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서명 : (조익제 변호사와 함께 영어로 읽는)미국법 입문. Vol.1 - Vol.2 Part One: Basic Topics Chapter One Classification and sources of English law Ⅰ. Introduction = 1 Ⅱ. The classification of English law = 2 1. Private law and public law = 2 2. Civil law and criminal law = 2 3. Common law and equity = 4 Ⅲ. The sources of English law = 5 1. Legislation = 6 a) The supremacy of Parliament = 6 b) The statutory process = 7 c) Delegated legislation = 8 d) The interpretation of statutes = 9 2. Judicial precedents = l2 a) Absolute binding effect = 13 b) Distinguishing, approving and overruling precedents = 17 (aa) Distinguishing precedents = 17 (bb) Approving precedents = 18 (cc) Overruling precedents = 18 3. Custom = 19 a) General custom and usage = 20 b) Local custom = 20 c) Conventional custom = 21 4. Books of authority = 22 Ⅳ. Further reading = 23 Chapter Two The administration of the law Ⅰ. Common law and equity = 25 1. Historical background = 25 2. The Common law = 26 a) Itinerant justices = 26 b) The common law courts = 26 c) The System of writs = 28 3. Equity = 30 a) The term = 30 b) The principles of equity = 31 (aa) History = 31 (bb) Rules of equity = 33 4. Further development of common law and equity = 36 Ⅱ. The modern organisation of the royal courts = 36 1. The inferior courts = 39 a) The County Courts = 39 b) Magistrates' courts = 41 2. The Superior Courts = 41 a) The Supreme Court of Judicature = 41 (aa) The High Court of Justice = 41 (bb) The Crown Court = 44 (cc) The Court of Appeal = 45 (dd) The House of Lords = 46 3. The Judicial Committee of the Privy Council = 47 Ⅲ. Further reading = 49 Chapter Three The legal profession Ⅰ. History = 50 Ⅱ. Barristers = 54 1. Development = 54 2. The Inns of Court = 54 a) Origin = 54 b) Organisation = 55 3. Education = 56 4. Fields of Activities = 58 Ⅲ. Solicitors = 59 1. Fields of activities = 59 2. Organisation = 60 3. Education = 61 Ⅳ. Judges = 62 1. Appointment = 63 2. Salaries = 64 3. Immunity = 65 4. Dismissal = 65 5. Function = 67 Ⅴ. Other personnel of English law = 69 1. The Attorney-General and the Solicitor-General = 69 2. The Director of Public Prosecutions = 69 3. Magistrates = 69 Ⅵ. Further reading = 70 Chapter Four How to find the law Ⅰ. Law reports = 71 1. Introduction = 71 2. Law reporting = 72 a) Pre-1865 Reports = 73 b) "The modern period" (since 1865) = 75 3. How to use law reports = 77 Ⅱ. Statutes = 80 1. Statute collections = 80 2. Methods of citation = 81 Ⅲ. Further reading = 82 Part Two: Specific branches of law Chapter Five Persons in law Ⅰ. Introduction = 83 Ⅱ. Natural persons = 84 1. Unborn persons = 84 2. Infants and minors = 84 a) Minority and majority = 84 b) Rights and liabilities of minors under the civil law = 85 (aa) Law of contract = 85 (bb) Law of torts = 85 (cc) Property rights = 86 (dd) Litigation right = 86 (ee) Marriage = 86 (ff) Wills = 86 c) Miscellaneous rights and liabilities of minors outside civil law = 86 (aa) Voting = 86 (bb) Criminal law = 86 (cc) Passports = 87 (dd) Driving = 87 (ee) "Enjoyments" (civil liberties) = 87 3. Persons of unsound mind = 89 4. Bankrupts = 91 