Notes for BBIS

Santosh K.C

Unit One

Law

Law is the King of the Kings, far more powerful and rigid than them, nothing can be
mightier then law – Veda

Since much juristic ink has flowed in an endeavour to provide a universally

acceptable definition of law, but with little sign of attaining objective. Lord Lyod

The term “law” can be understood as a set of principles, rules and custom as well,
made or recognized and enforced by the supreme authority of the state in the
country. Law guides the subjects of the state to do or not to do some acts. In case of
violation of law there is a penalty.

“Law is that which must be obeyed and followed by citizens subject to sanction or
legal consequences” – Black’s Law Dictionary

It can be better understood as

 An Instrument of regulating human behaviour
 A Guide for settlement of dispute
 Means of change in the society
 A Safeguard for protecting interest of the weaker section
 Finally an Instrument for Social Engineering

Types of Law

We didn’t found uniformity in the types of law. Different thinkers have exposed
their own approach in respect of types of law. However following are the most
common and convenient classification
1. Substantive Law

Substantive law refers to those sorts of laws that create and define the right and
obligation of the person of the institution. Like the interim constitution of Nepal
2063 has given the right to religion, environment, property etc. Generally
substantive law concerned with the end of the law.

2. Procedural Law
If the rights given by the substantive law is taken away or infringe, the branch of law
show the path to restore or get back that right. Those laws are called the procedural
law. It doesn’t only enforce or restore the violated rights, also compel the person to
perform the obligation. E.g. under the Company Act of Nepal 2063 you have a right
to register the company. But if authority doesn’t register the company then you can
proceed to the court and the procedure you have to follow is lay down by the law,
and that is called the procedural law. Like filing petition within limitation
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Santosh K.C

3. Criminal Law

If the purpose of law is to protect the society as a whole rather than its member that
law is called the criminal law. It includes that kind of law, of which violation
amounts the punishment in the form of Jail. The criminal law focuses on wrong
against the whole society. It is directly related with the peace and security of the
society. E.g. prohibiting the killing of person without lawful excuse as per the
Muluki Ain 2020 Jyan Sambandhi ko mahal.

4. Civil Law
Those laws, of which, the violation amount the punishment in the form of
compensation or fine is called the civil law. Generally it deals about the relation of
individual with individual. Like contract law, law of property and law on partition
etc.

5. Business Law
Business law is a branch of law that regulates the business sector. It comprises the
law concerning trade, industry, and commerce. The business law may be defining as
that branch of law, which laid down the rights and obligation of the mercantile
person, arising out of the mercantile transaction. Like contract law, which gives
right to the party to chose the time, place and subject of contract in the form of
rights and oblige the related party perform the duty emerging out of contract.

Nature of Law

1. Ignorance of law is no excuse

2. Generally law is made by the state.
3. It regulate the human behaviour
4. Law always aims to maintain peace and security in the society.
5. Law penalize the offender
6. The law is dynamic and changeable
7. Law varies time-to-time and place to place
8. Law treats all people alike that is to say no one is above the law it is equally
applicable to farmer and president

Sources of Law

Primary source
1. Legislation
2. Precedent
3. Custom
Secondary Source
4. International treaty
5. Determination of International Organization
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Santosh K.C

6. Law of other Country

7. Expert Opinion

Classification of Major Legal System of the World

Legal System
Prof. Madhav
“Legal system has a body of principles and a structure of institution, procedure and
practices.”
Legal system is a system of legal process, legal rules, legal institutions, legal
profession, and legal principles. It is more than a law but the aggregation of laws.

Major Legal System of the World

Civil Legal System

1. Developed with the Scholarly effort of University professors
2. Closed system
3. Written and Codified Law
4. System of Public and Private Law
5. Substantial Law is very Important i.e. Codified law
6. No discretionary power to Judge
7. Legislation is the primary sources of law
8. Inquisitorial justice system
9. Opposite Criminal law principle
10. Books are highly focused
11. Legal education is under control of university

Common Legal System

1. No Division of Private and Public law
2. Precedents are the main Sources of Law
3. Open legal system
4. Discretionary power to Judge
5. Appointment of Judge from Bar
6. Procedure guided
7. Regular Court Structure
8. Jury System
9. Interpretation on the basis of precedent and convention
10. Adversarial Justice System
11. Disclosure of case proceeding

Religious Legal System

a. Muslim Legal System

1. No distinction between law and Religion, Jurist and priest
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Santosh K.C

