v Lesson One: Jurisprudence

From the new year, the Law English will introduce you the history of the western jurisprudence. As is known to all, jurisprudence is the basic but most crucial knowledge for all the law students. It is a basic course because we should not only make a good master of the laws, but also realize how and why the laws should be that, not be others. Moreover, this course is closely connected with many other subjects such as philosophy, sociology, ethics, political science, history, theology and even psychology. Through learning it, we can gain extensive knowledge and broaden our horizon, but also enhance our thinking ability, which will definitely benefit us in the long run. Therefore we choose this topic as the main content of our Law English in the new year.

What is jurisprudence? The word jurisprudence derives from the Latin term juris prudentia, which means "the study, knowledge, or science of law." It is variously regarded as a branch of ethics or of sociology. Now in the western countries jurisprudence commonly means the philosophy of law. Legal philosophy has many aspects, but four of them are the most common. The first and the most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law. The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences. The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a particular legal concept. The fourth body of jurisprudence focuses on finding the answer to such abstract questions as: What is law? How do judges (properly) decide cases?

Apart from different types of jurisprudence, different schools of jurisprudence exist. For instance, there is the classic debate over the appropriate sources of law between positivist and natural law schools of thought. Positivists argue that there is no connection between law and morality and the only sources of law are rules that have been expressly enacted by a governmental entity or court of law. Naturalists, or proponents of natural law, insist that the rules enacted by government are not the only sources of law. They argue that moral philosophy, religion, human reason and individual conscience are also integrated parts of the law.

There are no bright lines between different schools of jurisprudence. The legal philosophy of a particular legal scholar may consist of a combination of strains from many schools of legal thought. Some scholars think that it is more appropriate to think about jurisprudence as a continuum.

v Lesson Two:
      The Development of Jurisprudence in Slave society of Ancient Greece

At that time, comparatively speaking, there was not much statute law, neither were the professional jurist groups in the poleis, let alone an independent jurisprudence. However various works on philosophy, ethnics, politics and literature, involved many general theories about law, most of which discussed the relationships between law and divinity, nature, politics, moral and justice. For instance, is the law a divine or a human one? Does the law reflect justice and nature, or just power? What are the relationships between law and state, democracy, freedom and equality? What is the relationship between natural law and positive law?…All the ideas have exerted an important influence on the later development of jurisprudence in the western world.

Platon (427-347 BC), a famous Greek mentalism philosopher, advocated “the politics of wise man”, and belittled the role of law. Nevertheless in his later works, he altered to believe that law is the second best choice, only inferior to “the politics of wise man”, moreover he was inclined to accept that law is omnipotent.

Among all the Greek thinkers, Aristotle (384-322 BC) has advanced the most rich and profound thoughts of law. For example, he deemed that, whether a law conformed to justice or not relied on the polity; but law was different from the polity-----they were rules, by right of which men in power took the reins and punished those who disobeyed the law. In other words, law restricted both the common people and the men in power. His thoughts included that rule of law was better than rule by man; rule of law meant people generally obeyed the law, which should be well enacted; law reflected the justice, which meant a kind of equality. There were two kinds of justice: one was the “justice of distribution”, that is, the distribution of wealth, official positions and credits should be in accordance with one’s achievements and his value; the other is “justice of equality”, that is, everyone should be treated equally. Aristotle also discussed the difference between natural justice and legal justice (promissory justice), which was considered the distinction between the natural law and the positive one.

v Lesson Three

The U.S. Court System
   The U.S. court system, as part of the federal system of government, is characterized by dual hierarchies: there are both state and federal courts. Each state has its own system of courts, composed of civil and criminal trial courts, sometimes intermediate courts of appeal, and a state supreme court. The federal court system consists of a series of trial courts (district courts) serving relatively small geographic regions, circuit courts of appeal that hear appeals from many district courts in a particular geographic region and the Supreme Court of the United States. The two court systems are to some extent overlapping in that certain kinds of disputes (such as a claim that a state law is in violation of the Constitution) may be initiated in either system. They are also to some extent hierarchical, the federal system stands above the state system. Litigants who lose their cases in the state supreme court may appeal their cases to the Supreme Court of the United States.
Thus, the typical court case begins in a trial court-a court of general jurisdiction -in the state or federal system. Most cases go no further than the trial court: for example, the criminal defendant is convicted and sentenced by the court and the case ends, the personal injury suit results in a judgment by a trial court (or an out-of-court settlement by the parties) and the parties leave the court system. Burt sometimes the losing party at the trial court cares enough about the case that the matter does not end there. In these cases, the 'loser' at the trial court may appeal to the next higher court.

美国法院体系
   美国法院体系是政府联邦体系的组成部分，它以两级结构为特点：包括州法院和联邦法院。每个州都有自己的法院体系，由民事和形式初审法院组成，有时还包括上诉法院和州最高法院。联邦法院体系则包括：一系列面向相对较小的地区的初审法院（称为地方法院），巡回法院--审理来自众多位于特定地区的地方法院的上诉案件，和联邦最高法院。由于一些争议事项（比如声称州的某一法律违宪）可以诉诸两个法院体系的任何一个，因此这两个体系在某种程度上是重叠的。然而在某种程度上，这两个体系又是垂直的，联邦法院体系位于州法院体系之上。在州最高法院败诉的当事人可以上诉至联邦最高法院。
   因此，典型案件开始于州法院体系或联邦法院体系的一个初审法院--一个具有普遍管辖权的法院。大多数案件止步于初审法院。比如刑事案件的被告被宣告有罪，由法院作出判决随之案件终结，人身伤害诉讼则随着初审法院作出判决（或当时方作出庭外和解）而终结。但有时，在审判法院败诉的一方十分重视该案件而使程序并未终止于此。在这类案件中，在初审法院的"败诉方"可以将案件上诉至高一级法院。

v Lesson Four
   The effectiveness of International law
  Some people say that international law is useless. Since there isn't a government above states, it can't be enforced well. Therefore, they believe, no matter how many treaties are there, they're just empty words, which show the good wishes of states at most. Whereas, international law do have affected the whole world and even our daily life deeply, no matter you believe it or not. Now, let's see how do they play their roles.
  As we all know, the most common form of international law is treaty, which can be divided into bilateral and multilateral treaties. For the latter, various field of our life is involved, and most of treaties settle worldwide issues. Such as the Law of the Sea, Air Law, Outer Space Law, International Environmental Law and so on. These problems can not be solved by one state, they need the cooperation among states. These laws stipulate the right and obligation for each country. In another word, all the members have to transfer some of their sovereignty in the field. The obligation is clear and concrete. For instance, after our entry into the WTO, that is, ratifying the relevant agreements, we should change not only tariff, but also many aspects of domestic economic activities so as to conform to the requirement of the WTO, and it will bring much influence to every people's life. Since the treaties should be obeyed, every state has their measures and process. Take our country as an example, some treaties can be applied directly, some will be transformed into the current domestic laws, even in some times, we have to formulate new laws to meet the demands of treaties. Furthermore, some commercial treaties can be chosen by businessman and be written into their contract, in that way, the treaties will be applied between the two parties.
  Not only treaties, some basic international principles also have great effect, such as the principle of sovereignty equality, non-interference in other's internal affairs, prohibition of illegal use of arm forces and son on. Although they don't have measure to enforce, they stand for the wishes of most states and no one can violate them recklessly disregarding the world's opinion.
  In addition, the international law also provides us various ways to resolve disputes fairly peacefully and effectively. They can be divided into political measures and legal measures. The former includes negotiation, inquiry, good office and conciliation, while the latter include international arbitration and judicial settlement. The International Court of Justice, for instance, is valued by world community and has heard about a hundred cases. And International Criminal Court is being prepared, which will have jurisdiction over the most serious international crime such as genocide, aggression and anti-humanity.
  Well, from the above, we can see that the international law do have great effect on the world, but there's still a long way to go. Since there's no government above all states to enforce the law, the cooperation among states appears more essential. And we should also let the international organization, such as UN, play a more important role and follow the resolutions of it, which we have agreed on. In short, we should fulfill what we have promised and uphold the international law to bring a peaceful and happy world for the human being.

v Lesson Five
     About Justifiable Defence in Chinese Criminal Law
   Justifiable defence is the act being exempted from crimes, namely, this act appears to cause damage to lawful rights and interests, but in essential it protects lawful rights and interests. Therefore, Chinese Criminal Law definitely prescribes that this act doesn't constitute crimes.
   According to Criminal Law, an act that a person commits to stop an unlawful infringement in order to prevent the interests of the state and the public, or his own or other people's individual rights, rights of property or other rights from being infringed upon by the on-going infringement, thus harming the perpetrator, is justifiable defence, and he shall not bear criminal responsibility.
   Justifiable defence must include the following conditions: Firstly, the purpose of this act is to prevent the interests of the state and the public，or a person's own or other people's individual rights, rights of property or other rights from being infringed upon by the on-going infringement. Secondly, there must exist an unlawful infringement, including criminal acts as well as other illegal acts. Thirdly, the unlawful infringement must be on going, which means an unlawful infringement has begun and has not finished yet. Fourthly, an actor can only defend against the person who himself commits unlawful infringement. Finally, the act of justifiable defence can not obvious exceed the limit of necessity and cause serious damage. If a person's act of justifiable defence obvious exceeds the limits of necessity and causes serious damage, which is considered as undue defence, he shall bear criminal responsibility. However, he shall be given a mitigated punishment or be exempted from punishment.
    Moreover, in order to effectively protect lawful rights and interests and encourage citizens to carry out actively justifiable defence, our Criminal Law prescribes that if a person acts in defence against an on-going assault, murder, robbery, rape, kidnap and other crime of violence that seriously endangers his personal safety, thus causing injury or death to the perpetrator, it is justifiable defence instead of undue defence, and he shall not bear criminal responsibility. According to this provision, it is not undue defence to the acts in defence against crime of violence that seriously endangers one's personal safety.
Justifiable defence is an important problem in criminal jurisprudence. It is an effective way to protect the rights and interests of the state and people. However, in practice, it is also difficult to judge the limits of justifiable defence sometimes. It need further research by experts of criminal jurisprudence gradually.

