法律英语名词解释考研复试口语

Common law
Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law) rather than through legislative statutes or executive action
Common law is law created and refined by judges a decision in a currently pending legal case depends on decisions in previous cases and affects the law to be applied in future cases When there is no authoritative statement of the law judges have the authority and duty to make law by creating precedent
The body of precedent is called common law and it binds future decisions In future cases when parties disagree on what the law is an idealized common law court looks to past precedential decisions of relevant courts If a similar dispute has been resolved in the past the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis) If however the court finds that the current dispute is fundamentally distinct from all previous cases it will decide as a matter of first impression Thereafter the new decision becomes precedent and will bind future courts under the principle of stare decisis
In practice common law systems are considerably more complicated than the idealized system described above The decisions of a court are binding only in a particular jurisdiction and even within a given jurisdiction some courts have more power than others For example in most jurisdictions decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court but decisions of nonappellate courts are only nonbinding persuasive authority Interactions between common law constitutional law statutory law and regulatory law also give rise to considerable complexity However stare decisis the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results lies at the heart of all common law systems
Common law legal systems are in widespread use particularly in those nations which trace their legal heritage to Britain including the United Kingdom most of the United States and other former colonies of the British Empire such as India[2] Canada New Zealand Australia and Hong Kong[3]
Injunction
An injunction is an equitable remedy in the form of a court order whereby a party is required to do or to refrain from doing certain acts The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for failing to follow the court＇s order In some cases breaches of injunctions are considered serious criminal offences that merit arrest and possible prison sentences
Misrepresentation
Misrepresentation is a contract law concept It means a false statement of fact made by one party to another party which has the effect of inducing that party into the contract For example under certain circumstances false statements or promises made by a seller of goods regarding the quality or nature of the product that the seller has may constitute misrepresentation A finding of misrepresentation allows for a remedy of rescission and sometimes damages depending on the type of misrepresentation
Estoppel
Estoppel is a legal doctrine at common law where a party is barred from claiming or denying an argument on an equitable ground Estoppel complements the requirement of consideration in contract law In general estoppel protects an aggrieved party if the counterparty induced an expectation from the aggrieved party and the aggrieved party reasonably relied on the expectation and would suffer detriment if the expectation is not met
Also unconscionability by a breaching party is also sufficient to estop the breaching party
Estoppel is a defense that prevents a representor from enforcing legal rights or from relying on a set of facts that would give rise to enforceable rights (eg words said or actions performed) generally only if that enforcement or reliance would be unfair to the representee Because its effect is to defeat generally enforceable legal rights the scope of the remedy is often limited Note however that proprietary estoppel (applicable in English land law) can be both a sword and a shield and the scope of its remedy is wide
For an example of estoppel consider the case of a debtor and a creditor The creditor might unofficially inform the debtor that the creditor forgives the debt Even if such forgiveness is not formally documented the creditor may be estopped from changing its mind and seeking to collect the debt because that change would be unfair In the same way a landlord might inform a tenant that rent has been reduced for example if there was construction or a lapse in utility services If the tenant relies on this notice the landlord could be estopped from collecting the full rent
Estoppel is closely related to the doctrines of waiver variation and election and is applied in many areas of law including insurance banking employment international trade etc In English law the concept of legitimate expectation in the realm of administrative law and judicial review is estoppel＇s counterpart in public law although subtle but important differences exist
This term appears to come from the French estoupail (or a variation) which meant stopper plug referring to placing a halt on the imbalance of the situation The term is related to the verb estop which comes from the Old French term estopper meaning stop up impede Note the similarity between the English terms estop and stop
Case law
Case law (also known as decisional law or judicial precedent) is the general term for the principles and rules of law set forth in judicial opinions from courts of law[1] Case law incorporates courts＇ decisions from individual cases and encompasses courts＇ interpretations of statutes constitutional provisions administrative regulations and in some cases law originating solely from the courts Case law is often published in print law reports or reporters (and increasingly on court websites) to establish precedent rules to apply in future court decisions dealing with similar situations
For countries with a common law legal system such as in the United Kingdom United States and most of the Commonwealth of Nations case law is a major source of law In general courts in common law countries treat the decisions of higher appellate courts as normative laying down rules that should or in some cases must be used to decide similar legal disputes (called binding precedent) In countries with legal systems that follow the civil law tradition derived from Roman law however the courts are not strictly bound by rules and principles from case law
Statute
Statute law is law made by parliaments eg the crimes act 1900 made by nsw parliament
A statute is a formal written enactment of a legislative authority that governs a country state city or county [1] Typically statutes command or prohibit something or declare policy The word is often used to distinguish law made by legislative bodies from the judicial decisions of the common law and the regulations issued by Government agencies[1] Statutes are sometimes referred to as legislation or black letter law As a source of law statutes are considered primary authority (as opposed to secondary authority)
Before a statute becomes law in some countries it must be agreed upon by the highest executive in the government and finally published as part of a code In many countries statutes are organized in topical arrangements (or codified) within publications called codes such as the United States Code In the United States statutory law is distinguished from and subordinate to constitutional law