5. Aliens = 92 Ⅲ. Juristic Persons = 92 1. Corporations = 93 a) Corporation sole = 93 b) Corporation aggregate = 93 c) Creation of corporations = 94 (aa) By Royal Charter = 94 (bb) By specific statute = 94 (cc) By registration under the Companies Acts = 94 d) Effect of incorporation = 95 2. Unincorporated associations = 98 3. Partnerships = 98 4. Differences between corporations and partnerships = 99 a) Personality = 99 b) Management = 99 c) Contractual capacity = 99 d) Liability = 99 e) Profit = 99 f) Members = 99 g) Termination or dissolution = 100 5. Conclusion = 101 Ⅳ. Further reading = 101 Chapter Six The law of contract Ⅰ. Introduction = 102 Ⅱ. Historical background = 102 Ⅲ. Contracts requiring a specific form = 105 1. Contracts which must be in writing = 105 2. Contracts which must be evidenced in writing = 105 3. Contracts which must be made by deed = 106 Ⅳ. Formation of the contract and consideration = 107 1. Offer = 108 a) Range of offerees = 108 b) Distinction between offer and invitation to treat = 109 c) Formulation and communication of an offer = 111 (aa) Formulation = 111 (bb) Communication = 111 d) Termination of an offer = 112 e) Revocation of an offer = 113 2. Acceptance = 114 a) Absolute and unqualified acceptance = 114 b) Communication of acceptance = 115 c) Prescribed method of acceptance = 116 d) Offer and acceptance by use of post = 117 3. Consideration = 118 a) Consideration must not be past = 119 b) Consideration must move from the promisee = 120 c) Consideration must be real, but need not be adequate = 121 d) Deficiencies of the doctrine of consideration = 123 e) Equity: The rule of promissory estoppel = 126 4. Intention to create legal relations = 131 a) Family or "domestic" agreements = 132 b) Advertisement = 134 c) Commercial and business agrements = 135 Ⅴ. Capacity to contract = 137 1. Infants/Minors = 138 a) Binding contracts = 138 (aa) Contracts for necessaries = 139 (bb) Contracts for the minor's benefit = 140 b) Voidable contracts = 141 c) Void (unenforceable) contracts = 143 2. Persons of unsound mind and dunks = 143 3. Corporations = 145 a) Introduction = 145 b) Kinds of corporation = 145 (aa) Chartered corporations = 145 (bb) Statutory corporations = 145 (cc) Registered (limited) companies = 145 c) The doctrine of ultra vires = 146 Ⅵ. The contents of contracts = 149 1. Introduction = 149 2. Terms and representations = 149 3. The kinds of terms = 150 a) Express terms = 150 b) Implied terms = 154 (aa) Terms implied by statute = 156 (bb) Terms implied by common law = 156 (cc) Terms implied by custom = 157 c) Conditions, warranties and innominate terms = 158 (aa) Conditions = 158 (bb) Warranties = 159 (cc) Innominate terms = 160 4. Exemption (or exclusion) clauses = 162 a) Exemption clauses at common law = 163 b) Exemption clauses and fundamental breach of contract = 166 c) Exemption clauses under the Unfair Contract Terms Act 1977 = 168 (aa) Scope of the UCTA = 168 (bb) Clauses rendered ineffective by UCTA = 169 d) Exemption clauses and reasonableness = 170 e) The unfair terms in consumer contract regulations 1995 = 173 Ⅶ. Simple (formless) contracts with mistakes