我国刑法中的正当防卫
   正当防卫是排除犯罪性的行为，也就是说，这种行为在表面上给合法权益造成了损害，实质上却是保护了合法权益。因此，我国刑法明文规定这种行为不构成犯罪。
根据刑法，为了使国家、公共利益、本人或者他人的人身、财产和其它权利免受正在进行的不法侵害而采取的制止不法侵害的行为，对不法侵害人造成损害的，属于正当防卫，不负刑事责任。
    正当防卫必须具备以下条件：第一，这种行为的目的是为了保护国家、公共利益、本人或者他人的人身、财产和其它权利免受正在进行的不法侵害；第二，必须存在不法侵害行为，包括犯罪行为和其它违法行为；第三，不法侵害必须正在进行，即不法侵害已经开始且尚未结束；第四，防卫必须针对不法侵害人本人；最后，正当防卫行为不能明显超过必要限度造成重大损害，正当防卫明显超过必要限度造成重大损害的，属于防卫过当，应当负刑事责任，但是应当减轻或者免除处罚。
此外，为了有效地保护合法权益，鼓励公民积极进行正当防卫，我国刑法规定对于正在进行的行凶、杀人、抢劫、强奸、绑架以及其它严重危及人身安全的暴力犯罪，采取防卫行为造成不法侵害人伤亡的，属于正当防卫而不是防卫过当，不负刑事责任。据此，对严重危及人身安全的暴力犯罪进行防卫，不存在防卫过当的问题。
    正当防卫是刑法学的一个重要问题，是保护国家和人民合法权益的有效手段。但是在实践中，有时也很难判断正当防卫的限度，这就需要刑法学专家不断进一步地研究。

v Lesson Six
 一、The concept and basic principles of administrative law
    Administration refers to those activities such as organization and regulation. The concept of administration in administrative legal system refers to the regulation of state and public affairs, namely, decision-making, organization and management of state and public affairs by administrative subject according to law, which is often referred to as public administration.
     Administrative law is the general term of all legal norms and principles that regulates the different kinds of social relations occurring in the course of implementation of administrative power by administrative subject.
    Then I would like to introduce the basic principles of administrative law. This problem is one of the elementary theoretical issues in administrative jurisprudence, which denotes the fundamental rules guiding the enactment and application of administrative law. The basic principles mainly consist of legality and reasonableness.
     1, Legality is the foremost principle of administrative law, which means that administrative subject must implement administrative activities according to lawful authorization, form and procedure, and undertake corresponding legal responsibility for its illegal administrative activities. The basic content of the principle of legality is as follows. Firstly, the administrative authority of administrative subject shall be set or conferred by law. Secondly, administrative activities carried out by administrative subject must comply with administrative legal specifications. Thirdly, administrative subject's activities against law are invalid. Fourthly, administrative subject must undertake corresponding legal responsibility for its illegal administrative activities.
      2, The principle of reasonableness is a supplement to the principle of legality. It requires administrative activities of administrative subject be not only legal, but also reasonable. The specific requirements of this principle are: Firstly, administrative activities should comply with objective rules. Secondly, administrative activities should comply with the aim of the enactment of relevant laws. Thirdly, administrative activities should comply with the benefit of state and people. Fourthly, administrative activities should have sufficient objective basis. Fifthly, administrative activities should comply with justice and fairness. Sixthly, unreasonable administrative activities should undertake corresponding legal responsibility. The principle of administrative reasonableness is the principle of administrative law instead of administrative procedural law; so, it is applicable to administrative activities of administrative subject rather than the judicial action of judicial departments.
      The basic principles of administrative law are controlling and binding the various administrative legal systems of our country more and more. Along with the development of socialist market economy and the construction of the socialist country ruled by law, the content of those principles will be increasingly improved.

(中文)
行政法的概念和基本原则
       行政，是指组织、管理等活动。行政法领域的行政是指国家与公共事务的行政，即行政主体依法对国家与公共事务进行的决策、组织与管理活动，通常称为公共行政。
          行政法则是调整因行政主体行使行政职权而发生的各种社会关系的法律规范和原则的总称。
       下面我来谈谈行政法的基本原则。这一问题是行政法学的基本理论问题之一，是指导行政法制定和实施的基本准则。基本原则主要包括合法性原则和合理性原则。
          1，合法性原则是行政法的首要原则，是指行政主体必须按照法定的授权、形式和程序实施行政行为，并对其违法行政行为承担相应的法律责任。合法性原则的基本内容是：第一，行政主体的行政职权依法设定或被授予；第二，行政主体的行政行为必须符合行政法律规范；第三，行政主体的违法行为无效；第四，行政主体必须对其违法行政行为承担相应的法律责任。
        2，合理性原则是对合法性原则的补充。它要求行政主体的行政行为不仅要合法，而且要合理。这一原则的具体要求是：第一，行政行为要符合客观规律；第二，行政行为要符合制定有关法律的目的；第三，行政行为要符合国家和人民的利益；第四，行政行为要有充分客观的依据；第五，行政行为要符合正义和公正；第六，不合理的行政行为要承担相应的法律责任。行政合理性原则是行政法的原则，而不是行政诉讼法的原则，所以它对行政主体的行政行为是适用的，但不适用于司法机关的行政诉讼活动。
    行政法的基本原则越来越支配和约束着我国各种行政法律制度。随着社会主义市场经济的发展和社会主义法治国家的建设，这些原则的内容将会不断得到完善。

v Lesson Seven

一、Intellectual Property（知识产权）
      Generally, intellectual property is intangible and is created by intellectual effort as opposed to physical effort. In the United States, patents, copyrights and trademarks are governed by federal law. Trade secrets are governed by state law.
    一般来说,知识产权是无形的并且是由相对于体力劳动的智力劳动创造的。在美国，专利权、版权和商标权是由联邦法管辖的，而商业秘密是由州法律管辖。

    A patent is a governmental grant of an exclusive monopoly as an incentive and a reward for a new invention. To be patentable, an idea must be novel, useful and nonobvious. 1In the U. S. A. , the owner of a patent controls the right to make, sell and use a product for a period of seventeen years and a design for fourteen years. If one manufactures, sells, or uses a patented invention without authorization of the patent owner, he has probably committed patent infringement. The infringement exists even if the infringer did not know about the patent. Infringers can be liable for damages and may be enjoined from future infringement.
    专利权是政府对一项新发明授予的独占的权利，以给予该发明以鼓励和奖励，一项具有专利性的想法必须具备新颖性、实用性和非显著性。在美国，专利权人对产品的制作、销售及使用有十七年的控制权，而设计是十四年。如果某人未经专利权人授权而制造、销售及使用该专利发明，那么他就可能是专利侵权行为。即使侵权人不了解专利侵权依然存在。侵权人可以要求赔偿并且禁止以后侵权。

    However, the party challenged with patent infringement can escape liability in a variety of ways. One way is by proving that the challenged product or process is outside the scope of the patent. Another way is by proving that the patent is invalid because it fails to meet the criteria for patentability. A third way is to establish that the patent holder has misused the patent. Misuse of a patent occurs when a patent holder uses the patent to achieve something illegally. The most common type of misuse occurs when the patent holder uses the patent to violate the antitrust laws.
    然而，被质疑专利侵权的一方可以用许多方式逃避责任。一个方式是证明被质疑的产品或过程是在专利的领域之外。另一个方式是证明由于专利未能满足专利性的标准而无效。第三个方式是证实专利权人滥用专利。当一个专利权人利用专利去非法的完成某些事时，专利滥用就发生了。最常见的滥用专利权常发生在专利权人利用其专利违反反垄断法的时候。