Agency (law)
Agency is an area of commercial law dealing with a contractual or quasicontractual tripartite or noncontractual set of relationships when an agent is authorized to act on behalf of another (called the Principal) to create a legal relationship with a Third Party[1] Succinctly it may be referred to as the relationship between a principal and an agent whereby the principal expressly or impliedly authorizes the agent to work under his control and on his behalf The agent is thus required to negotiate on behalf of the principal or bring him and third parties into contractual relationship This branch of law separates and regulates the relationships between
· Agents and Principals
· Agents and the Third Parties with whom they deal on their Principals＇ behalf and
· Principals and the Third Parties when the Agents purport to deal on their behalf
The common law principle in operation is usually represented in the Latin phrase qui facit per alium facit per se ie the one who acts through another acts in his or her own interests and it is a parallel concept to vicarious liability and strict liability in which one person is held liable in Criminal law or Tort for the acts or omissions of another
Good faith
Good faith or in Latin bona fides (bona fide means in good faith) is the mental and moral state of honesty conviction as to the truth or falsehood of a proposition or body of opinion or as to the rectitude or depravity of a line of conduct This concept is important in law especially equitable matters[1]
In contemporary English bona fides is sometimes used as a synonym for credentials background or documentation of a person＇s identity Show me your bona fides can mean Why should I trust you (your good faith in this matter) Tell me who you are In this sense the phrase is sometimes used in job advertisements and should not be confused with the bona fide occupational qualifications or the employer＇s good faith effort as described below[2]
Commissioner
Commissioner is in principal the title given to the holder of a commission in the sense of a mandate whether individually or shared notably as member of a collegial commission
In practice the title of commissioner has evolved to include a variety of senior officials often sitting on a specific commission In particular commissioner frequently refers to senior police or government officials A High Commissioner is equivalent to an ambassador between Commonwealth states sharing the same Monarch as head of state
The title is also sometimes given to senior officials in the private sector for instance many North American sports leagues
Partnership
A partnership is a type of business entity in which partners (owners) share with each other the profits or losses of the business undertaking in which all have invested Partnerships are often favored over corporations for taxation purposes as the partnership structure does not generally incur a tax on profits before it is distributed to the partners (ie there is no dividend tax levied) However depending on the partnership structure and the jurisdiction in which it operates owners of a partnership may be exposed to greater personal liability than they would as shareholders of a corporation
Joint and several liability
Under joint and several liability a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment This means that if the claimant pursues one defendant and receives payment that defendant must then pursue the other obligors for a contribution to their share of the liability
Joint and several liability is most relevant in tort claims whereby a plaintiff may recover all the damages from any of the defendants regardless of their individual share of the liability The rule is often applied in negligence cases though it is sometimes invoked in other areas of law
In the United States 46 of the 50 states have a rule of joint and several liability although in response to tort reform efforts some have limited the applicability of the rule
Tort

Tort law is the name given to a body of law that addresses and provides remedies for civil wrongs not arising out of contractual obligations[1] A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible or liable for those injuries Generally speaking tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another＇s injury Torts cover intentional acts and accidents
For instance Alice throws a ball and accidentally hits Brenda in the eye Brenda may sue Alice for losses occasioned by the accident (eg costs of medical treatment lost income during time off work pain and suffering etc) Whether or not Brenda wins her suit depends on if she can prove Alice engaged in tortious conduct Here Brenda would attempt to prove Alice had a duty and failed to exercise the standard of care which a reasonable person would render in throwing the ball
One of the main topics of the substance of tort law is determining the standard of care a legal phrase that means distinguishing between when conduct is or is not tortious Put another way the big issue is whether a person suffers the loss from his own injury or whether it gets transferred to someone else
Going back to the example above if Alice threw the ball at Brenda on purpose Brenda could sue for the intentional tort of battery If it was an accident Brenda must prove negligence To do this Brenda must show that her injury was reasonably foreseeable that Alice owed Brenda a duty of care not to hit her with the ball and that Alice failed to meet the standard of care required
In much of the western world the touchstone of tort liability is negligence If the injured party cannot prove that the person believed to have caused the injury acted with negligence at the very least tort law will not compensate them Tort law also recognizes intentional torts and strict liability which apply to defendants who engage in certain actions
In tort law injury is defined broadly Injury does not just mean a physical injury such as where Brenda was struck by a ball Injuries in tort law reflect any invasion of any number of individual interests This includes interests recognized in other areas of law such as property rights Actions for nuisance and trespass to land can arise from interfering with rights in real property Conversion and trespass to chattels can protect interference with movable property Interests in prospective economic advantages from contracts can also be injured and become the subject of tort actions A number of situations caused by parties in a contractual relationship may nevertheless be tort rather than contract claims such as breach of fiduciary duty
Tort law may also be used to compensate for injuries to a number of other individual interests that are not recognized in property or contract law and are intangible This includes an interest in freedom from emotional distress privacy interests and reputation These are protected by a number of torts such as infliction privacy torts and defamation Defamation and privacy torts may for example allow a celebrity to sue a newspaper for publishing an untrue and harmful statement about him Other protected interests include freedom of movement protected by the intentional tort of false imprisonment