and misrepresentations = 174 1. Miscellaneous = 174 2. Void and voidable contracts = 174 a) Mistake = 175 (aa) Mistakes as to the subject-matter = 176 (bb) Mistakes as to the existence of the subject-matter = 176 (cc) Mistakes as to the nature of the contractual document = 176 (dd) Mistake as to the identity of the other party = 177 b) Misrepresentation = 179 (aa) Fraudulent misrepresentation = 180 (bb) Negligent misrepresentation = 180 (cc) Innocent misrepresentation = 181 (dd) Silence as misrepresentation = 182 3. Unenforceable contracts = 183 Ⅷ. Duress and undue influence = 184 1. Duress = 184 2. Undue influence = 186 Ⅸ. Illegality and public policy = 188 1. Contracts forbidden by statute = 188 2. Contracts illegal at common law = 189 a) Contracts to commit a crime or tort = 190 b) Contracts to corrupt public lift = 191 c) Immoral contracts = 191 d) Contracts tending to impede the administration of justice = 192 e) Contracts of trade with the enemy = 193 f) Contacts in restraint of trade = 193 (aa) Contracts of employment = 193 (bb) Contracts for the sale of a business = 194 (cc) Solus agreements = 195 Ⅹ. Discharge of a contract = 196 1. Performance = 196 2. Agreement = 199 a) Discharge by deed and accord and satisfaction = 200 b) Discharge where neither side has performed = 200 c) Discharge on occurrence of specific events = 200 3. Breach = 200 4. Frustration (or impossibility) = 201 XI. Remedies for breaches of contract = 203 1. Damages = 203 2. Injunction = 206 3. Specific Performance = 207 4. Rescission = 208 XII. Privity of contract = 209 1. General rule = 209 2. Exceptions = 213 a) Action by a beneficiary under a trust = 213 b) Certain insurance contracts = 213 c) Negotiable instruments = 214 d) Price-maintenance agreements = 214 e) Assignment = 215 XIII. Further reading = 216 Index = 219 Chapter Four Sales = 1 Part 1 : Introduction = 1 A. Subject Matter of Article 2 = 1 Ⅰ. Sale = 1 Ⅱ. Goods = 1 Ⅲ. "Goods" attached to realty = 2 B. Definitions = 2 Ⅰ. Merchants = 2 Ⅱ. Good Faith = 3 Part 2 : Formation = 3 A. Offer and Acceptance = 3 Ⅰ. Firm Offer = 3 Ⅱ. Medium of Acceptance = 5 Ⅲ. Acceptance by Performance = 5 Ⅳ. Battle of the Forms = 6 B. Defenses = 7 Ⅰ. Statute of Frauds = 7 Ⅱ. Unconscionability = 8 Ⅲ. Statute of Limitations = 8 C. Parol Evidence Rule = 8 D. Terms of the Contract = 9 E. Modification = 10 Part 3 : Performance of the Contract = 12 A. Performance by Seller = 12 Ⅰ. Shipment by Seller = 12 Ⅱ. Noncarrier Cases = 12 Ⅲ. Repudiation = 13 B. Performance by Buyer = 14 Ⅰ. Acceptance and Payment of Goods = 14 Ⅱ. Right of Inspection = 14 Part 4 : Remedies = 16 A. Seller's Prelitigation Remedies = 16 Ⅰ. Right to Withhold Delivery or Demand Cash Payment = 16 Ⅱ. Reclamation of Goods = 16 Ⅲ. Stoppage in Transit = 17 Ⅳ. Identifying Conforming Goods = 17 Ⅴ. Resale = 17 Ⅵ. Cancellation = 17 B. Buyer's Prelitigation Remedies = 18 Ⅰ. Sale of Goods to Recover = 18 Ⅱ. Cover = 18 Ⅲ. Recoupment = 19 C. Seller's Litigation Remedies = 19 Ⅰ. Action for Full Purchase Price = 19 Ⅱ. Action for Damages for Nonacceptance = 20 D. Buyer's Litigation Remedies = 22 Ⅰ. Possessory Actions = 22 Ⅱ. Action