Equitable Remedies in Common Law System
摘要
ToEquitable remedies studyCommon law system liability based on fairness in China’s tort law, one would naturally associate it with equity of the common law systemCommon law system. Nevertheless, in modern English statute, provisions relating to what is “equitable” are usually construed as merely referring to what is “fair”. The natural affinity of the two can be seen. Equity was historically a form of remedy granted by the court that enjoyed exclusive equitable jurisdiction prior to the fusion of the courts by the Judicature Acts 1873–1875. It is important to note that, what is known today as equity is a general term for a set of rules of law in English law. For historical reasons, these rules were originally derived from equity rather than from the common lawCommon law, and equity itself does not mean it is more “equitable” than the common lawCommon law. Equity originated in England, and is prevalent in common law systemsCommon law system. Rules 1 and 2 of the Federal Rules of Civil Procedure, adopted in 1938, eliminated the distinctionDistinction between law and equity jurisdiction in the federal courts. In federal procedure there is only “one form of action”. At the State Law level in the United Sates, beginning with New York in 1848, most states have abandoned the separation of law and equity as two separate court systems. Only a very few states continue to retain separate courts of law and equity. In view of its English law origin, this chapter will focus on England, with reference to Australia which has a rather advanced modern equity.