The equivalent of tort in civil law jurisdictions is delict[2] The law of torts can be categorised as part of the law of obligations but unlike voluntarily assumed obligations (such as those of contract or trust) the duties imposed by the law of torts apply to all those subject to the relevant jurisdiction To behave in ＇tortious＇ manner is to harm another＇s body property or legal rights or possibly to breach a duty owed under statute One who commits a tortious act is called a tortfeasor[3] Torts is one of the American Bar Association mandatory first year law school courses[4]
Piercing the corporate veil
The corporate law concept of piercing (lifting) the corporate veil describes a legal decision where a shareholder or director of a corporation is held liable for the debts or liabilities of the corporation despite the general principle that shareholders are immune from suits in contract or tort that otherwise would hold only the corporation liable This doctrine is also known as disregarding the corporate entity The phrase relies on a metaphor of a veil that represents the veneer of formalities and dignities that protect a corporation which can be disregarded at will when the situation warrants looking beyond the legal fiction of a corporate person to the reality of other persons or entities who would otherwise be protected by the corporate fiction
Piercing the corporate veil is not the only means by which a director or officer of a corporation can be held liable for the actions of the corporation Liability can be established through conventional theories of contract agency or tort law For example in situations where a director or officer acting on behalf of a corporation personally commits a tort he and the corporation are jointly liable and it is unnecessary to discuss the issue of piercing the corporate veil
The doctrine is often used in cases where liability is found but the corporation is insolvent
Parent company
A parent company is a company that owns enough voting stock in another firm to control management and operations by influencing or electing its board of directors the second company being deemed as a subsidiary of the parent company The definition of a parent company differs from jurisdiction to jurisdiction with the definition normally being defined by way of laws dealing with companies in that jurisdiction
Subsidiary
A subsidiary in business matters is an entity that is controlled by a bigger and more powerful entity The controlled entity is called a company corporation or limited liability company and the controlling entity is called its parent (or the parent company) The reason for this distinction is that a lone company cannot be a subsidiary of any organization only an entity representing a legal fiction as a separate entity can be a subsidiary While individuals have the capacity to act on their own initiative a business entity can only act through its directors officers and employees
The most common way that control of a subsidiary is achieved is through the ownership of shares in the subsidiary by the parent These shares give the parent the necessary votes to determine the composition of the board of the subsidiary and so exercise control This gives rise to the common presumption that 50 plus one share is enough to create a subsidiary There are however other ways that control can come about and the exact rules both as to what control is needed and how it is achieved can be complex (see below) A subsidiary may itself have subsidiaries and these in turn may have subsidiaries of their own A parent and all its subsidiaries together are called a group although this term can also apply to cooperating companies and their subsidiaries with varying degrees of shared ownership
Subsidiaries are separate distinct legal entities for the purposes of taxation and regulation For this reason they differ from divisions which are businesses fully integrated within the main company and not legally or otherwise distinct from it
An operating subsidiary is a business term frequently used within the United States railroad industry In the case of a railroad it refers to a company that is a subsidiary but operates with its own identity locomotives and rolling stock
In contrast a nonoperating subsidiary would exist on paper only (ie stocks bonds articles of incorporation) and would use the identity and rolling stock of the parent company
Branch
A branch is a woody structural member connected to but not part of the central trunk of a tree (or sometimes a shrub) Large branches are known as boughs and small branches are known as twigs
While branches can be nearly horizontal vertical or diagonal the majority of trees have upwardly diagonal branches
Articles of Incorporation
The Articles of Incorporation (sometimes also referred to as the Certificate of Incorporation or the Corporate Charter) are the primary rules governing the management of a corporation in the United States and are filed with a state or other regulatory agency The equivalent in the United Kingdom and various other countries is Articles of Association
Bylaw
A bylaw (sometimes also spelled bylaw or byelaw) most commonly refers to a city or municipal law or ordinance passed under the authority of a charter or provincialstate law specifying what things may be regulated by the municipality
Liability

In the most general sense a liability is anything that is a hindrance or puts individuals at a disadvantage It can also be used as a slang term to describe someone that puts a team or group of which they are a member at a disadvantage and would thus be better off without
Capital (economics)
In economics capital or capital goods or real capital refers to factors of production used to create goods or services that are not themselves significantly consumed (though they may depreciate) in the production process Capital goods may be acquired with money or financial capital In finance and accounting capital generally refers to financial wealth especially that used to start or maintain a business
Authorised capital
The authorised capital of a company (sometimes referred to as the authorised share capital or the nominal capital particularly in the United States) is the maximum amount of share capital that the company is authorised by its constitutional documents to issue to shareholders Part of the authorised capital can (and frequently does) remain unissued
The part of the authorised capital which has been issued to shareholders is referred to as the issued share capital of the company
Share capital
Share capital or issued capital (UK English) or capital stock (US English)[1] refers to the portion of a company＇s equity that has been obtained (or will be obtained) by trading stock to a shareholder for cash or an equivalent item of capital value For example a company can set aside share capital to exchange for computer servers instead of directly purchasing the servers from existing equity
The paidup capital does not speak about the shares
Preferred stock
Preferred stock also called preferred shares or preference shares is typically a ＇higher ranking＇ stock than voting shares and its terms are negotiated between the corporation and the investor