     A copyright protects the physical expression of intellectual or artistic effort, not the idea. A copyright is effective for the life of the creator plus fifty years. Anyone who creates an original work is protected by an automatic common law copyright. Published materials without statutory copyright protection are said to he in the public domain and may be used by anyone, without the consent of the creator, 3To obtain statutory copyright protection, materials must be published with the copyright notice, which takes the form of the word "copyright" or the abbreviation copr. , or the symbol (c)followed by the name of the copyright owner. Copyrights may be registered with the Register of Copyright and copies of the copyrighted material are provided by the Library of Congress. If one violates the copyright created by the copyright notice, he may only be enjoined from future violations. If he violates a copyright created by registration, he may be liable for damages, fines or imprisonment. Owners of copyrights may assign their ownership to others.
    版权保护的是对智力或艺术成果的有形描述，而不是主意。版权的保护期是创作者的终身再加五十年。任何人创作了作品之后都自动受到普通法版权的保护，未获成文法版权保护的出版物被称为在公共领域，任何人都可以不经作者同意而使用。要想获得成文法版权的保护，作品出版时必须有版权标志，其形式有单词“copyright”或缩写“copr.”及附有版权人姓名的符号c。版权可以向版权登记簿登记并且国会图书馆将提供作品的复印件。如果侵犯了通过版权标志受到保护的版权，侵权人可能仅仅被禁止再侵权行为；但如果侵犯了注册版权，侵权人便会承担支付损害赔偿，罚款或被监禁的法律责任。版权人可以转让他们的权利给其他人。

       A trademark is a mark on goods that distinguishes the marked goods from competing goods. The mark may be a word, picture or design. In order to qualify as a trademark, the mark must not be overly descriptive or generic. Trademarks are protected through registration. Unauthorized use of the registered trademarks of others is illegal. Public perception plays a significant role in trademark law. If the public comes to perceive that a trademark is generic, it will lose its legal status as a trademark. Public perception can also create a legal right for an attribute of a product. If a product's shape or style or features are arbitrary and nonfunctional, and the general public comes to view these features as associated with a particular product, they are said to have acquired a secondary meaning, which may be registered and protected.
    商标是用来区别被标记的商品和相竞争的商品间的商品标记。商标可以是一个词，画或者设计。为了符合商标的标准，标记不能过度描述的或普通的。商标通过注册保护。未经授权使用他人注册商标是违法的。公众的认知在商标法中扮演着一个重要的角色。如果公众开始认为某个商标是普通的，它将会失去商标的法律地位。公众的认知也能为产品的某个性质创造法律权利。如果一产品的形状、式样或特征是任意的且不具备功能性的，如果公众将其视为与特定的产品有联系的话，它就被称为取得了引申义，那么该形状、式样或特征也可以注册并受到保护。

    A trade secret may consist of any fomula, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. Trade secrets must be kept secret. To qualify for protection, the secret must give the firm a competitive advantage. Unlike patents and copyrights, there is no time limit on the life of a trade secret. It is effective as long as the secrecy is maintained. The law protects trade secrets from wrongful appropriation. This does not mean that a competitor cannot use the same manufacturing process. It only means that the competitor must arrive at the idea independently.
    一个商业秘密可能由在某个公司使用的公式、设计及信息编辑等组成，并且该商业秘密赋予它机会去得到优势超过不知道或未使用该秘密的竞争者。商业秘密必需保有秘密。要符合保护的标准，该秘密必须给予公司竞争性的优势。不象专利和版权，商业秘密没有时间限制。只要控制着秘密，它就有效。法律保护商业秘密不被非法窃取。这并不意味着竞争者不能使用同样的制造过程。它仅仅意味竞争者必须独立的得到这个主意。

二、法律名言选
1、Every law has no atom of stregth, as far as no public opinion supports it.　
   若是没有公众舆论的支持，法律是丝毫没有力量的。（Wendell phillips, American leader against slavery  美国废奴运动领袖 菲力普斯 W）　

2、Good order is the foundation of all things.
　 良好的秩序是一切的基础。（E.Burke, Btritish statesman  英国政治家 伯克 E）　

3、Guilt always hurries towards its complement , punishment; only there does its satisfaction lie.
   犯罪总是以惩罚相补偿；只有处罚才能使犯罪得到偿还。（Lawence Durrell, British writer 英国作家 达雷尔 L）

4、I disapprove of what you say, but I will defend to the death your right to say it.
    我不同意你说的话，但是我愿意誓死捍卫你说话的权利。（Voltaire, Frech writer 法国作家 伏尔泰）

5、If there were no bad people, there would be no good lawyers.
    倘若世上没有坏人，也就不会有好的律师。（Charles Dickens, British novelist  英国小说家 狄更斯 C）　

6、If we only had some God in the country's laws, instead of beng in such a sweat to get him into the Constitution, it would be better all around.
   如果我们国家的法律中只有某种神灵，而不是殚精竭虑将神灵揉进宪法，总体上来说，法律就会更好。（Mark Twain, American writer  美国作家 马克·吐温)

7、In nature there are no rewards or punishments; there are consequences.
   自然界中没有奖赏和惩罚，只有因果报应。（Horacl Annexley Vachell,British writer 英国作家 瓦谢尔 H A）

8、It is better to fight for justice than to rail at the ill.
   与其责骂罪恶，不如伸张正义。（Alfreds Tennyson, Bitish writer 英国作家 丁尼生 A）

v Lesson Eight

一、Discussion on Some Issue of Domain Names'Dispute （wudenglou）

     Nowadays the court is accepting more and more cases in relation to domain names'dispute with different characteristics, the laws hereof lag behind as compared to the increasing cases。The article mainly reflects to the following issues:
     Part 1 the Functions of Domain Names,the Varieties of Infringement and the Scope of Domain Name
In addition to the technological function of transmitting network information,domain name functions as introducing and indicating enterprises and origination of products as well as services provided by the enterprises.The author holds that,among different domain names stipulated by ICAAN, domain names followed by ".com"、".co"、 ".biz"、 ".coop" and ".aero" etc. concerning commerce and business may cause illegitimate competition.Other domain names registered before " .edu"、 ".name" etc. generally arise in no infringement with the exception of large public network station.
     Part 2 Domain Name right
     Despite the fact that currently there are no definite and independent laws and regulations with respect to domain names,some of which come to have commercial and legal values in practice.consequently,it is of great necessity to establish domain name right in civil laws for the purpose of clarifying the legal position of domain names.Domain name should enjoy equal civil rights and status to trademark,brand name and personal name.Famous domain name should be legally protected.
     Part 3 Infringement of Approximate Domain Names
     At present shanghai courts at all levels have called for the protection of approximate domain names.The author suggests that approximate domain name may constitute infringement under special conidion,but attention should be paid to the following: 1，the technological characteristic of domain name causes no approximation. 2,approximate brand name differs from approximate domain name.3，Chinese approximate brand name or domain name differentiates from the English domain name or other symbol.4，the recognition of approximate domain name is determined by the fact that the domain name causes confusion.5,the applied law for domain names registered abroad.6，an accurate distinguishing between inappropriate registration and inappropriate use.
     Part 4 Legal Connected Node of Domain Name
     Infringement shall not be easily recognized or cancelled by the court provided that the holder of domain name registers the connected node related to enterprise and individual as domain name.The author thinks that the connected nodes,which can be supported,are as follows:1,the enterprise's registered brand name.2,trademark.3,name.4,famous domain name registered at earlier time.However, the following connected nodes shall not be legally protected:1,the abbreviation for enterprises or other organizations.2,the business scope of enterprises or other organizations.3,part of brand names or trademarks of enterprises or other organizations.4,function and characteristics of network station.
     Part 5 Malicious Registration and Inappropriate Registration as Well as the Compensation hereof
     Malicious registration is different from inappropriate registration.In the case of malicious registration ,the court shall adjudicate the holder of domain name to compensate for the plaintiff's direct loss caused by legal action.The indirect economic loss or reputation loss of the holder of brand names or trademarks shall be made dependent on the particular situation.In the event of inappropriate registration,the court tends to adjudicate the defendant to stop infringement,generally the consequent compensation for economic loss shall not be made.
(From www.chinaiprlaw.com)

