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Legal English - ebook/pdf
Legal English - ebook/pdf
Autor: Liczba stron: 459
Wydawca: C. H. Beck Język publikacji: polski
ISBN: 978-83-255-5519-1 Data wydania:
Kategoria: ebooki >> prawo i podatki >> literatura obcojęzyczna
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Książka przeznaczona jest dla prawników oraz studentów prawa, którym potrzebna jest znajomość specjalistycznego prawniczego języka angielskiego. Publikacja oparta jest na nowoczesnych metodach nauczania języków obcych. Może być pomocna w przygotowaniach do zdawania egzaminów TOLES oraz ILEC.

English is the dominant language of the international legal practice and corporate business world. Therefore, its importance cannot be underestimated and that is why the need to learn in particular the specialised legal English has been growing for the past few years. However, the language of law is much different from the every-day language irrespective of the country. What’s more, the legal concepts vary from country to country and therefore it may lead to many misunderstandings and linguistic problems which puzzle the learners.

I have written this book to assist practicing lawyers, students of law, translators as well as anyone interested in law who wish to develop their English language skills within a legal context (both for academic and vocational training purposes).

Therefore this book is intended to help understand the legal terminology and phrases as well as some major differences between both systems. Moreover, it provides the users with a chance to practice communication skills in spoken and written legal English to enable them to read and draft legal text, discuss and explain legal concepts and so to operate with confidence within the business, especially corporate, and legal environment.

The book is composed of 14 units – each unit discusses a different aspect of corporate law through introduction of relevant terminology, presentation of adequate texts, real court cases as well as numerous exercises which encourage the learner to put the newly acquired vocabulary into practice both through oral as well as written expression. Competence is developed throughout this book in a sequence of ascending complexity.

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Małgorzata Cyganik LEGAL English 2nd edition LEGAL English Małgorzata Cyganik LEGAL English 2nd edition Wydawnictwo C. H. Beck Warszawa 2013 Wydawca: Anna Wieczorek Redakcja i korekta: Dominika Baczyńska Dominika Drygas © Wydawnictwo C. H. Beck 2013 Wydawnictwo C. H. Beck Sp. z o.o. ul. Bonifraterska 17, 00-203 Warszawa Skład i łamanie: DTP Service Druk i oprawa: Elpil, Siedlce ISBN 978-83-255-5518-4 ISBN e-book 978-83-255-5519-1 Contents s t n e t n o C V Unit 1: Unit 2: Unit 3: Sources of Company Law \ 1 1. Introductory note \ 3 2. Text focus \ 8 3. Discussion \ 11 4. Vocabulary focus \ 12 5. Reading for detail \ 17 6. Quick quiz \ 21 7. Plain English vs. legalese \ 22 8. Rephrasing \ 26 9. Writing focus \ 27 10. Build your legal glossary \ 29 11. Branches of law \ 31 12. Unit quiz \ 32 Classification of Companies and Partnerships \ 35 1. Introductory note \ 37 2. Text focus \ 37 3. Discussion \ 43 4. Vocabulary focus \ 44 5. Choosing a form of organisation \ 47 6. Reading for detail \ 50 7. Quick quiz \ 54 8. Writing focus \ 54 9. Rephrasing \ 59 10. Build your legal glossary \ 60 11. Branches of law \ 62 12. Unit quiz \ 62 Formation and Incorporation \ 65 1. Introductory note \ 67 2. Text focus \ 71 3. Discussion \ 76 4. Vocabulary focus \ 78 5. Branches of law \ 82 6. Reading for detail \ 84 s t n e t n o C VI Unit 4: Unit 5: Unit 6: 7. Quick quiz \ 86 8. Writing focus \ 87 9. Rephrasing \ 91 10. Build your legal glossary \ 93 11. Branches of law \ 94 12. Unit quiz \ 95 Company Governing Bodies \ 97 1. Introductory note \ 99 2. Text focus \ 100 3. Discussion \ 107 4. Vocabulary focus \ 108 5. Duties of directors \ 111 6. Reading for detail \ 115 7. Quick quiz \ 116 8. Writing focus \ 117 9. Rephrasing \ 123 10. Build your legal glossary \ 124 11. Branches of law \ 125 12. Unit quiz \ 126 The Corporate Veil \ 129 1. Introductory note \ 131 2. Text focus \ 133 3. Discussion \ 137 4. Vocabulary focus \ 138 5. Legal professions \ 141 6. Reading for detail \ 145 7. Quick quiz \ 148 8. Writing focus \ 149 9. Rephrasing \ 154 10. Build your legal glossary \ 155 11. Branches of law \ 156 12. Unit quiz \ 157 Agency \ 159 1. Introductory note \ 161 2. Text focus \ 164 3. Discussion \ 168 4. Vocabulary focus \ 169 5. Court systems \ 172 6. Reading for detail \ 179 7. Quick quiz \ 181 8. Writing focus \ 181 9. Rephrasing \ 185 10. Build your legal glossary \ 186 s t n e t n o C VII Unit 7: Unit 8: Unit 9: Unit 10: 11. Branches of law \ 188 12. Unit quiz \ 188 Consolidation \ 191 Ultra Vires Doctrine \ 205 1. Introductory note \ 207 2. Text focus \ 207 3. Discussion \ 210 4. Vocabulary focus \ 210 5. Civil litigation \ 214 6. Reading for detail \ 218 7. Quick quiz \ 222 8. Rephrasing \ 223 9. Writing focus \ 226 10. Build your legal glossary \ 229 11. Branches of law \ 230 12. Unit quiz \ 231 Company Financial Structure \ 235 1. Introductory note \ 237 2. Text focus \ 240 3. Discussion \ 243 4. Vocabulary focus \ 244 5. Going public and insider trading \ 248 6. Reading for detail \ 251 7. Quick quiz \ 252 8. Writing focus \ 253 9. Rephrasing \ 256 10. Build your legal glossary \ 257 11. Branches of law \ 259 12. Unit quiz \ 259 Corporate Financial Statements \ 261 1. Introductory note \ 263 2. Text focus \ 265 3. Discussion \ 270 4. Vocabulary focus \ 271 5. Taxes \ 274 6. Reading for detail \ 277 7. Quick quiz \ 279 8. Writing focus \ 280 9. Rephrasing \ 283 10. Build your legal glossary \ 283 11. Branches of law \ 285 12. Unit quiz \ 286 s t n e t n o C VIII Unit 11: Unit 12: Unit 13: Unit 14: Answer Key \ 397 M A and Reorganisations \ 289 1. Introductory note \ 291 2. Text focus \ 292 3. Discussion \ 299 4. Vocabulary focus \ 300 5. Alternative Dispute Resolution \ 303 6. Reading for detail \ 306 7. Quick quiz \ 311 8. Writing focus \ 311 9. Rephrasing \ 313 10. Build your legal glossary \ 314 11. Branches of law \ 316 12. Unit quiz \ 316 Corporate Contracts \ 319 1. Introductory note \ 321 2. Text focus \ 324 3. Discussion \ 328 4. Vocabulary focus \ 328 5. How to secure a contract? \ 332 6. Quick quiz \ 335 7. Reading for detail \ 336 8. Rephrasing \ 344 9. Writing focus \ 345 10. Build your legal glossary \ 348 11. Branches of law \ 350 12. Unit quiz \ 351 Insolvency and Winding-up \ 353 1. Introductory note \ 355 2. Text focus \ 357 3. Discussion \ 361 4. Vocabulary focus \ 362 5. Sample statement of claim for debt recovery \ 365 6. Reading for detail \ 368 7. Writing focus \ 372 8. Quick quiz \ 377 9. Rephrasing \ 378 10. Build your legal glossary \ 379 11. Branches of law \ 380 12. Unit quiz \ 381 Consolidation \ 385 Unit 1 Sources of Company Law Contents: 1. Introductory note \ 3 – Introduction – Definition of law 2. Text focus \ 8 Company law 3. Discussion \ 11 Scope of company law 1 4. Vocabulary focus \ 12 – Legal acts – Types of business entities – Confusing words a) prescribe, proscribe, ban b) delete, waive, set aside, repeal, cease, resign c) set forth, provide, stipulate 5. Reading for detail \ 17 6. Quick quiz \ 21 7. Plain English vs. legalese \ 22 – Legalese and grammar – modal verbs and legalese 8. Rephrasing \ 26 9. Writing focus \ 27 10. Build your legal glossary \ 29 11. Branches of law \ 31 The constitutional law 12. Unit quiz \ 32 Introductory note Practice 1 Before you read, think how law is created and what the sources of law in the legal system of your country are. While reading, try to answer these questions: 1. What is the major difference between the Anglo-Saxon and continental law? 2. Which type of law, enacted or common, prevails in the Anglo-Saxon system? 3. What is a precedent? 4. How do the courts influence the law both in the Anglo-Saxon and continental systems? 5. What is a custom? In the United Kingdom and in the United States of America, the system of law is divided into enacted law (the law contained in law-making instruments, a.k.a. statutory law) and com- mon law1 (especially a major part of the law in nations with a history as British territories or colonies. It includes extensive non-statutory law reflecting precedent derived from centuries of judgments by judges hearing real cases). In the United Kingdom enacted law is composed of the Acts of Parliament and so-called delegated legislation (a.k.a. subordinate delegation), which includes statutory instruments, such as rules, orders or regulations issued by a government or its agencies. These laws do not necessarily apply to the entire area of the United Kingdom – their scope may cover the terri- tory of England and Wales, Scotland and/or Northern Ireland – and the area covered by the particular law is determined in the document. Another important feature of the English legal system is the lack of a written constitution. It is an area of uncodified law, consisting of both written and unwritten sources. There is no technical difference between ordinary statutes and law considered “constitutional law”. The lack of a central written constitutional document explaining the fundamental principles of the state and the relationship between its institu- tions and between the people leads some constitutionalists to regard the United Kingdom as having “no (formal) constitution”. The phrase “unwritten constitution” is sometimes used, despite the fact that the UK constitution incorporates many written sources, statutory law being considered the most important source of the constitution. But it remains the case that the constitution relies far more on unwritten constitutional conventions than virtually any other liberal democratic constitution. Common law in the UK comprises