Preferred stock usually carries no voting rights[1][2] but may carry superior priority over common stock in the payment of dividends and upon liquidation Preferred stock may carry a dividend that is paid out prior to any dividends being paid to common stock holders Preferred stock may have a convertibility feature into common stock Preferred stockholders will be paid out in assets before common stockholders and after debt holders in bankruptcy Terms of the preferred stock are stated in a Certificate of Designation
Consolidation (business)
Consolidation or amalgamation is the act of merging many things into one In business it often refers to the mergers or acquisitions of many smaller companies into much larger ones The financial accounting term of consolidation refers to the aggregated financial statements of a group company as consolidated account The taxation term of consolidation refers to the treatment of a group of companies and other entities as one entity for tax purposes Under the Halsbury＇s Laws of England ＇amalgamation＇ is defined as a blending together of two or more undertakings into one undertaking the shareholders of each blending company becoming substantially the shareholders of the blended undertakings There may be amalgamations either by transfer of two or more undertakings to a new company or to the transfer of one or more companies to an existing company Thus the two concepts are substantially the same However the term amalgamation is more common when the organizations being merged are private schools or regiments
Nonexecutive director
A nonexecutive director (NED also NXD) or outside director is a member of the board of directors of a company who does not form part of the executive management team He or she is not an employee of the company or affiliated with it in any other way They are differentiated from inside directors who are members of the board also serving as executive managers of the company (most often as corporate officers)
Business judgment rule
The business judgment rule is an American case lawderived concept in Corporations law whereby the directors of a corporation are clothed with [the] presumption which the law accords to them of being [motivated] in their conduct by a bona fide regard for the interests of the corporation whose affairs the stockholders have committed to their charge[1] and whereby a court will refuse to review the actions of a corporation＇s board of directors in managing the corporation unless there is some allegation of conduct that the directors violated their duty of care to manage the corporation to the best of their ability The burden is on the party challenging the decision to establish facts rebutting the presumption[2]
Derivative suit
A shareholder derivative suit is a lawsuit brought by a shareholder on behalf of a corporation against a third party Often the third party is an insider of the corporation such as an executive officer or director Shareholder derivative suits are unique because under traditional corporate law management is responsible for bringing and defending the corporation against suit Shareholder derivative suits permit a shareholder to initiate a suit when management has failed to do so Because derivative suits vary the traditional roles of management and shareholders many jurisdictions have implemented various procedural requirements to derivative suits
Mergers and acquisitions
The phrase mergers and acquisitions (abbreviated M&A) refers to the aspect of corporate strategy corporate finance and management dealing with the buying selling and combining of different companies that can aid finance or help a growing company in a given industry grow rapidly without having to create another business entity
Contract
A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law It is a binding legal agreement [1] That is to say a contract is an exchange of promises for the breach of which the law will provide a remedy
Agreement is said to be reached when an offer capable of immediate acceptance is met with a mirror image acceptance (ie an unqualified acceptance) The parties must have the necessary capacity to contract and the contract must not be either trifling indeterminate impossible or illegal Contract law is based on the principle expressed in the Latin phrase pacta sunt servanda (usually translated pacts must be kept but more literally agreements are to be kept)[2] Breach of contract is recognized by the law and remedies can be provided Sometimes written contracts are required such as when buying a house[3] However most contracts can be and are made orally such as purchasing a book or a sandwich Contract law can be classified as is habitual in civil law systems as part of a general law of obligations (along with tort unjust enrichment or restitution)
Consideration
Consideration is a concept of legal value in contract law It is a promised action or omission of action that the promisee did not already have a preexisting duty to abide by It can take the form of money physical objects services or a forbearance of action Both parties to a contract must pass consideration to the other party for there to be a valid contract
However even if a court decides there is no contract there might be a possible recovery under Quantum meruit (sometimes referred to as a Quasicontract) or promissory estoppel
Proprietary estoppel
The traditional version of proprietary estoppel arises in relation to rights to use the land of the owner and may even be effective in connection with disputed transfers of ownership So if
· one party represents that he or she is transferring an interest in land to another but what is done has no legal effect or
· merely promises at some time in the future to transfer land or an interest in land to another and
· knows that the other party will spend money or otherwise act to his or her detriment in reliance on the supposed or promised transfer
an estoppel may arise Thus in Dillwyn v Llwellyn (1862) 4 De GF& J 517 CA a father promised a house to his son who took possession and spent a large sum of money improving the property The father never actually transferred the house to the son When his father died the son claimed to be the equitable owner and the court ordered the testamentary trustees to convey the land to him In Wilmott v Barber (1880) 15 Ch D 96 Fry J considered that five elements had to be established before proprietary estoppel could operate
· the plaintiff must have made a mistake as to his legal rights
· the plaintiff must have done some act of reliance
· the defendant the possessor of a legal right must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff
· the defendant must know of the plaintiff＇s mistaken belief and
· the defendant must have encouraged the plaintiff in his act of reliance
Although proprietary estoppel was only traditionally available in disputes affecting title to real property it has now gained limited acceptance in other areas of law Proprietary estoppel is closely related to the doctrine of constructive trust (see now Cobbe v Yeoman＇s Row [2008] UKHL 55)
The term proprietary estoppel is not used in American law but is part and parcel of the general doctrine of promissory estoppel In English law proprietary estoppel is distinct from promissory estoppel