二、法律名言选（2）
1、Laws are generally found to be nets of such a texture, as the little creep through, the great break through, and the middle-sized are alone entangled in .（ William Shensto, British poet）
人们通常会发现，法律就是这样一种的网，触犯法律的人，小的可以穿网而过，大的可以破网而出，只有中等的才会坠入网中。（英国诗人： 申斯通） 　
2、Law can nerver be enforced unless fear supports it.
（Sophocles, Ancient Greek dramatist）　
如果法律没有恐惧支撑，它绝不能生效。
（古希腊剧作家 索福克勒斯）
3、Law is the crystallizaton of the habit and thought of society.
（Woodrow Wilson, American president）　
法律是社会习俗和思想的结晶。
（美国总统 ：威尔逊 ）　
4、Law is order , and good law is good order.
（Aristole, Ancient Greek philosopher）　
法律就是秩序，有好的法律才有 好的秩序。
（古希腊哲学家 亚里士多德）
5、Laws grind the poor, and rich men rule the law.
（Oliver Goldsmith, British writer）　
法律吸吮穷人的膏血，而富人却掌握着权柄。
（英国作家 哥尔德斯密斯 ）　
6、Mankind censure injustice, fearing that they may be the victims of it and not because they shrink from commintting it.
（Plato, Ancint Grek philosopher）　
人类对于不公正的行为加以指责，并非因为他们愿意做出这种行为，而是惟恐自己会成为这种行为的牺牲者。
（古希腊哲学家 柏拉图）
7、No society can make a perpetual constitution, or even a perpetual law.
（Thomas Jefferson, America president）　
没有哪个社会可以制订一部永远适用的宪法，甚至一条永远适用的法律。
（美国总统 杰斐逊）
8、One of the most striking and salutary thing in Ameican life is the widespread study of law.
（Alexis de Tocqueville ,French judge）　
美国人生活中最显著而又有益的事情莫过于对法律的广泛研究了。
（法国法官 托克维尔 ）　
9、Punishment is justice for the unjust.
（Augustine British writer）　
惩罚是对正义 的伸张。
（英国 奥古斯丁）
10、Really, what we want now, is not laws, against crime, but a law a -gainst insaity.
（Mark Twain, American writer）　
实际上，我们想要的不是针对犯罪的法律，而是针对疯狂的法律。
（美国作家 马克·吐温）
11、Singularity is almost invariably a clue. The more featureless and commonplace a crime is , the more difficult is it to bring it home.
（Sir Arthur Conan Doyle, British writer）　
奇特几乎总能提供一种线索。一种犯罪越是普通，越是不具特点，就越难以查明。
（英国作家 柯南·道尔爵士） 　
12、The administration of the law can never go lax where every individual sees to it that it grows not lax in his own case, or in cases which fall under his eyes.
（Mark Twain, Arerican writer）　
在个人自己的案件中或是他所看到的案件中不能有疏忽，因此执法从来不能疏忽。
（美国作家 马克·吐温）
13、The law cannot make all men equal, but they are all equal before the law.
Frederick Pollck ,British jurist　
法律不能使人人平等，但是在法律面前人人是平等的
（英国法学家 波洛克） 　
14、The laws of Nature, that is to say the laws of God, plainly made every human being a law unto himself, we must steadfastly refuse to obey those laws, and we must as steadfastly stand by the conventions which ignore them , since the statutes furnish us peace, fairly good government and stability, and therefore are better for us than the laws of God, which would soon plunge us into confusion and disorder and anarchy if we should adopt them.
（Mark Twain, American writer）　
自然法即神灵法，只是用来约束每一个个体的法律，我们必须坚定地拒绝遵守。我们应该坚定地遵守忽视神灵法的规章制度，因为规章制度赋予我们和平、比较好的政府和稳定，因而对我们来说，规章制度比神灵法更好，因为如果我们采用神灵法的话，他会将我们陷入迷惑、无序和无政府状态。
（美国作家 马克·吐温）

v Lesson Nine

一、Judicial Protection of intellectual Property in China And Its Prospects--by Zhipei Jiang
     The judicial protection of intellectual property in China was launched under such a background that people's courts make profound judicial reform, emphasize seriousness, fairness and justice of execution of law, provide reliable judicial guarantee for reform and opening up, construction of socialist market economy in China.

     Generally speaking, it is a common understanding of Chinese judges that the judicial protection of intellectual property means to protect intellectual property through judicial channels. Such as, the IPR owner or the public prosecutor raises a criminal or civil lawsuit to investigate and affix criminal or civil responsibility of infringer, the unsatisfied party of an IP administrative punishment brings administrative law suit to the People's court, judicial review of the execution of law, etc. All of these are for the justified applying laws or correct the wrong decisions to enable the adequate protection to the lawful right and interest.

     The scope of judicial protection of intellectual property includes the protection of patent, trademark, copyright, related rights, anti-unfair competition, and the property right and human right of all intangible assets of human creativity. The protection scope and level of Chinese law are quite similar to that of relevant International Treaties and will be positively influenced by various international Treaties, such as " Agreement on Trade-Related Aspects of intellectual Property Rights, Including Trade in Counterfeit Goods". Besides, a lawsuit relating technology contract, such as a technology transfer or a technology cooperation, also fall within the jurisdiction of the intellectual Property Trial Chambers. Chinese courts execute mainly on the basis of written law, while follow the judicial Explanations and Cases of Supreme People's Courts. The judges' trail experience also plays a role therein. Therefore, when bringing or responding to a lawsuit in Chinese courts, it is well worth to pay special attention on the intellectual property laws stipulated by States and the judicial explanations of Supreme Court. Meanwhile, providing powerful evidence, arguing adequately during a court session is also very important. Because all of these are critical to make a judge fully understand the case.

     Lately, Chinese people's courts at various levels have accepted and decided a number of IPR related cases.Statistics shows that between January of 1996 and June of 1998, people's courts accepted 9,53 1 IP civil cases and decided 9,018 of them . Among them, 2,948 were patent disputes and decided 2,642; 858 were trademark disputes and decided 780; 1126 were copyright disputes and decided 1105; 2,720 were technology contract disputes and decided 2,678; and 1,879 were infringement of trade secrets and other IP related disputes and decided 1,813. During the same period of time, the court have accepted 435 criminal cases relating to intellectual property and decided of them. The accepted intellectual property cases have the following features: first of all, the cases are comparatively concentrated in areas and cities with more developed economy and culture, the numbers of accepted cases between areas are not balanced with noticeable differences.

     Secondly, the total amount of accepted cases are steadily going up, and a large proportion of them is infringement cases. Thirdly, the involved cases are complicated in legal relationships with the infringement, the disputes of ownership and the contract disputes tangled therein. The intellectual property hold by plaintiff conflicts with that of defendant. There are both concurrence and compatibility of legal responsibility. The collective lawsuits have increased. Fourthly, the illegal infringers inside and outside the borders collaborate with each other. Pirating and impostures become internationalized. Some illegal doers outside the borders cheat or conspire with the doers inside the borders to transfer the parent pirated edition, and establish underground production lines, or directly smuggle a lots of infringing duplicates and conduct infringement wantonly. Their actions devastated the intellectual property market order of China. The above-mentioned features make the judicial protection of intellectual property more complicated and difficult.

    Chinese court have increased the judiciary protective power of intellectual property against various IP infringement conducts and acts of tort that wrecked the order of science and technology market, such as plagiarizing, illegally coping, passing off and breaching of contract, etc.:
    1. Taking "the Criminal Law of PRC" as a powerful weapon, applying criminal punishments to IP criminals, punishing the conducts of passing off and pirating, and protecting IP effectively.

     The section 7 of China Criminal Law, which is amended and adopted at the third session of the fifth National People's Congress in March of 1997 and effected as of October of 1997, defines the crime of IP infringement. This section includes eight articles, from Article 213 to 220. Article 213 of China Criminal Law stipulates: " anyone who uses a trademark identical to a registered trademark on the same toe of goods without the permission of the owner of the registered trademark, where the circumstances are serious, shall be sentenced to fixed term imprisonment of not more than three years or criminal detention, and/or be sentenced to a fine . If the circumstances are exceptionally serious, such person shall be sentenced to fixed term imprisonment of not less than three years and not more than seven years, and a fine." Article 214 stipulates that knowingly selling passing off products in large monetary amount should be sentenced to fixed term imprisonment of not more than three years, and a fine. Article 215 stipulated that " anyone who forges or manufactures without authorization representations of the registered trademark of another person or sells representations of a registered trademark that have been forged or manufactured without authorization, where the circumstances are serious, shall be sentenced to fixed term imprisonment of not more than three years, criminal detention or control, and/or be sentenced to a fine. If the circumstances are exceptionally serious, such person shall be sentenced to fixed term imprisonment of not less than three years and not more than seven years, and a fine". Article 216 stipulates that passing off other's patent product, when circumstance is serious, shall be sentenced to a fixed term of imprisonment of not more than three years, and/or a fine. Article 217 stipulated that " Anyone who, for the purpose of obtaining profit, infringes copyright in any of the following ways, where the amount of illegal income is relatively large or there are other serious circumstances, shall be sentenced fixed term imprisonment of not more than three years or criminal detention, and/or be sentenced to a fine; if the amount of illegal income is very large or there are other exceptionally serious circumstances, such person shall be sentenced to fixed term imprisonment of not less than three years and not more than seven years, and a fine: (l) reproduction and distribution of another person's written work, musical cinematographic, television or videographic work, computer software or other work without the permission of the owner of the copyright therein; (2) publication of a book to which another person enjoys exclusive publishing rights; (3) reproduction and distribution of an audio or video recording without the permission of the recording's producer; or (4) production and sale of a work of art passed off under another person's signature". Article 218 stipulated that " Anyone who knowingly sells and infringing reproduction as specified in Article 217 hereof for the purpose of obtaining profit, where the amount of illegal income is very large, shall be sentenced to fixed term imprisonment of not more than three years or criminal detention, and/or be sentenced to a fine". Article 219 stipulated that " anyone who infringes a business secret in any of the following ways, thereby causing serious losses to the holder of rights thereto, shall be sentenced to fixed term imprisonment of not more than three years or criminal detention, and/or be sentenced to a fine; if the consequences are exceptionally serious, he shall be sentenced to fixed term imprisonment of not less than three years and not more than seven years, and a fine: (1) obtaining a business secret of the holder or rights thereto by theft, enticement by promise of gain, coercion or other improper means; (2) divulging, using or permitting another person to use a business secret of the holder of rights thereto which has been obtained by a method as set out in the preceding item; or (3) divulging, using or permitting another person to use a business secret in one's possession, where such divulgence, use or permission is in violation of an agreement or in breach of the confidentiality requirements of the holder of rights in respect of the business secret. Anyone who obtains, uses or divulges another person's business secret that they are well aware or ought to be aware to have been infringed by an act as described in the preceding paragraph shall be treated as having infringed a business secret." Article 220 stipulated that if a work unit commits any of the offenses of infringing intellectual property, the work unit shall be sentenced to a fine and the main persons directly responsible for the work unit and the other directly responsible persons shall be punished in accordance with the provision of the Criminal Law.