2. Quran is supreme source of law

3. Two types of Court system
4. Qadi – Religious Court
5. Mazalim – Secular Court (General court)
6. Jurisprudence is called FIQH
7. State is recognized as servant
8. Quadi is enforcer of law
9. Polygamy is permitted, Polyandry is restricted – stoning to death
10. Divorce is permitted – Oral divorce too with some condition
11. Dowry is for social security
12. No permission for adoption
13. Pre fixation of interest is prohibited
14. Criminal punishment is hard
15. Homicide crime, can be settle down by blood money
16. Compulsory donation
17. It is codified legal system
18. Marriage is regarded as a contract

b. Hindu Legal System

1. Based on Shruti, Smriti and Dharmasastra
2. Believes on Rebirth and Moksa
3. Class in society – Bhraman, Chhetri, Baisya and Sudra
4. Ashram Dharma – Bhramhacharya, Grihaprasthasram, Banaprasthasram,
Sanyasram
5. Emphasize on Duty
6. Ethics is higher than law
7. Law is king of king
8. Long practice custom is superior than Sastras
9. It is personal law
10. Judicial process
a. Purbapada
b. Uttarpada
c. Kriyapada
d. Nirnayapada
11. King is punishment giver
12. No precedent system but appeal and Sanskrit is professional language.

Chinese Legal System

1. Constitution is supreme law
2. Legal system is based on Marxist- Leninist Philosophy
3. Individual should sacrificed/ state can interfere the private affair
4. Individual interest v. state interest
5. Collective ownership
6. Equality before law/ women has equal right
7. No fair hearing (No judicial review/ no contempt of court)
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8. Death penalty
9. Negative rights are focused/ positive rights are not
10. Occupation choosing rights are not given
11. Application of criminal law principle
12. No right of collective bargaining
13. No right to choose residential place

Socialist Legal System

1. Based on Marxist Leninist Ideology
2. Objective is to establish classless and lawless society
3. Legal system based on collective ownership
4. No separation of power
5. State control economy
6. Supremacy of Enacted law
7. No provision of judicial review
8. The judicial process lacks adversary character; public prosecution is
considered as “provider of Justice”
9. Massive social security (Free education, healthcare, Maternity leaves etc.)

Characteristics of Nepalese Legal System

1. Legislation is the predominant Source of law
2. The legal system has its roots in both English common law & civil law
3. Nepalese legal system and religion
4. Based on Western Legal philosophy
5. Current Court Structure
6. Independence of Judiciary
7. Adversarial Model of Judicial Proceedings
8. Role of Case laws in Law making process
9. Procedure oriented legal system
10. Legal profession in Nepalese legal system
11. International Treaties are the part of the state laws
12. Written and unwritten laws, that is codified laws such as Muluki Ain,
Evidence Act 2031 etc. whereas unwritten laws means judicial decision,
customs and usage.
13. System of ADR (Alternative Dispute Resolution). The laws of Nepal also
recognize this system of dispute settlement; on the other some of the local
communities of Nepal still practice it in their locality for the settlement of
dispute.
14. No public participation in judicial proceeding. Unlike jury system Nepalese
legal system doesn’t include any public in judicial proceeding.
15. Mixed system of hearing – Nepalese Legal System adopted the both close and
open hearing. In some cases it adopt the close hearing such as rape, human
trafficking and case relating to juvenile delinquency.
16. Constitution is the fundamental law of the land. Any law contravene with it is
declare void.
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Santosh K.C

Business Law as a Separate Branch of Law

The law, which establishes and balance relations between business,
businesspersons as well as government and maintains peace and good order in the
business community, is the business.
It is also known as the trade law, commercial law or mercantile law. This law relates
with the subject matters, e.g. relating to industry, trade and commerce.

M.C Kuchhal,
Mercantile law is branch of law, which comprises laws concerning trade, industry
and commerce.

Moreover, Business law is that sort of law, which is made for regulating business
transactions. This is a rule or sets of principles, which regulates and control the
transaction of business community.

This law consist of all the rules relating to establishment, operation and dissolution
of a business

A dispute that arises or may arise between businessperson is resolved on the basis
of this law.

Characteristics
1. Made and enforced by state (Legislative, Executive and Judiciary)
2. Business law is a branch of Civil Law
3. It regulates all the business matter such as trade, industry commerce and the
like
4. It treats all equal
5. Violation of it amount to punishment
6. Business law is a means to maintain peace, order and security in the business
society.

Sources of Business Law

Binding Sources
1. Legislation
2. Custom
3. Precedent

Persuasive Sources
4. Expert Opinion
5. Laws of other Country
6. Determination of international organization
7. Treaty and Convnetion
Notes for BBIS
Santosh K.C