two important elements: common law based on the rules of law built upon decisions of courts [precedents] (a judicial judgment includes ratio decidenti 1 It is also referred to as judge-made law, case law, decisional law or precedent law. 3 Sources of Company Law 1 t i n U 4 and obiter dictum; ratio decidenti is the source of law to be applied by subsequent judges and includes the motive which determined the judgment; obiter dictum consists of a judge’s opinion on this particular case) and the rules of equity which constitute a set of legal principles that are also applied in the countries that follow the British common law tradition. Rules of eq- uity supplement the strict application of the rules of law where this application is considered harsh, so as to achieve so-called “natural justice”. As law applies legal doctrines or statutes to judge a particular case, equity, with its emphasis on fairness and flexibility, has only general guidelines, known as the maxims of equity. In modern practice, the most important distinc- tion between law and equity is the set of remedies (measures employed to enforce a right or redress, i.e. compensate for, an injury) each offers (for example a court of law can award financial damages whereas equity enters injunctions or decrees that either direct someone to act or forbid them from acting). Only a judge can dispense equitable remedies, as it is a matter of law. The distinction between “legal” and “equitable” remedy (a.k.a. relief) is an important aspect of common law systems, including the American legal system. In the event that the enacted law does not deliver a norm of conduct in a given case, a norm of precedent applies and if there is no such norm, then the judge hearing the case lays down a new precedent. We also must not forget about the importance of a custom in common law as a basis for so called implied terms, which derive directly from the letter of law or a custom as opposed to explicit terms (a.k.a. express terms), the terms included in a particular document in black and white. American common law derives from British common law and law of equity. In the United States of America enacted law is composed of a number of law-making instruments2, such as the Federal Constitution, statutes, executive orders, rules, regulations and ordinances. Moreover, the legal system is divided into federal and state law. The state statutes constitute an important part of enacted law in the USA. However, although a few uniform acts which aim to unify the U.S. law do exist (e.g. the RMBCA3), not all states have adopted them. Similarly to the UK, common law applies in cases not governed by enacted law. The usage of a habitual or customary practice also constitutes an important element of American law. Moreover, in the Anglo-Saxon system of law, the judgments are binding: (a) only upon the courts of a lower instance than the court which pronounced it and only on the courts of the same state (except for the federal courts) (b) if they are holdings included in opinions of ap- pellate courts i.e. courts of higher instance to which an appeal may be lodged. Polish law is formed exclusively by enacted law. The main sources of Polish law are: the Constitution, acts and ordinances. Precedent law does not exist in the Polish legal system although the judicature (i.e. rulings and resolutions of courts designated to administer justice) of higher courts and tribunals (e.g. the Constitutional Tribunal, the Supreme Court, the Supreme Administrative Court), whose rulings are not law-creating and refer only to a particular case, de facto play an 2 A.k.a. legal acts, legislative documents. 3 The Revised Modern Business Corporation Act. important role in the interpretation of the above-mentioned legal acts. Exceptions include the Resolutions of the Seven Justices of the Supreme Court which became a rule of law. Moreover, the Civil Code provides for the application of principles of community life (i.e. principles which individuals must obey in order not to violate the rights of other members of the society) and commonly-accepted customs. Additionally, as far as Polish and British law are concerned, we must not forget about the role of the European Union law and the impact of its binding instruments, such as regulations, directives and decisions, on those legal systems. Practice 2 Choose the correct answer: 1. Anglo-Saxon law a. is contained in written and b. is based on precedents c. is created by courts unwritten rules 2. Delegated legislation is contained in a. acts enacted by Parliament b. documents issued by public authorities other than Parliament c. orders of the Council of Ministers 5 3. The courts in Poland a. participate in the creation b. have great influence on the c. show how law should be of new laws legal system interpreted 4. The UK a. does not have a Constitu- b. has a written Constitution tion c. has a Constitution which relies on unwritten