     According to Criminal Procedure Law of the PRC and relevant judicial explanation, the sufferer may accuse of a crime of infringing intellectual property to public securities who will be responsible for placing a case on file for investigation and prosecution. The sufferer also may bring a lawsuit to People's courts directly and People's courts should accept the case according to law. If the court find there were not enough evidence for placing a criminal accusation and the instance may be accepted by the public security, or the accused person may be sentenced for a fixed term of three years of imprisonment, this case should be transferred to the public security. Civil law suit can be attached with these cases. During the litigation of civil IP cases, if the court finds that there is suspicious IP crime, this case should transferred to the public security for further investigation. If the sufferer brings the IP criminal law suit, the court should accept the case. We hope that all the IP owner should send the IP criminal suspects to the court if they find there is suspicious IP criminal conduct. If the IP administrative body finds suspicious IP criminal conducts when executing its responsibility, they should transfer the case to the public security. They should not simply impose a fine and let the criminal suspect at large.

     2. According to Patent Law, Trademark Law, Copyright Law and Anti-Unfair Competition Law, giving full play to characteristic functions of combining punishment and compensation, fully investigating civil responsibility of infringer, and ultimately protecting the intellectual property right.

     According to relevant laws, the judicial remedy for intellectual property infringement includes: termination of infringements, elimination of unhealthy effects, public apology, rehabilitation of reputation, paying compensation, etc. The above measures may be applied exclusively or concurrently. As for other serious infringement, in addition to applying the above measures of bearing civil liability, people's courts may confiscate the illegal income, impose fines, etc. When ordering compensation for IPR infringement, People's Courts shall consider not only the economical loss of the owner, but also the mental anguish.

     Judges noticed that termination of infringement and paying compensation are not only the core and key link of various stipulated civil responsibilities, but also the fundamental interest the sufferer is looking for. Chinese judges use their successful experience in general civil tort law on the intellectual property litigation. In the case where termination of infringements, removal of immediate threaten become necessary, Chinese courts may make an advanced order upon the request of applicant or on the basis of their authority. That is to say that, in an intellectual property litigation, judges may not only issue an order similar to permanent injunction of infringement, but also issue an order similar to temporary injunction during the litigation, including at the very beginning of the law suit. Even in the preparation period of infringement, the courts may issue orders to eliminate a threaten of the infringement.

     According to law and the judicial explanation of the Supreme People's Court. there are three methods of calculating compensation for intellectual property infringement: The first one is taking the actual losses of the intellectual property owner caused by infringement as a standard for computation of compensation. The second one is taking the illegal income of infringer as a standard for computation of compensation. The third one is taking more than a fair and reasonable royalty or transfer fee for the infringed intellectual property as a standard for computation of compensation.

     Besides, Chinese judges have also created and accumulated other methods of calculating compensation during hearing intellectual property infringement cases. For example, when calculating the loss for trademark infringement we may take the result of the number of infringement products multiplying the reasonable profit per each brand product of the trademark owner. It is worth to mention that we have used the concept of "statutory damages" to decide a fixed amount as compensation when both the actual loss of intellectual property owner and the profits of infringer are too difficult to be proved. The fixed amount of compensation is ranging from 5,000RMB to 500,000RMB at court's discretion in view of the toe of and appraised value of the infringed intellectual property, the time frame of the infringement the damages suffered by the intellectual property owner, etc. Under certain conditions, Chinese judge may also award IP owner a reasonable amount of attorney fee and the costs of stopping and eliminating the infringement.

     Chinese judges have improved and enriched their theory of intellectual property infringement during the judicial practice and paid great attention to using the presumptive tort doctrine on confirmation of the civil compensation responsibility of the infringer. Chinese judges have gradually reached the following common view in the trial of intellectual property infringement cases: l) When IP owner requests to stop an infringement, this IP owner needs not to prove that the infringer has a bad faith, the judge may issue a temporary injunction order or even a substantive judgement of terminating the infringement without considering whether or not the infringer is wrong intentionally, as long as the infringer has conducted the infringement defined by law. 2) When IP owner requests the infringer to take civil responsibility, such as compensation of loss, the infringer shall be presumed wrong in mind as long as it is proved that the infringer has executed infringement prohibited by laws. However, the infringer will not take civil responsibility, such as compensation, only if he can successfully prove that he did not have bad faith. In another word, if the infringer can not prove or failed in proving, he will be judged to take civil responsibility. 3) According to laws, regulations, rules or agreements between parties, the seller has an obligation of taking reasonable care not to sell or counterfeiting goods. The seller shall take a corresponding civil responsibility as long as he sold the infringing goods, even if he has only a light fault in mind. 4) If the seller who sold the infringing goods can provide enough evidences to prove that he had not intention or negligence, he will not have to take a responsibility of compensation. If the seller continues his sale after he is informed the fact he shall take the responsibility for intentional infringement. 5) If someone has conducted an action prohibited by intellectual property law, even if he has evidences to prove that he did not know or he should not know the wrong doing, the judges may still order him to return the improper income, or make a reasonable fixed amount of compensation, or take both under a certain condition.

     3. Strictly implementing Civil Procedure Law and the judicial explanation of Supreme People's Court regarding trial procedure, ensuring justified execution of judicial protection of intellectual property by establishing special judicial organ and improving litigation procedure, etc.
Recently, Chinese courts have made positive efforts on establishing special trial chambers of intellectual property. Up to now, special IP trial chambers have been established in Higher People's Courts in Beijing, Shanghai, Tianjin, Guangdong, Fujian, Jiangsu, Hainan, Sichuan, Cbongqing, Henan, Liaonnig, etc. as well as in Intermediate People's Court of a number of cities. This type of IP trial chamber has also been established in the district court of a certain number Hi-tech economy development zone, focusing on the IP cases and disputes of technology transfer contract. The Supreme People's Court also set up its IP trail chamber in October of 1996. In those courts without IP trail chamber, a fixed panel has gradually handled all IP related cases. This is a signal showing that the IP judiciary field is taking off along the specialization road.

     In order to higher level of IP judiciary protection, considering the comparative fewer case number, intermediate People's Court has become the first instance court for civil IP cases in the area without IP trail chamber. For patent disputes, the designated intermediate People's Court has jurisdiction as trail court. In order to perfect the jurisdiction system of IP cases, the Chinese judges has proposed that the courts of the selling place have jurisdiction over the infringement cases involving selling of infringing goods. If the plaintiff is after the manufacture rather than the seller, the courts in the area where the manufacture taking place (normally the residence place of the manufacture) has jurisdiction while the manufacturing place is not the selling place. When the manufacture and the seller are co-defendant in a lawsuit in the selling place of the infringing goods, the courts of the selling place has jurisdiction. When the seller of infringing goods is affiliated organ of the manufacture its selling conduct is considered as the selling conduct of the manufacture. When the plaintiff pursues the manufacture's conduct of selling and manufacturing, the courts in the selling place has jurisdiction. All the foreign related IP cases should strictly follows the Chapter 25 of the Civil Procedure.

     Because the IP rights are granted from various administration and the ultimate granting power is not in the People's Court. There are IP cases where both plaintiff and defendant owns conflicted IP rights. These cases are: 1) Conflicting IP rights belong to the same type of IP, such as patent for invention against patent for invention, utility model against utility model, etc. 2) Conflicting IP rights belong to different categories of D, such as design patent against trademark, trademark against copyright, trademark against the prior used goods in packaging and trade name, trademark against corporate name, etc. When taking such cases, the People's Court should let the parties to resolve the conflicting rights in the administrative body according the revocation or invalidation procedures, and then, handle the IP infringement disputes. If the conflicting of IP rights remain unsolved after the relevant revocation and/or invalidation procedure, or the relevant administrative authority has not made a decision over the conflicting IP rights within 3 months from the date of filing request by the party without justified reason, the People's Court will take the principles of honesty and protecting of lawful right of citizen and legal person, and provide the protection to the earliest granted IP owner or the prior user the lawful civil right of continuing using the related property.

