the divorce he is thought to have given a proportion of the proceeds to his wife. The police are supposed to release the suspect provided he appears on a certain day at a certain Magistrates’ Court. Special rules are presumed to interpret contracts in which one or more contractors made a mistake or were pressured or tricked into making a contract. 2. Измените предложения, используя в них оборот «сложное подлежащее».By the term offence we usually understand a crime not indictable but punishable. (to consider) Everyone expects that the federal court will reverse the state judge`s erroneous findings. (to expect) The general opinion was that the court would uphold a practice. (to be likely) The traditional view is that judicial review is concerned with the lawfulness of a decision. (to believe) They suppose that the remedy will be in force for a limited period of 2 years. (to suppose) According to the report, an average judge in the Moscow Arbitrazhniy Court handles around 450 cases a year. (to report) It is said that the defendant`s whereabouts were unknown. (to tell) They say that the trial has been postponed. (to say) Everyone thinks the parties will resort to alternative dispute resolution. (to be sure) A conciliator is now trying to settle their dispute. This was announced yesterday. (to announce) The standards of proof are higher in criminal action then in a civil one. (to turn to be) The victim of a road accident does not directly benefit if the driver who injured him is found guilty of the crime of careless driving. (to appear) Once the plaintiff has shown that the defendant is liable, the main argument in a civil court is about the amount of money, or damages, which the defendant should pay to the plaintiff. (to be sure) The concept of vicarious liability is useful when high damages are sought and the defendant does not have enough money to pay them. (to regard) The plaintiff has to show that he has suffered an action recognized as a tortious one and he has to show that his relation to the tort feasor gives him the legal capacity to sue. (to be certain) |