Mistake (contract law)

In contract law a mistake is an erroneous belief at contracting that certain facts are true It may be used as grounds to invalidate the agreement Common law has identified two different types of mistake in contract unilateral mistake and mutual mistake sometimes called common mistake
Misrepresentation
Misrepresentation is a contract law concept It means a false statement of fact made by one party to another party which has the effect of inducing that party into the contract For example under certain circumstances false statements or promises made by a seller of goods regarding the quality or nature of the product that the seller has may constitute misrepresentation A finding of misrepresentation allows for a remedy of rescission and sometimes damages depending on the type of misrepresentation
According to Gordon v Selico (1986) 18 HLR 219 it is possible to make a misrepresentation either by words or by conduct although not everything said or done is capable of constituting a misrepresentation Generally statements of opinion or intention are not statements of fact in the context of misrepresentation[1] If one party claims specialist knowledge on the topic discussed then it is more likely for the courts to hold a statement of opinion by that party as a statement of fact[2]
Liquidated damages
Liquidated damages (also referred to as liquidated and ascertained damages) are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (eg late performance)
When damages are not predeterminedassessed in advance then the amount recoverable is said to be ＇at large＇ (to be agreed or determined by a court or tribunal in the event of breach)
Parol evidence rule
The parol evidence rule is the legal application of a rule of substantive law in contract cases that prevents a party to a written contract from contradicting (or sometimes adding to) the terms of the contract by seeking the admission of evidence extrinsic (outside) to the contract For example Carl agrees in writing to sell Betty a car for 1000 Betty argues that Carl told her that she would only need to pay Carl 800 The parol evidence rule would generally prevent Betty from testifying to this conversation because the testimony (800) would directly contradict the written contract＇s terms (1000)
Frustration of purpose
In the law of contracts frustration of purpose is a defense to enforcement of the contract Frustration of purpose occurs when an unforeseen event undermines a party＇s principal purpose for entering into a contract and both parties knew of this principal purpose at the time the contract was made Despite frequently arising as a result of government action any third party (or even nature) can frustrate a contracting party＇s primary purpose for entering into the contract
Warranty
In commercial and consumer transactions a warranty is an obligation or guarantee that an article or service sold is as factually stated or legally implied by the seller and that often provides for a specific remedy such as repair or replacement in the event the article or service fails to meet the warranty A breach of warranty occurs when the promise is broken ie a product is defective or not as should be expected by a reasonable buyer
Anticipatory repudiation
Anticipatory repudiation (or anticipatory breach) is a term in the law of contracts that describes a declaration by one party (the promising party) to a contract that she does not intend to live up to her obligations under the contract Where such an event occurs the other party (the performing party) to the contract is excused from having to fulfill his obligations However the repudiation can be retracted by the promising party so long as there has been no material change in the position of the performing party in the interim A retraction of the repudiation restores the performer＇s obligation to perform on the contract
Tender offer
Tender offer is a corporate finance term denoting a type of takeover bid The tender offer is a public open offer (usually announced in a newspaper advertisement) by an acquirer to all stockholders of a publicly traded corporation to tender their stock for sale at a specified price during a specified time subject to the tendering of a minimum and maximum number of shares In tender offers the bidder contacts shareholders directly inviting them to sell their shares at an offer price The directors of the company may or may not have endorsed the tender offer proposal In the United States tender offers are regulated by the Williams Act
Acceptance
Acceptance usually refers to cases where a person experiences a situation or condition (often a negative or uncomfortable situation) without attempting to change it protest or exit The term is used in spirituality in Eastern religious concepts such as Buddhist mindfulness and in human psychology Religions and psychological treatments often suggest the path of acceptance when a situation is both disliked and unchangeable or when change may be possible only at great cost or risk Acceptance may imply only a lack of outward behavioral attempts at possible change but the word is also used more specifically for a felt or hypothesized cognitive or emotional state Thus someone may decide to take no action against a situation and yet be said to have not accepted it
Fundamental breach
A fundamental breach of a contract sometimes known as a repudiatory breach is a breach so fundamental that it permits the distressed party to terminate performance of the contract in addition to entitling that party to sue for damages
Lien
In law a lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation The owner of the property who grants the lien is referred to as the lienor and the person who has the benefit of the lien is referred to as the lienee
Treaty
A treaty is an agreement under international law entered into by actors in international law namely states and international organizations A treaty may also be known as (international) agreement protocol covenant convention exchange of letters etc Regardless of the terminology all of these international agreements under international law are equally treaties and the rules are the same (Note that in United States constitutional law the term treaty has a special meaning which is more restricted than its meaning in international law see below)
Treaties can be loosely compared to contracts both are means of willing parties assuming obligations among themselves and a party to either that fails to live up to their obligations can be held liable under international law for that breach The central principle of treaty law is expressed in the maxim pacta sunt servanda—pacts must be respected
A sovereign state is a political association with effective sovereignty over a geographic area and representing a population A state usually includes the set of institutions that claim the authority to make the rules that govern the people of the society in that territory though its status as a state often depends in part on being recognized by a number of other states as having internal and external sovereignty over it