     In view of the strong professional requirement of the IP cases, Chinese Courts require the parties to submit supporting evidence before the opening of hearing. The submitted evidences are exchanged among the parties. The evidences relating to facts finding, including professional opinion has to be interrogated in the court before them to be accepted by the court. The Supreme People's Court has recently ruled the relevant Higher People's Court to form a different panel and re-try the IP case involving submission of evidence without interrogating in court.

     Prescription of IP related cases should follow that of civil law and relevant authorities. However, generally speaking, IP infringement is a continuing conduct. Some of them are lasting even quite a long time. IP owners may have not pursued infringement within the 2 years prescription time counting from the date of knowing or should have known the infringement. When the IP owner brings infringement lawsuit, his IP right is still valid, the infringement is still happening. Under such a circumstance, we believe that applying the 2 years prescription time should not exclude these cases. In the entire valid period of the IP right the court should order the termination of the infringement. The compensation should be calculated starting from 2 years prior the filing of the lawsuit. Any infringement earlier than that 2 years should not be considered.

     As the highest judiciary body, the Supreme People's Court has paid attention to IP protection. So far, the Supreme People's Court has heard and ruled a bunch of appeal IP cases, including cases with impact nationwide. In the firs half of this year, The Supreme People's Court has ruled on 46 IP cases, as well as made quite a few judicial explanation. It worth to mention that the Supreme People's Court has looked into three IP cases with final decision were made by relevant Higher People's Court, and found that there were clear error in both facts finding and applying of law. Therefore, the Supreme People's Court ruled to stop the execution of the final decisions and re-try the case by different panel in those Higher People's Court. I believe that these rulings clearly reflect the determination of the Supreme People's Court on strengthening the judicial supervision.

     We are about to come into a new century. Chinese judges fully appreciate the task in front of them. The Chinese IP protection system is confronting the 'challenges of Hi-tech. In order to meet these challenges, quite a few IP laws are undertaking revision. Chinese judges will take in part of these assignments actively, make the necessary judicial explanations, ruling principles and experiences a part of relevant statutes, and constitute their efforts in making the IP protection mechanism the most effective part of building up the legal system and democracy. While continuing the establishment of the specialized judicial organ, Chinese courts will broaden the IPR protection scope and strengthen the enforcement of IPR. Chinese judges are closely monitoring the impact of the digitized information on IP protection, as well as the protection of network literatures by copyright. The IP trail chamber of the Supreme People's Court is cooperating with the Patent Re-examination Board in solving the issues of delaying infringement litigation by re-examination of utility model patent and supporting the China Intellectual Property Bureau to set up a utility model related prior litigation searching body. If litigation is brought to the court with confirmation of the validity of utility model patent the court will no longer declare the suspending of the litigation on the basis of patent invalidation procedure.
Chinese judges hold the position of full scope IP protection. Legislative, judicial, administrative, and social effort should be cooperated with that of IP owner in realizing the full scope IP protection. We firmly support the suppression of IP infringement conduct such as pirating and passing off. We fully appreciate that the judicial IP protection is the most important part of the P protection system. We are devoted to our duty. We also understand that the Chinese courts have formidable task in facing the IP infringement. There are many improvements need to be done in the judicial system. We believe that the internationlized infringement has brought IP advocates all over the world together. We are willing to discuss and exchange . views on all IP issues, with our foreign colleagues, help each other and make our cooperation mutual beneficial.

v Lesson Ten 

     What You Should Know About the LLC in the United States.  A limited liability company (LLC) combines attributes from both corporations and partnerships (or for one-person LLCs, sole proprietorships): the corporation's protection from personal liability for business debts and the simpler tax structure of partnerships. And while setting up an LLC is more difficult than creating a partnership or sole proprietorship, running one is significantly easier than running a corporation.  Here are some features of LLC:

 1.Number of Members
     Contrary to what you may have learned just a few years ago, you can now form an LLC with just one person in every state except Massachusetts, which requires an LLC to have two members. If you want to form a one-member LLC in 
Massachusetts and you are married, you can make your spouse your LLC's second member.  While there's no maximum number of owners that an LLC can have, for practical reasons you'll probably want to keep the group small. An LLC that's actively owned and operated by more than about five people risks problems with maintaining good communication and reaching consensus among the owners.
 2.Limited Personal Liability
     Like shareholders of a corporation, all LLC owners are protected from personal liability for business debts and claims. This means that if the business itself can't pay a creditor -- such as a supplier, a lender or a landlord -- the creditor cannot legally come after any LLC member's house, car or other personal possessions. Because only LLC assets are used to pay off business debts, LLC owners stand to lose only the money that they've invested in the LLC. This feature is often called "limited liability."
 3.Exceptions to Limited Liability
    While LLC owners enjoy limited personal liability for many of their business transactions, it is important to realize that this protection is not absolute. This drawback is not unique to LLCs, however -- the same exceptions apply to corporations. An LLC owner can be held personally liable if he or she:
  1) personally and directly injures someone
  2) personally guarantees a bank loan or a business debt on which the LLC defaults
  3) fails to deposit taxes withheld from employees' wages
  4) intentionally does something fraudulent, illegal, or clearly wrong-headed that causes harm to the company or to someone else, or treats the LLC as an extension of his or her personal affairs, rather than as a separate legal 
entity.
     This last exception is the most important. In some circumstances, a court might say that the LLC doesn't really exist and find that its owners are really doing business as individuals, who are personally liable for their acts. To keep this from happening, make sure you and your co-owners:
  1) Act fairly and legally. Do not conceal or misrepresent material facts or the state of your finances to vendors,creditors or other outsiders.
  2) Fund your LLC adequately. Invest enough cash into the business so that your LLC can meet foreseeable expenses and liabilities.
  3) Keep LLC and personal business separate. Get a federal employer identification number, open up a business-only checking account, and keep your personal finances out of your LLC accounting books.
  4) Create an operating agreement. Having a formal written operating agreement lends credibility to your LLC's separate existence.
 4.Business Insurance
     A good liability insurance policy can shield your personal assets when limited liability protection does not. For instance, if you are a massage therapist and you accidentally injure a client's back, your liability insurance policy should cover you. Insurance can also protect your personal assets in the event that your limited liability status is ignored by a 
court.
     In addition to protecting your personal assets in such situations, insurance can protect your corporate assets from lawsuits and claims. Be aware, however, that commercial insurance usually does not protect personal or 
corporate assets from unpaid business debts, whether or not they're personally guaranteed.
 5.LLC Taxes
     Unlike a corporation, an LLC is not considered separate from its owners for tax purposes. Instead, it is what the IRS calls a "pass-through entity," like a partnership or sole proprietorship. This means that business income passes through the business to each LLC member, who reports his share of profits -- or losses -- on his individual income tax return. Each LLC member must make quarterly estimated tax payments to the IRS.
     While an LLC itself doesn't pay taxes, co-owned LLCs must file Form 1065, an informational return, with the IRS each year. This form, the same one that a partnership files, sets out each LLC member's share of the LLC's profits (or 
losses), which the IRS reviews to make sure the LLC members are correctly reporting their income.
 6.LLC Management
     The owners of most small LLCs participate equally in the management of their business. This arrangement is called "member management."
     The alternative management structure -- somewhat awkwardly called "manager management" -- means that you designate one or more owners (or even an outsider) to take responsibility for managing the LLC. The nonmanaging 
owners (sometimes family members who have invested in the company) simply sit back and share in LLC profits. In a manager-managed LLC, only the named managers get to vote on management decisions and act as agents of the LLC. Choosing manager management, however, can complicate securities issues for your LLC.
 7.Forming an LLC
     To create an LLC, you begin by filing "articles of organization" with the LLC division of your state government. This office is often in the same department as the corporations division, which is usually part of the Secretary of State's office. Filing fees are typically $100 or less.
     Many states supply a blank one-page form for the articles of organization, on which you need only specify a few basic details about your LLC, such as its name and address and contact information for a person involved with the 
LLC (usually called a "registered agent") who will receive legal papers on its behalf. Some states also require you to list the names and addresses of the LLC members.
     In addition to filing articles of organization, you must create a written LLC operating agreement. While you don't have to file your operating agreement with the state, it's a crucial document because it sets out the LLC members' rights and responsibilities, their percentage interests in the business and their share of the profits.
     Finally, your LLC must fulfill the same local registration requirements as any new business, such as applying for a business license and registering a fictitious or assumed business name.
 8.Ending an LLC
     Under the laws of many states, unless your operating agreement says otherwise, when one member wants to leave the LLC, the company dissolves. In that case, the LLC members must fulfill any remaining business obligations, 
pay off all debts, divide any assets and profits among themselves, and then decide whether they want to start a new LLC to continue the business with the remaining members.
     Your LLC operating agreement can prevent this kind of abrupt ending to your business by including "buy-sell" provisions, which set up guidelines for what will happen when one member retires, dies, becomes disabled or leaves 
the LLC to pursue other interests.
                                                                                                                             (  Materials from www.findlaw.com )

