Public law governs the relationship between the individual and the state.
It includes constitutional law, administrative law, tax law, international law and criminal law.
Private law governs the relationship of individuals between themselves.
It includes the law o property and of trusts, family law, the law of contract, company law, and the law of tort.
If a person wishes to take an action against another private person (e. g. for breach of contract) it will fall under private law. This is the case even if one party to the contract is the state. Private individuals include “legal persons” such as companies.
CRIMINAL LAW – CIVIL LAW
A simple distinction between the criminal law and the civil law is that the latter regulates the relationships between individuals or bodies and the former regulates the legal relationship between the state and individual people and bodies.
The first practical difference is seen in the parties to the legal action. A civil case will involve two or more individual people or bodies while the parties to a criminal case will be the state and the individual person or body.
Criminal law is the branch of law that labels certain kinds of harmful (antisocial) conduct as crimes, forbids such conduct and provides for the punishment of people who commit crimes. Criminal law prescribes that certain offences are punishable by the state so that the security of the citizens of the state may be preserved.
A crime (offence) is an act or omission prohibited and punishable by law. Crimes are so harmful that they not only hurt the individual victim, but society as a whole Since the public suffers as a result of the crime, the plaintiff in criminal cases is the people of a state or society as a whole. The people are represented by the state in these cases.
In the English legal system, crimes (customarily termed offences) are divided into:
summary offences – these are the less serious offences such as speeding in a motor vehicle, drunk and disorderly behaviour, common assault, battery, which are triable only in the Magistrates’ Court.
indictable offences –these are the most serious offences such as rape, murder, crimes of sexual deviancy, which must be tried before a judge and jury in the Crown Court.
offences “triable either way” – theft, indecent assault. These offences can be tried in the Magistrates’ Court or in the Crown Court.
Another classification of offences divides them into arrestable offences and nonarrestable offences.
An offence for which there is a fixed mandatory penalty or which carries a sentence of at least five years’ imprisonment is an arrestable offence: treason, murder, manslaughter, rape, kidnapping, incest with a boy under the age of 13, buggery with a boy under the age of 16 or with a person who has not consented, and indecent assault. All other crimes are termed nonarrestable offences.
On the basis of their subject, offences can be also classified into:
Offences against the person (crimes that involve the use or threat of physical force against another person): homicide, infanticide, illegal abortion, causing death by dangerous driving, causing death by careless driving, torture, rape, wounding, causing or inflicting grievous bodily harm, assault, aggravated assault, battery, kidnapping, offences involving indecency (e. g.: keeping a brothel, indecent exposure, indecent assault).
Offences against property (crimes that affect another person’s right of ownership): theft, deception, criminal damage, arson, forgery, forcible entry, burglary, robbery, blackmail.
Offences against public order (crimes that affect the smooth running of orderly society): riot, violent disorder, affray, threatening behaviour, stirring up racial hatred, public nuisance, obstruction of highways.
Offences against the state (crimes that affect the security of the state as a whole): treason, sedition, offences involving official secrets, acts of terrorism.
In the American system, crimes are classified into:
Felonies. A felony is a serious crime against society and is usually punishable by death or imprisonment in a state prison. The crimes classified as felonies are: murder, embezzlement, larceny, bribery, arson.
Misdemeanors. A misdemeanor is a lesser crime, usually punishable by a fine or imprisonment in the county jail, or both. Disorderly conduct, drunkenness, excessive speed driving, simple assault and some types of trespassing fall into this category.
Crimes can also be classified on the basis of the subject of the crime.
Crimes against the person: homicide, manslaughter, mayhem, rape, assault, battery, kidnapping, abduction.
Crimes against habitation: arson, burglary.
Crimes against property: larceny, embezzlement, fraud, robbery, receiving stolen goods, forgery.
Crimes against public authority: obstructing justice, perjury, subornation of perjury, bribery.
There are many theories for punishing criminal behavior:
Punishment is imposed to get revenge with the persons who broke the law;
Punishing the wrongdoer will deter or discourage other people from breaking the law;
Punishment is meant to rehabilitate or reform criminals;
Punishment is imposed to incapacitate criminals by keeping them away from the community (by isolating them).
Civil law identifies circumstances in which individuals may seek remedies from the state or from one another against wrongful acts or omissions which do not necessarily constitute crimes. The civil law exists to protect persons (including companies) against the wrongful acts or omissions of other persons. Civil wrongs are wrongs committed by one person against another in which the aggrieved person may be entitled to damages. These wrongs are of two types: breaches and tort. If a person suffers because another party fails to live up to an agreement, the damages are said to result from a breach of contract and the plaintiff asks the court for relief for damages. If the plaintiff suffers because of a personal injury or damage to personal property or to his / her reputation, the type of damage sustained is known as a tort.