for Damages for Nondelivery = 23 E. Limitation of Remedies = 24 Ⅰ. Liquidated Damages Provision = 24 Ⅱ. Limitations on Damages = 25 Ⅲ. "Exclusive Remedy" Provision = 25 Part 5 : Warranties = 26 A. Warranty of Title = 26 B. Express Warranties = 26 Ⅰ. Statement of Fact or Promise = 26 Ⅱ. Basis of the Bargain = 27 C. Implied Warranties = 28 Ⅰ. Warranty of Merchantability = 28 Ⅱ. Implied Warranty of Fitness = 30 D. Disclaimer of Warranties = 30 Ⅰ. Disclaiming Express Warranties = 30 Ⅱ. Disclaiming Implied Warranties = 31 E. Remedies For Breach of Warranty = 31 Ⅰ. Before Acceptance = 31 Ⅱ. After Acceptance = 31 Further Reading = 33 Chapter Five Law of Torts = 34 Part 1 : Law of Torts = 34 A. Intentional Torts = 34 Ⅰ. Intent = 34 Ⅱ. Battery = 36 Ⅲ. Assault = 41 Ⅳ. False Imprisonment = 46 Ⅴ. Intentional Infliction of Emotional Distress = 49 Ⅵ. Trespass = 52 Ⅶ. Trespass to Chattel and Conversion = 53 B. Defenses to Intentional Torts = 55 Ⅰ. Consent = 56 Ⅱ. Self Defense = 58 Ⅲ. Defense of Property = 59 Ⅳ. Recapture of Chattels = 61 B. Intentional Torts Regarding Dignitary Injury = 61 Ⅰ. Defamation = 61 Ⅱ. Invasion of Right to Privacy = 64 Part 2 : Negligence = 66 A. Duty of Care = 66 Ⅰ. Palsgraf v. Long Island Railroad Co. = 66 Ⅱ. Custom = 68 Ⅲ. Statutory Standard of Care = 69 Ⅳ. The Relevance of Personal "Circumstances" = 70 Ⅴ. The Relevance of External Circumstances = 74 Ⅵ. Occupiers of Land = 75 Ⅶ. Breach-Res Ipsa Loquitur = 77 Ⅷ. Causation = 78 Ⅸ. Defenses = 80 Part 3 : Strict Liability = 83 A. Abnormal Dangerous Activities = 83 Ⅰ. The Old Concept = 84 Ⅱ. Later Developments = 84 B. Product Liability = 85 Ⅰ. General rule = 85 Ⅱ. Defective = 86 Ⅲ. Design Defects = 87 Ⅳ. Warning = 88 Further reading = 89 Chapter Six Business Associations = 90 Part 1 : Doing Business = 90 Part 2 : Sole Proprietorship = 90 A. Beginning of Operation = 91 B. Ownership = 91 C. Continuity and Transferability = 91 Part 3 : Partnership = 92 A. "General" Partnership = 92 Ⅰ. Applicable Law = 92 Ⅱ. Formation = 93 Ⅲ. Relations Between Partners = 96 Ⅳ. Relations of Partners to Third Parties = 100 Ⅴ. Dissolution = 102 B. Limited Partnerships = 105 Ⅰ. Applicable Law = 105 Ⅱ. Two Types of Partners = 106 Ⅲ. Formation Requirements = 106 Ⅳ. Liability of Limited Partners = 107 Ⅴ. Rights of Limited Partners = 109 Ⅵ. Rights and Liabilities of a General Partner = 111 Ⅶ. Dissolution = 112 1. General Principles = 112 2. Distribution of Assets = 112 Part 4 : Law of Corporations = 113 A. General principles = 113 Ⅰ. Characterisation = 113 Ⅱ. Distinction Among Corporations = 114 Ⅲ. Applicable Law = 114 B. Organization = 115 Ⅰ. Purpose = 115 Ⅱ. Document of Incorporation = 115 Ⅲ. Bylaws = 116 C. Transactions by Promoters Before Incorporation = 118 Ⅰ. Basic Function of Promoters = 118 Ⅱ. Promoter's Liability = 118 Ⅲ. Liability of Corporation = 119 Ⅳ. Promoter's Fiduciary Obligations = 119 D. Defective Incorporation = 120 Ⅰ. Common law "de facto" Doctrine = 120 Ⅱ. Corporation by Estoppel = 120 E. Piercing the Corporate Veil = 120 Ⅰ. Traditional Test = 121 Ⅱ. Individual shareholders = 121 Ⅲ. Parent/Subsidiary = 124 Ⅳ. Brother/Sister("Enterprise