v Lesson Eleven 
       An Overview of Contracts
       Contracts are promises that the law will enforce. The law provides remedies if a promise is breached or recognizes the performance of a promise as a duty. Contracts arise when a duty does or may come into existence, because of a promise made by one of the parties. To be legally binding as a contract, a promise must be exchanged for adequate consideration. Adequate consideration is a benefit or detriment which a party receives which reasonably and fairly induces them to make the promise/contract . For example, promises that are purely gifts are not considered enforceable because the personal satisfaction the grantor of the promise may receive from the act of giving is normally not considered adequate consideration. Certain promises that are not considered contracts may, in limited circumstances, be enforced if one party has relied to his detriment on the assurances of the other party.
       Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law principally includes the terms of the agreement between the parties who are exchanging promises. This private law may override many of the rules otherwise established by state law. Statutory law may require some contracts be put in writing and executed with particular formalities. Otherwise, the parties may enter into a binding agreement without signing a formal written document. Most of the principles of the common law of contracts are outlined in the Restatement Second of The Law of Contracts published by the American Law Institute. The Uniform Commercial Code, whose original Articles have been adopted in nearly every state, represents a body of statutory law that governs important categories of contracts. The main Articles that deal with the law of contracts are Article 1 (General Provisions) and Article 2 (Sales). Sections of Article 9 (Secured Transactions) governs contracts assigning the rights to payment in security interest agreements. Contracts related to particular activities or business sectors may be highly regulated by state and/or federal law.
       In 1988, the United States joined the United Nations Convention on Contracts for the International Sale of Goods which now governs contracts within its scope.

                                                                                               (Materials from www.law.cornell.edu)

v Lesson Twelve 
   Promissory Estoppel
      Promissory estoppel is the doctrine that prevents a party from acting in a certain way because the first party promised not to, and the second party relied on that promise and acted upon it.
      Promissory estoppel in English law
      In English law, a promise made without consideration is generally not enforceable, and is known as a gratuitous promise. For example, a car salesman promises not to sell a car over the weekend, but does so, the promise cannot be enforced. If however, the car salesman accepts one penny in consideration for the promise, the promise is binding and enforceable in court. Estoppel is one of the exceptions to this rule.
      The doctrine of Promissory Estoppel was first developed in Hughes v. Metropolitan Railway Co [1877] but was lost for some time until it was resurrected by Lord Denning in the controversial case of Central London Property Trust Ltd v.       High Trees House Ltd [1947] K.B. 130.
      In this case, the claimants let a block of flats to the defendants at an annual rent of ￡2500. However, they agreed to accept a reduction in rent to ￡1250, because the defendants were unable to find enough tenants due to the evacuation of London during WWII. This promise to accept a lesser rent was unsupported by consideration. At the end of the war the flats became fully let, and the claimants demanded the full rent, plus arrears for the period during the war. Denning J held that they were only entitled to the full rent from the end of the war. The claimants were estopped from going back on their promise, because it would have been inequitable for them to do so.
      Promissory estoppel requires (1) an unequivocal promise by words or conduct, (2) a change in position of the promisee as a result of the promise (not necessarily to their detriment), (3) inequity if the promisor was to go back on the promise. Estoppel is "a shield not a sword" — it cannot be used as the basis of an action on its own. It also does not extinguish rights. In High Trees the plaintiff company was able to restore payment of full rent (although estopped back rent was lost) from early 1945, but would have been able to restore full rent at any time after the initial promise provided a suitable period of notice had been given.
      Estoppel is an equitable (as opposed to common law) construct and is therefore discretionary. In the case of D & C Builders v Rees the courts refused to recognise a promise to accept a part payment of ￡300 on a debt of ￡482 on the basis that it was extracted by duress. In Combe v. Combe Denning elaborated on the equitable nature of estoppel by refusing to allow its use as a "sword" by an ex-wife to extract funds from the destitute husband.
      Promissory estoppel is not available when one party promises to accept a lesser sum in full payment of a debt, unless the debtor offers payment at an earlier date than was previously agreed. This is the rule formulated in Pinnel's Case (1602) 5 Co Rep 117a, and affirmed in Foakes v. Beer (1884) 9 App Cas 605.
      Promissory estoppel in American law
In the many jurisdictions of the United States, promissory estoppel is generally an alternative to consideration as a basis for enforcing a promise. It is also sometimes referred to as detrimental reliance.
      The American Law Institute included the principle of estoppel into § 90 of the 'Restatement of Contracts', stating:
      A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.
      The distinction between promissory estoppel and equitable estoppel should be noted:
      Equitable estoppel is distinct from promissory estoppel. Promissory estoppel involves a clear and definite promise, while equitable estoppel involves only representations and inducements. The representations at issue in promissory estoppel go to future intent, while equitable estoppel involves statement of past or present fact. It is also said that equitable estoppel lies in tort, while promissory estoppel lies in contract. The major distinction between equitable estoppel and promissory estoppel is that the former is available only as a defense, while promissory estoppel can be used as the basis of a cause of action for damages. 28 Am Jur 2d ESTOPPEL AND WAIVER § 35
     A simple example: you go to a store and see a sign that the price of one of store owner's products, a radio, is $10. You speak with the owner and tell him you will get the money and come back later that day to purchase it; there is no discussion of price. He says that when he returns he will be happy to deal with you as he deals with all his customers, but that if he sells all the radios (he has three) then he will not be able to help you. You go sell your watch for $10 (while it was really worth $15, but since you wanted the money right away you could not wait for the best price), and you sold it to someone who you knew would pay $10. When you return, the sign says $11, and the owner tells you he has changed the price. In equity, he may be estopped from his conduct. You relied upon his representation that he would sell you the radio when you came back the same day with the money; you had sold your watch at a price lower than the market price, and thus you have acted to your detriment. (Note that if your watch was worth $10, and you received fair price, there would not be any detriment on your part).
      An example of promissory estoppel in the construction of a building: A construction company puts together the estimates of a number of subcontractors and quotes its client a price. The client accepts, and construction begins. However, thereafter one of the subcontractors drastically raises the price above its original estimate. Because of this change, the construction company cannot profit from the building. A court would be likely to give the construction company promissory estoppel, which would allow them to pay what the subcontractor originally estimated rather than the new, higher price.
      Note that, in some common law jurisdictions, if when you had approached the owner and indicated that you wanted to purchase one of those radios and he had said "Sold," you may be able to argue that a contract had been created, even if you had to go get the money. But under the classical idea of consideration, until you paid him, the contract would not have concluded. (This is not necessarily true in any common law jurisdiction; a promise to pay the owner is good consideration if it is made in exchange for a promise to sell you the radio later on. This is called a bilateral contract: a promise in exchange for a promise. Both promises are enforceable.)
      One contentious point during the drafting of the Restatement was how to calculate damages from promissory estoppel. During the deliberations, an example was created: a young man's uncle promised to give him $1,000 to buy a car, the young man bought a $500 car, and the uncle reneged. The reporter of the Restatement believed that the young man should be entitled to all $1,000 (the amount promised); many other legal scholars believed that the young man should only be entitled to $500 (the amount he actually lost). The language eventually adopted for the Second Restatement read: "The remedy granted for breach may be limited as justice requires."

                                                                                (Materials from http://encyclopedia.laborlawtalk.com)