con- ventions and other docu- ments 5. Uniform acts in the USA a. must be adopted by all the b. are a part of federal law c. try to unify law within the states country Sources of Company Law Practice 3 1 t i n U On the basis of the above text define the following terms: a. enacted law b. common law c. precedent d. implied terms e. explicit terms f. custom g. legal acts h. binding i. appellate courts 6 j. judicature k. principles of community life l. uniform act m. regulation n. directive o. decision Practice 4 Every legal system contains regulations designed to govern the conduct of people. Below you will find several short definitions of law and law-related terms. Decide which definition is the most accurate and justify your choice. Find the best definition: 1. Law (a) is formed by a set of rules and norms of conduct (b) lays down the rules which prohibit, permit or regulate particular actions and relationships among various persons/entities (c) is designed to eliminate, minimise and punish the breaking of commonly accepted rules and to bring about justice (d) is divided into substantive and procedure laws (e) is administered by a system of courts and representatives of public administration (f) all of the above 2. Separation of Powers (a) the division of authority into legislative, executive and judicial branches vested in particular state authorities by the national constitution (b) the division of rights between the members of an organisation (c) another term for “corporate governance” 3. Legislative initiative (a) the power granted by a competent state authority to propose legislation (b) the power granted by the constitution to propose legislation (c) the proposal of a new law (known as a bill) 7 4. Applicable provisions of law (a) legal stipulations which regulate the mode of conduct in a particular situation (b) rules which are prescribed by law and have to be absolutely followed and obeyed in any situation (c) rules of law which are relevant in a particular case and which bind the persons involved in the activity described by these rules 5. Administration of law (a) directing and controlling the implementation of the law (b) public authorities responsible for creating the law (c) ruling 6. Enforcement of law (a) compelling observance of the law (b) implementing the law (c) causing a legal action to happen by force Sources of Company Law 1 t i n U Text focus Company law4 Company law concerns the forming, organising, operating, merging, dividing and winding-up of companies5. Moreover, it governs the relationships among various constituents of a com- pany, i.e. members of its governing bodies. Company law is also sometimes strictly connected to securities law, which governs the conditions whereunder companies may issue shares and raise capital, and bankruptcy law, which lays down the procedures to be followed in the event a company gets into severe financial trouble. A company (AmE: corporation) is a legal entity created under the laws of the country or state it is incorporated within; although it is a legal artifice, it can be compared to an “artificial person” that can sue or be sued, conclude contracts, and perform other actions necessary to conduct its business operations. It has a separate legal identity from its members (owners/sharehold- ers). Although the term “company” refers only to incorporated entities, colloquially it is often used to refer to any business entity (e.g. it is often used to refer to Polish partnerships since both companies and partnerships are regulated by one and the same code). 8 The UK sole trader partnership – general partnership – limited partnership – limited liability partnership company – private limited by shares (Ltd.) – private limited by guarantee (Ltd.) – private unlimited company (Ltd.) – public limited company (PLC) In the UK, a company in the legal context means an entity formed and registered under the Companies Act or an existing company (a company formed on the basis of previously existing 4  AmE: the corporate law or corporation law; Pl: partnerships and companies law (a.k.a. commercial com- panies law). 5  In Poland also partnerships, as the companies and partnerships are governed by the same Code of Partner- ships and Companies (a.k.a. Commercial Companies Code). acts), registered in the Registrar of Companies held by Companies House6. The UK company law is mainly a creature of statute and the most important statute is the Companies Act7. English business entities may adopt the following legal structures: from the sole trader, through partnerships (general, limited and limited liability) to companies (private limited by shares or by guarantee or unlimited company, or a public company). The USA limited liability company (LLC) sole proprietor partnership – general partnership (GP) – limited partnership (LP) – limited liability partnership (LLP) – limited liability limited partnership (LLLP) corporation – private – public – S corporation (for tax purposes the status of C corporation may be chosen) 9 In the United States, the term “corporation” generally refers to incorporated business entities, or entities chartered under the laws of a particular state. The corporate law of a state where a corporation was incorporated generally governs that corporation (even if the corporation’s operations take place outside that state8). Despite some attempts to unify corporate law in the USA (e.g. the Revised Model Business Corporation Act9, which was adopted by many states), the corporate laws of various states differ. Therefore, some states, notably Delaware, are more attractive for businessmen than others and for this reason most American public corporations have been incorporated there. The federal law of the United States and local laws may also form applicable sources of corporate law. Business entities in the USA may take the form of a sole proprietorship, partnerships (general partnership, limited partnership, limited liability partnership and limited liability limited partnership), a limited liability company (LLC), and corporations (private and public) including S corporation and C corporation which are subject to different taxation rules. All these business entities are governed by a separate relevant statute. 6 (all internet links were last verified on 27 June 2013). 7 It may be downloaded at 8  A corporation which operates in the state of domicile is called a domestic corporation, and a corporation which operates in another state, in that state is referred to as a foreign corporation. 9  It may be found at (all internet links were last reviewed on 27 June 2013). Sources of Company Law 1 t i n U 10 Poland sole proprietor partnership – general partnership – limited partnership – professional partnership – limited joint-stock partnership company – limited liability company – joint-stock company • listed • unlisted private business partnership In Poland, the Code of Partnerships and Companies10 governs the formation, existence and termination of commercial law business entities, which are divided into partnerships and companies. The Code of Partnerships and Companies applies to both groups of these business entities. However, there is another important source of law, the Civil Code, which governs private business partnerships. This type of business entity is not a legal entity but constitutes an agreement between two or more individuals who aim to achieve a common objective. Polish commercial law business entities are divided into partnerships (general partnership, professional partnership, limited partnership, limited joint-stock partnership) and companies (a limited liability company and a joint-stock company which may be listed or unlisted i.e. its shares may be traded (or not) on the stock exchange market). Practice 5 Decide whether the following statements are true or false: 1. In the legal context, a sole trader is a company. 2. Federal law is a key element of American corporate law. 3. Relations between a company and its directors are determined by company law. 4. The English (BrE) term “company” means an entity incorporated under the Companies Act. 5. “Corporation” is an American term for a “company”. 6. Some states, such as Delaware, are more attractive for business than other. 7. The Revised Model Business Corporation Act has not been adopted by all the U.S., states. T / F               8. Delaware’s corporate law is very attractive for the incorporation of a corporation.   10 Also called the Commercial Companies Code. 9. Polish private partnerships are governed by the Code of Partnerships and Companies. T / F   10. Poland’s so called Commercial Companies Code applies to both companies and   partnerships. Practice 6 Match the terms with the definitions: 1. formation 2. merger 3. private company 4. public company 5. raise capital 6. securities law a. a company whose shares are not offered to the general public b. liquidating the company’s affairs c. a holder of a company’s equity d. the law governing the trade in e.g. shares e. in general, the process of two entities becoming one f. a company listed on the stock exchange whose shares are offered to the general public (not to be confused with a state-owned company) 7. shareholder 8. winding-up g. the process of creating and incorporating an entity h. to acquire capital from e.g. shareholders’ contributions, bank loans or 11 from the general public Discussion Scope of company law Decide which areas are covered by company law; prepare a brief overview for a potential client; try to use the phrases given below: • company formation • penal liability • merger • division • organisation • management • trading in securities • contract formation • profit-sharing • resolving disputes • performing contracts • acquiring goods • declaring insolvency • finance raising Sources of Company Law
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