Liability") = 125 F. Corporate Finance = 125 Ⅰ. Introduction = 125 Ⅱ. The Issuance of Common Shares = 125 Ⅲ. Issuance of More Than a Single Class of Shares = 127 G. Statutory Scheme of Management and Control = 127 H. Directors = 128 Ⅰ. Number and Changes = 128 Ⅱ. Meetings, Quorums and Notice = 129 Ⅲ. Compensation = 129 Ⅳ. Resignation and Removal = 129 Ⅴ. Filling of Vacancies = 130 Ⅵ. Decisions = 130 Ⅶ. Duties of Care and Loyalty = 130 Ⅷ. Liabilities and Suits Against Directors and Officers = 135 J. Officers = 138 Ⅰ. Statutory Designations of Corporate Officers = 138 Ⅱ. Authority of Officers in General = 139 Ⅲ. Duties of Officers = 139 Ⅳ. Liability = 140 Ⅴ. Tenure of Officers and Agents = 141 K. Shareholders' Rights and Powers = 142 Ⅰ. Rights in Management of Corporation = 143 Ⅱ. Shareholders' Meetings = 143 Ⅲ. Proxy Rules = 145 Ⅳ. Voting Rights = 145 Ⅴ. Class Voting = 147 Ⅵ. Voting Trusts = 147 Ⅶ. Dividends = 148 L. Resolution of Disputes = 151 Ⅰ. Dissension and Deadlock = 151 Ⅱ. Dissolution = 151 Part 5 : Limited Liability Company = 152 A. Purpose = 152 B. Formation = 153 Ⅰ. Contents of Articles = 153 Ⅱ. Publication = 154 Ⅲ. Management = 154 C. Liability of Members = 154 D. Sharing Profits and Losses = 154 E. Transfers of Interest = 154 F. Dissolution = 155 Further reading = 155 Chapter Seven Procedural Questions = 156 Part 1 : Introduction = 156 Part 2 : Federal Courts = 156 A. Structure = 156 Ⅰ. Supreme Court = 156 Ⅱ. Trial Courts = 156 Ⅲ. Appellate Courts = 157 B. Judicial Process = 158 Ⅰ. An Adversarial System = 158 Ⅱ. Fees and Costs of Litigation = 158 Ⅲ. Procedural Rules for conduct of Litigation = 158 C. Civil Cases = 159 Ⅰ. Discovery = 159 Ⅱ. Alternative Dispute Resolution = 160 Ⅲ. Trial = 161 D. Criminal Cases = 162 Ⅰ. Pretrial Interrogation = 162 Ⅱ. Initial Appearance = 162 Ⅲ. Arraignment = 163 Ⅳ. Burden of Proof = 163 Ⅴ. Result of the Verdict : Not Guilty = 163 Ⅵ. Result of the Verdict : Guilty = 164 E. The Appeals Process = 164 Ⅰ. Trial Court Actions that are Reviewable = 164 Ⅱ. Grounds = 165 Ⅲ. Panel's Decision = 165 Ⅳ. Supreme Court = 166 Part 3 : The Jury = 167 A. Civil Trial Jury = 167 Ⅰ. Number of Jurors = 167 Ⅱ. Unanimity = 167 Ⅲ. Jury Selection = 168 B. Criminal Trial Jury = 169 C. Grand Jury = 169 Part 4 : Jurisdiction = 169 A. Personal Jurisdiction = 170 Ⅰ. In Personam Jurisdiction = 171 Ⅱ. In Rem Jurisdiction = 175 Ⅲ. Quasi in Rem Jurisdiction = 175 Ⅳ. Jurisdiction over Corporations = 177 1. Minimum Contacts = 177 2. Dealings With Residents of Forum State = 179 3. Product Liability = 179 4. Unreasonableness = 181 5. Class Action Plaintiffs = 181 C. Subject Matter Jurisdiction = 181 Ⅰ. State Courts = 181 Ⅱ. Federal Courts = 182 Ⅲ. Supplemental Jurisdiction = 184 D. Venue = 185 Ⅰ. State action = 185 Ⅱ. Venue in Federal Actions = 185 Part 5 : Class Action = 187 A. Introduction = 187 Ⅰ. Jurisdiction = 187 Ⅱ. Binding on absentees = 187 Ⅲ. Defendant class = 188 B. Prerequisites = 188 Ⅰ. Size = 188 Ⅱ. Typical claims = 188 Ⅲ. Fair representation = 188 C. Binding effect = 189 D. Attorneys' fees = 189 Ⅰ. Federal statute requires = 189 Further reading = 189 Vocabulary = 191 Index = 199 |