v Lesson Thirteen 
   Consideration
     Consideration is a central concept in the common law of contracts. Under classical contract theory, consideration is required for a contract to be enforceable. (Modern contract theory has also permitted remedies on alternate theories such as promissory estoppel).
     There are two common theories for consideration. The first is the "benefit-detriment theory", in which a contract must be either to the benefit of the promisor or to the detriment of the promisee to constitute consideration. The second is the "bargain theory", in which the parties subjectively view the contract to be the product of an exchange or bargain. The bargain theory has largely replaced the benefit-detriment theory in modern contract theory, but judges often cite both and unknowingly confuse the two models in their decisions. These theories usually overlap; in standard contracts, such as a contract to buy a car, there will be both an objective benefit and detriment (the buyer experiences a benefit by acquiring the car; the seller experienced a detriment by losing a car) and the subjective experience of entering into a bargain. However, there are certain contracts which satisfy one but not the other. For instance, a deal in which the promisee feels subjectively relieved, but hasn't actually gained any legal rights, might satisfy the bargain theory but not the benefit-detriment theory. Alternately, a deal in which an actor takes detrimental actions possibly in reaction to an offer, without having viewed the deal as a bargain, wouldn't be viewed as a contract under the law.
     The main purpose of the shift from benefit-detriment to bargain theory is to reconcile consideration theory with other aspects of contract theory. For instance, courts will not inquire as to the adequacy of consideration. If someone honestly dislikes their car and wants to sell it for fifty dollars, the law will not consider this an invalid deal. However, the court will reject "consideration" that was not truly bargained for. Occasionally the court may refer to "adequate" or "valuable" consideration, but in reality the court is not examining the adequacy of consideration, but whether or not it was bargained for. Another term for this sort of non-bargained-for payment is nominal consideration. The traditional notion that courts won't look into the adequacy of consideration, an ancient notion in the English common law, doesn't square with the benefit-detriment theory (in which courts are implicitly analyzing if the parties are receiving a sufficient benefit) but does square with the bargain theory (in which only the subjective intentions of the parties are considered).
     For example, in Fischer v. Union Trust Co., 101 N.W. 852, the court held that $1.00 paid in exchange for the sale of real property within the city of Detroit in 1902 was not "bargained for" by the seller, and thus the transaction was void. The point was NOT that the amount of money involved was too small to be adequate consideration, but that the seller did not convey the property in exchange for the buyer's promise to pay $1.00. There was no consideration, not because $1.00 was too small an amount to "count", but because the $1.00 offered the seller by the buyer did not induce the seller to part with the property.
     There are three main purposes cited for the consideration requirement. The first is the cautionary requirement - parties are more likely to look before they leap when making a bargain then when making an off-the-cuff promise of a gift. The second is the evidentiary requirement - parties are more likely to commemorate, or at least remember, a promise made due to a bargaining process. The third is the channeling requirement - parties are more likely to coherently stipulate their specific desires when they are forced to bargain for them. Each of these rationales ensure that contracts are made by serious parties and are not made in error.
     Certain other stipulations regarding consideration include the following:
     Past consideration is not valid. Something that is already done is done, and it does not change the legal position of the promisor. Any goods or services to be exchanged must be exchanged at or after the time of contract formation. However, a promise to pay a pre-existing debt or obligation IS enforceable.
     Preexisting duty does not count as consideration.
     An illusory promise, or one which the promisor actually has no obligation to keep, does not count as consideration. The promise must be real and unconditional. This doctrine rarely invalidates contracts; it is a fundamental doctrine in contract law that courts should try to enforce contracts whenever possible. Accordingly, courts will often read implied-in-fact or implied-in-law terms into the contract, placing duties on the promisor. For instance, if a promisor promises to give away a third of his earnings for the year, he has no actual obligation to do anything; if he earns nothing, a third of zero is zero. However, courts will generally read in an implied term that he will use reasonable efforts to try to gain income. Another, more modern approach to illusory promises is to treat them as "bargaining for a chance". Even though the promisor has no actual duties, the promisee may still benefit by the possibility that the contract may lead to the promisor fulfilling certain duties, and that possibility itself is beneficial.
     Liquidated debt, or a payment which is fixed and undisputed, cannot be negotiated for consideration. Unliquidated debt, or a payment which is disputed, can be used for consideration.
While the concept of consideration is not generally accepted in civil law systems, some recognize the similarity between consideration and cause, as some civil codes recognize that all contracts must have a cause, though this is not generally accepted.

                                                                      Retrieved from "http://en.wikipedia.org/wiki/Consideration"

v Lesson Fourteen 
     The Uniform Commercial Code
     The Uniform Commercial Code (UCC) is one of the uniform acts that has been promulgated in an attempts to harmonise the law of sales and other commercial transactions in the fifty U.S. states in the United States of America.
     The UCC was the first of the Uniform Acts to be proposed, and is the longest and most elaborate such act. It is a joint project of the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI). The Code, as the product of private organizations, is not itself the law, but only has the force of law if enacted by states. The ALI-NCCUSL has also established a permanent editorial board for the Code which has issued a number of official comments and other published papers concerning the Code. Although these commentaries do not have the force of law, courts interpreting the Code will often cite them as persuasive authority in determining the effect of one or more provisions.
     The Code, in one or another of its several revisions, has been enacted in 49 of the 50 states. Louisiana, the sole holdout, has enacted most of the Code, but because that state's commercial law is based on civil law and the Napoleonic Code rather than on common law, it is difficult to harmonize procedure and terminology with the UCC.
     The Uniform Commercial Code deals with the following subjects under consecutively numbered Articles:
     1. General provisions, (including most definitions and rules for interpretation);
     2. Sales of goods,
     2A. Leases of goods,
     3. Negotiable instruments;
     4. Bank deposits,
     4A. Funds transfers;
     5. Letters of credit;
     6. Bulk transfers, (recommended for repeal);
     7. Bills of lading, warehouse receipts and other documents of title;
     8. Investment securities;
     9. Secured transactions (liens and security interests in personal property);
     In 1989, the National Conference of Commissioners on Uniform State Laws recommended that Article 6 of the UCC, dealing with bulk sales, be repealed as obsolete. It remains in force in several jurisdictions.
     The controversy surrounding what is now termed the Uniform Computer Information Transactions Act (UCITA) originated in the process of revising Article 2 of the UCC. The provisions of what is now UCITA were originally meant to be "Article 2B" within a revised Article 2 on Sales. As the UCC is the only uniform law that is a joint project of NCCUSL and the ALI, both associations must agree to any revision of the UCC. The proposed final draft of Article 2B met with controversy within the ALI, and as a consequence the ALI did not grant its assent. The National Conference of Commissioners on Uniform State Laws responded by renaming Article 2B and promulgating it as the Uniform Computer Information Transactions Act. As of October 12, 2004, only Maryland and Virginia have adopted UCITA.
     The overriding philosophy of the Uniform Commercial Code is to allow people to make the contracts they want, but to fill in any missing provisions where the agreements they make are silent. The law also seeks to impose uniformity and streamlining of routine transactions like the processing of checks, notes, and other routine commercial paper. The law frequently distinguishes between merchants, who customarily deal in a commodity and are presumed to know well the business they are in; and consumers, who are not.
     It also seeks to discourage the use of legal formalities in making business contracts, in order to allow business to move forward without the intervention of lawyers or the preparation of elaborate documents. This last is perhaps the most questionable part of its underlying philosophy; it has been argued that legal formalities discourage litigation by requiring some kind of ritual that provides a clear dividing line that tells people when they have made a final deal they could be sued over.
                                         Materials from"http://en.wikipedia.org/wiki/Uniform_Commercial_Code"

v Lesson Fifteen 
     Jury Trials
     1.The role of jury trials
     In most common law jurisdictions, the jury is responsible for finding the facts of the case, while the judge determines the law. These "peers of the accused" are responsible for listening to a dispute, evaluating the evidence presented, deciding on the facts, and making a decision in accordance with the rules of law and their jury instructions. Typically, the jury only judges guilt or innocence, but the actual penalty is set by the judge. In France and countries organized in the same fashion, the jury and several professional judges sit together to determine guilt first. Then, if guilt was determined, they decide the appropriate penalty. Some jurisdictions with jury trials allow the defendant to waive their right to a jury trial, this leading to a bench trial. Jury trials tend to occur only when a crime is considered serious. In some jurisdictions, such as France and Brazil, jury trials are reserved, and compulsory, for the most severe crimes and are not available for civil cases. In Brazil, for example, trials by jury are applied in cases of First and Second-degree murders, even if only attempted. In others, such as the United Kingdom, jury trials are only available for criminal cases and very specific civil cases. In the United States, jury trials are available in both civil and criminal cases.In the United States, because jury trials tend to be high profile, the general public tends to overestimate the frequency of jury trials; the vast majority of cases are in fact settled by plea bargain which removes the need for a jury trial.
     2.Pros and cons
     In countries where jury trials are common, they are often seen as an important check against state power. Many also believe that a jury is likely a more sympathetic hearing, or a fairer one, to the defendant than representatives of the state would.
     This last point may be disputed. For example, in highly emotional cases, such as child rape, the jury may be tempted to convict based on personal feelings rather than on conviction behind reasonable doubt. Former attorney, then later minister of Justice Robert Badinter remarked about jury trials in France that they were like riding a ship into a storm, because they are much less predictable than bench trials.
     Another issue with jury trials is the potential for jurors to be swayed by prejudice, including racial considerations. An infamous case was the 1992 trial in the Rodney King case in California, in which white police officers were acquitted of violently beating a black man by a jury consisting mostly of whites, without any black jurors, despite an incriminating videotape of the action. This led to widespread questioning about the case and riots ensued.
     The positive belief about jury trials in the UK and the US contrasts with popular belief in many other nations, in which it is considered bizarre and risky for a person's fate to be put into the hands of untrained laymen. Consider Japan, for instance, which used to have optional jury trials for capital or other serious crimes between 1928 and 1943. The defendant could freely choose whether to have a jury or trial by judges, and the decisions of the jury were non-binding. During the Tōjō-regime this was suspended, arguably due to the popular belief that any defendant who risks his fate on the opinions of untrained laymen is almost certainly guilty.