The difference between the criminal law and the civil law is also reflected in the terminology and procedure of the law.
the prosecutor - prosecutes the defendant / accused;
if the defendant is found to be guilty he will be penalised;
the penalty suffered is a punishment / sentence (fines, probation orders, terms of imprisonment, life imprisonment, disqualification – in relation to driving offences);
usually the state prosecutes the person accused of the crime;
prosecution is the name given to criminal proceedings; and the title of the party who commences the action (i. e., the state);
in order to prove that the person accused has committed the criminal offence the prosecution has the burden of proof. All the elements or constituent parts of the offence must be proved by the prosecution beyond reasonable doubt.
the plaintiff / claimant / petitioner (in divorce or company law matters)– sues the defendant / brings an action in court against the defendant;
if the plaintiff is successful –the defendant is said to be liable;
any remedy granted by the court is not usually designed to be punitive but is granted to indemnify the plaintiff for the loss suffered;
remedies include damages (the common law remedy) and equitable remedies, such as an injunction, specific performance and rescission of a contract;
injunction = a court order addressed to a particular person that either prohibits him from doing or continuing to do a certain act (a prohibitory injunction) or orders him to carry out a certain act (a mandatory injunction);
specific performance = a court order to a person to fulfil his obligations under a contract;
rescission of a contract = the setting aside of a contract, which is thereby treated as if it had never existed;
civil proceedings are also called litigation;
suing / commencing proceedings = starting civil action in the courts;
in order to prove that the defendant is liable the plaintiff will commence an action in a civil court.
In a matter of allegation of breach of contract – the plaintiff has to prove the existence of the contract and that the defendant has not performed his duties under it;
If the plaintiff is alleging that the loss has occurred because of the defendant’s negligent act or omission he has to prove all the elements of the tort of negligence;
A further difference between criminal and civil laws is the way that cases are cited.
In the English system there are certain rules for the naming of cases.
more serious crimes are in the name
of the Queen (as representing the state). A criminal case is generally called Reg. v. whomever
it is. (Reg. is the short for
In criminal cases for less serious crimes or in cases tried before magistrates (justices of the peace), the title of the case will not contain Rex or Reg. before the “v.”, but will contain the name of a private person (the actual prosecutor) (e.g. a policeman).
Civil cases will be cited by the names of the parties: Rylands v. Fletcher.
If the Queen / King (as representing the Government) is a party, (s)he is usually called “The Queen” or “The King”: British Coal Corporation v. The King. R. may also be used.
There are conventions in pronouncing the names of cases.
A criminal case,
such as R. v. Sikes, can be referred to informally as “R. v. Sikes” or “Rex
In civil cases the “v.” is pronounced “and”, both in court and out of it. Thus Smith v. Hughes is always pronounced (never written!) “Smith and Hughes”.
In the American system, the title of a case consists of the names of the plaintiffs and the names of the defendants separated by the abbreviation v. or vs. for versus. All the names of the parties must be included in the title of the action. First names and middle initials are customarily stated. If the party’s name is common, his or her full middle name may be given. In subsequent papers, only the name of the first party on each side needs to be stated, followed by an appropriate indication of the other parties, such as et al., or et als., or and others.
E. g.: SAMUEL SMITH, Plaintiff, vs. JOHN JONES, Defendant
ALBERT AGGRIEVED, Plaintiff, vs. CHARLIE CARELESS, et al., Defendant
In criminal law actions the plaintiff is the state or THE PEOPLE OF THE UNITED STATES or THE PEOPLE OF THE STATE OF…
E. g.: THE PEOPLE OF THE STATE OF
Distinction between criminal and civil actions
One incident can give rise to both a criminal and a civil action. If a person is injured at work due to the employer not taking the correct precautions to keep machinery safe this can lead to a criminal prosecution and to civil proceedings.
The employer has a statutory duty to maintain safe working conditions. If the employer fails in this duty, and especially if the failure gives rise to injury, he can be prosecuted in the criminal courts and fined and/or imprisoned.
The criminal action is not designed to compensate the employee for any loss or damage that he may have sustained in the incident but to punish the employer. In order to obtain compensation the employee must start a civil action against the company (e. g. for negligence) in order to recover damages (a cash sum awarded by the court to indemnify the defendant for the loss).
Alan drives home from the pub in his friend Suzie’s car. He has been drinking and he has a level of alcohol in his blood which exceeds the legal limits. He drives in a reckless fashion and has an accident. The accident causes damage to Suzie’s car and he also hits a cyclist who falls off his bike and suffers injury to his head.
In the subsequent legal actions:
a) Who are the parties?
b) How will they have to discharge their burden of responsibility in order to prove Alan’s guilt / liability?
SUBSTANTIVE LAW / PROCEDURAL LAW
Substantive law is the part of the law that deals with rights, duties and all other matters that are not matters purely of practice and procedure.
Procedural law (also called adjective or descriptive law) is the part of law that deals with practice and procedure in courts.
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