Selfdefense (or selfdefence — see spelling differences) is the act of defending oneself one＇s property or the wellbeing of another from physical harm[1] While the term may define any form of personal defense it is strongly associated with civilian handtohand[dubious – discuss] defense techniques Selfdefense defines a civilian activity as opposed to Handtohand combat in a military context
Territorial jurisdiction in United States law refers to a court＇s power over events and persons within the bounds of a particular geographic territory If a court does not have territorial jurisdiction over the events or persons within it then the court cannot bind the defendant to an obligation or adjudicate any rights involving them Territorial jurisdiction is to be distinguished from subjectmatter jurisdiction which is the power of a court to render a judgment concerning a certain subject matter or personal jurisdiction which is the power of a court to render a judgment concerning particular persons wherever they may be Unlike subjectmatter jurisdiction territorial jurisdiction may be waived even unintentionally by a defendant Personal jurisdiction territorial jurisdiction subjectmatter jurisdiction and proper notice to the defendant are prerequisites for a valid judgment
Personal jurisdiction (United States)
Personal jurisdiction in United States law refers to a court＇s power over a particular defendant (in personam jurisdiction) or an item of property (in rem jurisdiction) If a court does not have personal jurisdiction over a defendant or property then the court cannot bind the defendant to an obligation or adjudicate any rights over the property Personal jurisdiction is to be distinguished from subjectmatter jurisdiction which is the power of a court to render a judgment concerning a certain subject matter or territorial jurisdiction which is the power of a court to render a judgment concerning events that occurred within a territory Unlike subjectmatter jurisdiction personal jurisdiction may be waived even unintentionally by a defendant Personal jurisdiction territorial jurisdiction subjectmatter jurisdiction and proper notice to the defendant are the most fundamental constitutional prerequisites for a valid judgment
Universal jurisdiction
Universal jurisdiction or universality principle is a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state regardless of nationality country of residence or any other relation with the prosecuting country The state backs its claim on the grounds that the crime committed is considered a crime against all which any state is authorized to punish as it is too serious to tolerate jurisdictional arbitrage The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes or owed to the entire world community as well as the concept of jus cogens that certain international law obligations are binding on all states and cannot be modified by treaty
State immunity
The rules of state immunity concern the protection which a state is given from being sued in the courts of other states The rules relate to legal proceedings in the courts of another state not in a state＇s own courts The rules developed at a time when it was thought to be an infringement of a state＇s sovereignty to bring proceedings against it or its officials in a foreign country But there are now substantial exceptions to the rule of immunity in particular a state can be sued when the dispute arises from a commercial transaction entered into by a state or some other nonsovereign activity of a state The new United Nations Convention on Jurisdictional Immunities of States and their Property which is not yet in force formulates the rules and the exceptions to them It does not cover criminal proceedings and it does not allow civil actions for human rights abuses against state agents where the abuse has occurred in another country
Succession of states
Succession of states is a theory in international relations regarding the recognition and acceptance of a newly created state by other states based on a perceived historical relationship the new state has with a prior state The theory has its root in 19th century diplomacy
State property
State property is property owned by the state Such property may also referred to crown property In most states the state owns zoos libraries schools and parks some is reserved for restricted use such as military bases and research laboratories
Government debt (also known as public debt or national debt) is money (or credit) owed by any level of government either central government federal government municipal government or local government
Nationality is a the relationship between a person and their state of origin culture association affiliation andor loyalty Nationality affords the state jurisdiction over the person and affords the person the protection of the state
National treatment
National treatment is a principle in customary international law vital to many treaty regimes It essentially means treating foreigners and locals equally Under national treatment if a state grants a particular right benefit or privilege to its own citizens it must also grant those advantages to the citizens of other states while they are in that country In the context of international agreements a state must provide equal treatment to those citizens of other states that are participating in the agreement Imported and locallyproduced goods should be treated equally — at least after the foreign goods have entered the market[1]
Diplomatic protection
In international law diplomatic protection (or diplomatic espousal) is a means for a State to take diplomatic and other action against another State on behalf of its national whose rights and interests have been injured by the other State Diplomatic protection which has been confirmed in different cases of the Permanent Court of International Justice and the International Court of Justice is a discretionary right of a State and may take any form that is not prohibited by international law It can include consular action negotiations with the other State political and economic pressure judicial or arbitral proceedings or other forms of peaceful dispute settlement
Extradition
Extradition is the official process by which one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal Between nation states extradition is regulated by treaties Among subnational regions (for example the individual states of the US) where extradition is required by law it is more accurately known as rendition
Right of asylum
Right of asylum (or political asylum) is an ancient juridical notion under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority a foreign country or Church sanctuaries (as in medieval times) Political asylum should not be mistaken with modern refugee law which rather deals with massive influx of population while the right of asylum concerns individuals and is usually delivered in a casetocase basis[
Condominium
A condominium or condo is a form of housing tenure and other real property where a specified part of a piece of real estate (usually of an apartment house) is individually owned while use of and access to common facilities in the piece such as hallways heating system elevators exterior areas is executed under legal rights associated with the individual ownership and controlled by the association of owners that jointly represent ownership of the whole piece Colloquially the term is often used to refer to the unit itself in place of the word apartment A condominium may be simply defined as an apartment that the tenant owns as opposed to rents
