ACCA-LW章節知識點Chapter 2 Sources of law

1.3.2 Established precedents will not be binding

1.3.2.2 Reversing推翻/改判

? If the decision of a lower court is appealed to a higher one, the higher court may reverse the result if they feel the lower court has wrongly interpreted the law. When a decision is reversed through appeal, the higher court is usually also overruling the lower court's statement of the law.

? 高等法院可以審理上訴案件，并在同一案件中推翻/改判下級法院的判決。改判最常見的原因是上級法院認為下級法院在其判決中犯了錯誤。之前當時的判決結果無效

1.3.2.3 Distinguishing

? A precedent is avoided by demonstrating that the material facts(大致事實) of two case are not the same

? Material facts of the cases

Same——binding: if there is little difference, the court is inclined to(傾向于) follow the earlier case.

Similar——persuasive: if the differences appear significant the court may distinguish the earlier case on the facts and thereby avoid following it.

1.3.2.4 it may declare the ratio decidendi obsure

Ratio decidendi 判決的理由(the reason for the decision) - binding

有約束力的司法先例.

Obiter dicta 附帶意見(statements made by the way) - persuasive

有說服力的司法先例

1.3.2.5 it may declare the previous decision incuriam(冷漠)Without taking account of some essential point of law,such as an important precedent