Mediation Institutions The Hong Kong Mediation Accreditation Association

Mediation institutions the hong kong mediation

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Mediation Institutions The Hong Kong Mediation Accreditation Association Limited (HKMAAL) Founded in 2012 under the auspice of the Department of Justice, as a non-statutory, uniform accreditation body for all mediators in Hong Kong: Oversees the general state of mediation pursuant to the Mediation Ordinance and the Hong Kong Mediation Code (adopted by the Department of Justice in 2010) Maintains panels of mediators Regularises mediation procedures Regulates mediator accreditation assessments 53 54
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28 Civil Litigation Arbitration Mediation Adjudicative Yes Yes No Adversarial Yes Yes No Doctrine of precedent Yes Yes No Legal representation normal Yes Yes No Final binding outcome (subject to appeal) Yes Yes No Parties control the outcome No No Yes Consensual No Yes Yes Confidential No Yes Yes Impartial third-party Yes Yes Yes CRIMINAL JUSTICE 55 56
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29 Fundamentals of Criminal Law Criminal law is concerned with offensive misconduct contrary to the community as a whole. Much of criminal law originated from case law , which rested on community norms and universal common law principles . The systemisation of criminal law doctrines began in the 17 th and 18 th centuries. The structure of criminal law: Rules defining offences as criminal Principles assigning ‘criminal liability’ or legal responsibility for offences 57 58
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30 CRIMINAL OFFENCES OFFENCES AGAINST THE PERSON e.g., murder OFFENCES AGAINST PROPERTY e.g., theft CRIMINAL OFFENCES STATUTORY OFFENCES e.g. administering a noxious substance as to endanger life, s.22, Offences Against the Person Ordinance (Cap.212). COMMON LAW OFFENCES e.g. misconduct in public office 59 60
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31 CRIMINAL OFFENCES INDICTABLE OFFENCES e.g. robbery, s.10, Theft Ordinance (Cap.210) SUMMARY OFFENCES e.g. careless cycling, s.46, Road Traffic Ordinance (Cap.374) No prosecution after 6 months Fundamental General Principles of Criminal Procedure: Presumption of innocence Simultaneity of actus reus and mens rea Guilt be proved beyond reasonable doubt Right to a fair trial Right of silence Privilege against self-incrimination 61 62
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32 Presumption of Innocence The presumption of innocence recognises the vulnerability of an accused person . It is derivative of the common law commitment to individual liberty against arbitrary State action, a classical defence for which is today known as Blackstone’s Ratio: it is ‘better that ten guilty persons escape, than that one innocent suffer’. The accused bears no burden of proof that he is innocent; rather, it is entirely on the prosecution to prove guilt . Woolmington v DPP (1935), the House of Lords (Lord Sankey LC): “[T]he principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained .” 63 64
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33 Simultaneity of Actus Reus and Mens Rea ‘Actus non facit reum nisi mens sit rea’: An act alone does not make a person criminally liable, the mind must also be legally blameworthy.
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