Internal waters
A nation＇s internal waters covers all water and waterways on the landward side of the baseline from which a nation＇s territorial waters is defined[citation needed] It includes waterways such as rivers and canals and sometimes the water within small bays According to the United Nations Convention on the Law of the Sea the coastal nation is free to set laws regulate any use and use any resource Foreign vessels have no right of passage within internal waters and this lack of right to innocent passage is the key difference between internal waters and territorial waters[
International Rivers
International Rivers is a nonprofit nongovernmental environmental and human rights organization based in Berkeley California Founded in 1985 by a host of social and environmental activists International Rivers works with a global network of policy and financial analysts scientists journalists development specialists local citizens and volunteers to address destructive dams and their legacies in over 60 countries
Territorial waters
Territorial waters or a territorial sea as defined by the 1982 United Nations Convention on the Law of the Sea[1] is a belt of coastal waters extending at most twelve nautical miles from the baseline (usually the mean lowwater mark) of a coastal state The territorial sea is regarded as the sovereign territory of the state although foreign ships (both military and civilian) are allowed innocent passage through it this sovereignty also extends to the airspace over and seabed below
Prescription (law)
Prescription (law) is the method of sovereignty transfer of a territory through international law analogous to the common law doctrine of adverse possession for private realestate Prescription involves the open encroachment by the new sovereign upon the territory in question for a prolonged period of time acting as the sovereign without protest or other contest by the original sovereign This doctrine legalizes de jure the de facto transfer of sovereignty caused in part by the original sovereign＇s extended negligence andor neglect of the area in question Prescription can also be said to have occurred when in the context of a territorial dispute the situation has developed to such a degree that to restore sovereignty to the original rightful sovereign would disrupt the established order to such a degree as to be unfeasible hence the transfer of sovereignty de jure to the new sovereign
Cession
Most broadly cession (to cede) is the assignment of property to another entity In international law it commonly refers to land transferred by treaty Cession is a surrender a yielding a giving up[1] It is voluntary as opposed to annexation which is forcible[
Selfdetermination
Selfdetermination is defined as free choice of one’s own acts without external compulsion and especially as the freedom of the people of a given territory to determine their own political status or independence from their current state In other words it is the right of the people of a certain nation to decide how they want to be governed without the influence of any other country [1] The latter is a complex concept with conflicting definitions and legal criteria for determining which groups may legitimately claim the right to selfdetermination[2] This often coincides with various nationalist movements
Referendum
A referendum (plural referendums or referenda) ballot question or plebiscite (from Latin plebiscita originally a decree of the Concilium Plebis) is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal This may result in the adoption of a new constitution a constitutional amendment a law the recall of an elected official or simply a specific government policy The referendum or plebiscite is a form of direct democracy ideally favouring the majority
Innocent passage
Innocent passage is a concept in admiralty law which allows for a vessel to pass through the territorial waters of another state subject to certain restrictions The United States Department of Defense defines innocent passage as
The right of all ships to engage in continuous and expeditious surface passage through the territorial sea and archipelagic waters of foreign coastal states in a manner not prejudicial to its peace good order or security Passage includes stopping and anchoring but only if incidental to ordinary navigation or necessary by force majeure or distress or for the purpose of rendering assistance to persons ships or aircraft in danger or distress
Contiguous zone
The contiguous zone is a band of water extending from the outer edge of the territorial sea to up to 24 nautical miles (44 km) from the baseline within which a state can exert limited control for the purpose of preventing or punishing infringement of its customs fiscal immigration or sanitary laws and regulations within its territory or territorial sea This will typically be 12 nautical miles (22 km) wide but could be more (if a state has chosen to claim a territorial sea of less than 12 nautical miles) or less if it would otherwise overlap another state＇s contiguous zone However unlike the territorial sea there is no standard rule for resolving such conflicts and the states in question must negotiate their own compromise The United States invoked a contiguous zone on 24 September 1999[2]
An exclusive economic zone extends for 200 nautical miles (370 km) beyond the baselines of the territorial sea thus it includes the territorial sea and its contiguous zone[3] A coastal nation has control of all economic resources within its exclusive economic zone including fishing mining oil exploration and any pollution of those resources However it cannot regulate or prohibit passage or loitering above on or under the surface of the sea whether innocent or belligerent within that portion of its exclusive economic zone beyond its territorial sea Before 1982 coastal nations arbitrarily extended their territorial waters in an effort to control activities which are now regulated by the exclusive economic zone such as offshore oil exploration or fishing rights (see Cod War) Indeed the exclusive economic zone is still popularly though erroneously called a coastal nation＇s territorial watersContinental shelf
The continental shelf of a coastal nation extends out to its continental margin but at least 200 nautical miles (370 km) from the baselines of its territorial sea The continental margin is defined by a series of points not more than 60 nautical miles (111 km) apart where the thickness of sedimentary rocks is at least one per cent of the height of the continental shelf above the foot of the continental slope but not more than 60 nautical miles (110 km) inshore from it The foot of the continental slope is where the maximum change in the gradient of the seabed occurs The continental margin cannot exceed 350 nautical miles (648 km) beyond the baselines of the territorial sea or 100 nautical miles (185 km) beyond the 2500metre depth unless natural components of the continental margin such as its plateaux rises caps banks and spurs but not submarine ridges are farther out The coastal nation has control of all resources on or under its continental shelf living or not but no control over any living organisms above the shelf that are beyond its exclusive economic zone[4] Ireland has become one of the first countries to define its continental shelf in accordance with the UN convention[
