英国留学生法学essay写作范文
发布时间：2021-02-07 16:53:03浏览次数：
本文是英国留学生法学essay写作范文节选，英国主要是议会有法律的权力，高等法院的判决对下级法院有约束力，院必然会跟进先前的裁决，特别是由高等法院给出的决定。这就是著名的“遵循先例”原理。
在英国，法律的权力属于议会。然而，法官也能使法律的司法宣判。在英国法律制度下，高等法院的判决对下级法院有约束力。这个原理就是著名的“遵循先例”，意思是立于先前决定的案件。这一原则的重要性在于,法院必然会跟进先前的裁决，特别是由高等法院给出的决定。例如，上诉法院必然会遵循英国最高法院（上议院）所作出的决定。
也可以表示,现在的司法先例已经被以这样一种方式裁决了,它将更便于法官解释法律并且停留在先前的案例是,而现在我们能够根据时间的需求给法官公平公正的判断的空间。
至少所有的决定能够创造一个有说服力的先例,说服力的程度取决于法院的在法律层次结构的地位。例如，来自枢密院司法委员会却不结合委员会的前例不是英国法院的正常层次的一部分（因为该委员会是由9个最高级法官，常任上诉法官（或上议院））。其他的有说服力的先例来源包括外国国家法院的决定。
The Court of Appeal cannot overrule the House of Lords as of precedent,but tried to in(Morris v.Crown Office)(and later in(Miliangos v.George Frank Ltd.)),arguing that a Lords decision must have'overlooked...[or]misunderstood...[the existing common law,and that the Lords decision was]hopelessly illogical and inconsistent',and directed the lower courts to ignore the decision.This attitude was overruled with great vigour,since it was clear that the Lords had not,as claimed,overlooked the existing common law.
(Cassell and Co.Ltd.v.Broome)the House of Lords said that the Court of Appeal could not overrule the House even if it was per incuriam,and in(Miliangos)it rejected the idea that the Court could now overrule on the grounds of'cessante ratione cessat ipsa lex'.
However in(Young v.Bristol Aeroplane Co.Ltd)it was held that the Court of Appeal can depart from its own previous decision subject to the following exceptions:
If there are two previous decisions of Court of Appeal which contradicts with each other,then the Court of Appeal is free to choose from whichever it wishes.
If any decision of the Court of Appeal contradicts with the decision of House of Lords which was not expressly overruled by the House then the Court of Appeal is not bound by its own decision.
If any previous decision of the Court of Appeal is a per incuriam decision then the Court of Appeal is not bound by that decision.
The introduction of European element in the English Legal System has created two more exceptions and they are:
If the decision of the Court of Appeal is in conflict with the direction given by the European Court of Justice(ECJ)then it is free to depart from its own previous decision and follow ECJ.
If any decision of the Court of Appeal is in conflict with the decision of the European Court of
In principle there is no difference in the application of precedent in Court of Appeal Civil and Criminal Division.However the practice of precedent is more flexibly applied in criminal division as an individual's liberty and freedom may be at stake.However the court must show that the previous decision was misunderstood or a new circumstance has evolved which made its decision unsafe.
Decisions of House of Lords(HL)is binding in Court of Appeal(CA)where as the decision of the Privy Council(PC)has mere persuasive authority.In case of any conflict between the HL and PC decision then the CA is bound by the decision given by HL.However,under exceptional circumstances the CA may choose to follow the PC.
In(Davis v.Johnson)Lord Denning said'It is said that,if an error has been made,this court has no option but to continue the error and leave it to be corrected by the House of Lords.
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