Protocols
In international law and international relations a protocol is generally a treaty or international agreement that supplements a previous treaty or international agreement A protocol can amend the previous treaty or add additional provisions Parties to the earlier agreement are not required to adopt the protocol sometimes this is made clearer by calling it an optional protocol especially where many parties to the first agreement do not support the protocol
Declaration (law)
In law a declaration ordinarily refers to a judgment of the court or an award of an arbitration tribunal is a binding adjudication of the rights or other legal relations of the parties which does not provide for or order enforcement Where the declaration is made by a court it is usually referred to as a declaratory judgment Less commonly where declaratory relief is awarded by an arbitrator it is normally called a declaratory award
Retorsion
Retorsion (French rétorsion from Latin retortus (influenced by Late Latin 1585–95 torsi a twisting wringing) [1] A phrase used in International Law is an act perpetrated by one nation upon another in retaliation or reprisal for a similar act perpetrated by the other nation The typical methods of retorsion are the use of comparably severe measures against citizens of the foreign nation found within the borders of the retaliating nation[
Reprisal
In warfare a reprisal is a limited and deliberate violation of the laws of war to punish an enemy who has already broken them A legally executed reprisal is not an atrocity
To be legally justified a reprisal can only be directed against the party carrying out the original violation can only be carried out as a last resort after having given formal notice of the planned reprisal must be proportionate to the original violation must have the aim of persuading the original violator to comply with the legally accepted behavior in future and must not continue after the illegal behavior ends
Mediation a form of alternative dispute resolution (ADR) or appropriate dispute resolution aims to assist two (or more) disputants in reaching an agreement The parties themselves determine the conditions of any settlements reached— rather than accepting something imposed by a third party The disputes may involve (as parties) states organizations communities individuals or other representatives with a vested interest in the outcome
Mediators use appropriate techniques andor skills to open andor improve dialogue between disputants aiming to help the parties reach an agreement (with concrete effects) on the disputed matter Normally all parties must view the mediator as impartial
Disputants may use mediation in a variety of disputes such as commercial legal diplomatic workplace community and family matters
A thirdparty representative may contract and mediate between (say) unions and corporations When a workers’ union goes on strike a dispute takes place and the corporation hires a third party to intervene in attempt to settle a contract or agreement between the union and the corporation
Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute (including future interest disputes) agree to utilize the services of a conciliator who then meets with the parties separately in an attempt to resolve their differences Conciliation differs from arbitration in that the conciliation process in and of itself has no legal standing and the conciliator usually has no authority to seek evidence or call witnesses usually writes no decision and makes no award
Conciliation differs from mediation in that the main goal is to conciliate most of the time by seeking concessions In mediation the mediator tries to guide the discussion in a way that optimizes parties needs takes feelings into account and reframes representations
In conciliation the parties seldom if ever actually face each other across the table in the presence of the conciliator
Arbitration a form of alternative dispute resolution (ADR) is a legal technique for the resolution of disputes outside the courts wherein the parties to a dispute refer it to one or more persons (the arbitrators arbiters or arbitral tribunal) by whose decision (the award) they agree to be bound It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides[1] Other forms of ADR include mediation (a form of settlement negotiation facilitated by a neutral third party) and nonbinding resolution by experts It is more helpful however simply to classify arbitration as a form of binding dispute resolution equivalent to litigation in the courts and entirely distinct from the other forms of dispute resolution such as negotiation mediation or determinations by experts which are usually nonbinding Arbitration is most commonly used for the resolution of commercial disputes particularly in the context of international commercial transactions The use of arbitration is far more controversial in consumer and employment matters where arbitration is not voluntary but is instead imposed on consumers or employees through fineprint contracts denying individuals of their right to access the courts
Arbitration can be either voluntary or mandatory and can be either binding or nonbinding Nonbinding arbitration is on the surface similar to mediation However the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise the arbitrator remains totally removed from the settlement process and will only give a determination of liability and if appropriate an indication of the quantum of damages payable
Legal guardian
A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person called a ward Usually a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy incapacity or disability Most countries and states have laws that provide that the parents of a minor child are the legal guardians of that child and that the parents can designate who shall become the child＇s legal guardian in the event of death
Obligation
An obligation is a requirement to take some course of action whether legal or moral There are also obligations in other normative contexts such as obligations of etiquette social obligations and possibly in terms of politics where obligations are requirements which must be fulfilled These are generally legal obligations which can incur a penalty for unfulfilment although certain people are obliged to carry out certain actions for other reasons as well whether as a tradition or for social reasons Obligations vary from person to person for example a person holding a political office will generally have far more obligations than an average adult citizen who themselves will have more obligations than a child Obligations are generally granted in return for an increase in an individual’s rights or power
仅供参考

文档香网(httpswwwxiangdangnet)户传

《香当网》用户分享的内容，不代表《香当网》观点或立场，请自行判断内容的真实性和可靠性！
该内容是文档的文本内容，更好的格式请下载文档