Legal Personality
Instructions:
TMA 04
The cut-off date for TMA 04 is 12:00 midday (UK local time) on 10 May 2017.
This is the latest date by which your TMA must reach your tutor. You must submit your TMA using the online TMA system.
TMA 04 consists of three questions. You should answer all questions in this TMA. Your answers should be written in your own words. You do not need to use additional resources to complete your answers. All the information you require is provided in the module materials.
It is important that your answers are written in full sentences and in clear and concise language. You should write in formal English and you should take care to ensure that your language is grammatically correct. Your work should be arranged into paragraphs and you should avoid using bullet points and other types of lists. Please write your answers in the third person except question 3 which should be written in the first person.
It is important to write in your own words. This means that you should explain the content of the module materials by reformulating the words within them. The OU Law School Undergraduate Assessment Guide contains guidance on writing in your own words.
The total word limit for TMA 04 is a maximum of 1500 words. Remember, all the words you use to answer the questions, including quotations and citations count towards the overall word limit.
We would suggest that you use the following number of words for each question:
Question 1 750 words
Question 2 550 words
Question 3 200 words
You must provide a reference list and a word count. The reference list is not included in the word count.
Questions
Question 1
Explain legal personality and evaluate whether legal personality should be extended.
(55 marks)
Question 2
Bella Smith has been found guilty of robbing Elsie Nelson’s handbag at knife point. The handbag contained £110 in cash, and credit cards. Bella appeared at the Crown Court where she pleaded guilty and a date was set for a sentencing hearing.
Which sentence (a fine, a community sentence or imprisonment) would you argue is the most appropriate? Please explain your sentence with reference to the principles of penal theory.
(35 marks)
Question 3
a.What do you consider to be the most important concept you have learned about during your studies on W101? Explain why you think it is important.
b.How will you change your own way of working, either in your studies or in your employment, as a result of your studies on W101?
(10 marks)
Learning outcomes
TMA 04 tests the following learning outcomes:
Knowledge:
•explain and evaluate legal personality
•explain and evaluate criminal sanctions
•demonstrate and apply reflective practice (Question 3).
Skills:
•research and discuss legal principles in a logical and coherent way
•present and structure information clearly and make accurate use of the English language and legal terminology
•reference and cite relevant material.
Advice
The OU Law School Undergraduate Assessment Guide contains definitions of words used in TMA questions. It also gives advice on referencing and the reference list that you must produce and include at the end of your work. You should read this guide before attempring TMA 04.
This TMA is designed to test your knowledge and understanding of Units 15, 16, 17 and 18.
Question 1
This question asks you to explain legal personality. You will need to consider what constitutes a legal person. You will then need to consider how far legal personality could be extended and you may want to provide examples to illustrate your points. You then need to consider to what extent legal personality should be extended.
Unit 16 provides you with the reading materials relevant to this question.
This is an essay question. You should review the advice on how to construct an essay in Unit 7. An essay should have an introduction, main body and a conclusion. Before starting this question you should consider the feedback your tutor provided in TMA 03 on answering essay questions.
Question 2
This question asks you to decide on the appropriate sentence. To do that you may wish to consider the process and procedure for sentencing. You should then identify and explain the penal theories and relate them to the facts in the question. Unit 18 provides you with the reading materials relevant to this question.
You need to analyse the factual situation and apply the law to reach a reasoned conclusion about remedies available. We recommend that you state the law that enables you to answer the question, work out how the law would operate in relation to the question and then reach a conclusion that answers the question. This is a problem question and you should review the guidance on answering problem questions in Unit 10.
Question 3
This question asks you to reflect on your own learning and performance. This forms part of your Personal Development Planning. You should identify what you consider to be the most important concept you have studied on W101 and explain why you think it is important. You may give examples of ways in which your political or other opinions have changed since you learnt about this concept, or describe the wider impact that you think it has had.
You then need to consider and reflect on your own way of working. What impact has W101 had? What will you change in your studies or in your employment? You may want to identify a particular skill that you have learnt on W101 and consider how it will change your way of working, perhaps in your next module or in your employment.
Finally
•You must demonstrate the ability to find and select relevant material.
•You must demonstrate the ability to address the questions asked. This is very important – you must be clear about exactly what you are being asked to address.
•Every sentence in your TMA must in some way or another contribute to your overall answer.
•Your TMA should be checked prior to submission so that you have addressed any spelling or grammar mistakes.
Once your TMA has been marked and returned, you should reflect on your tutor’s comments and make notes on anything you want to do differently for the next TMA.
Solution
Legal Personality
Question 1
The concept of legal personality has always been considered to be controversial among a lot of jurors and scholars alike. A lot of questions have arisen of late as to how far the legal persons are allowed to operate and to what extent can they have equal rights as natural persons do. As much as legal personality has been considered a standard and defining characteristic of capitalist nations, whereby the corporations within the nation have a chance to carry out business and be held accountable for their actions as individual entities, there is still the question as to how far these liberties should be allowed and enjoyed by the said companies.
Essentially, legal personality is the ability for a person or entity to be able to have legal rights and liberties and therefore can be able to do certain actions like engage in contracts, sue other entities and be sued (Martin, 2003; The Open University, 2016). Thus in order for an entity to be considered to have legal capacity, which is essentially the ability to engage in legal transactions, legal personality is mandatory. Legal personality is not a doctrine that applies only to entities within a nation. For example, in order for an international corporation to do business and come to agreements with other organizations and persons in other nations, the said corporations need to be assumed to be a legal person.
With this definition in mind, legal personality was clearly created as a means to ensure that juridical persons are able to operate and can be held liable for their actions as well as institute legal proceedings against other persons, whether natural or juridical as well (The Open University, 2014). Therefore, the provision for artificial legal persons is fundamental in creating stronger and better businesses that can be able to be run better by one or more natural persons. The ability for two or more natural persons (universitas personarum) to come together and engage in legal transactions as a single entity makes it easier for the said parties to be able to conduct business legally (Deiser, 1908). Additionally, the coverage provided by legal personality essentially protects the said directors of the corporations, thereby ensuring that the actions of the corporation can be dealt with by the corporations as a singular entity and not by the individual shareholders of the said company.
Additionally, the artificial persons can be able to sue other companies and natural persons who may have not held up their legal obligations towards the corporation. The artificial persons are also allowed to purchase and sell property in their own name and also incur debt or provide credit to other institutions and legal persons as well. The artificial persons would also be required to pay taxes to the nation, similar to natural persons, although the general practice is to tax corporations according to separate tariffs to natural persons in order to encourage more persons to form up corporations. The most important characteristic of artificial persons, however, is that they do not die unlike natural persons. Therefore, when the natural persons in charge of the corporation pass on or leave the corporation, it is possible for other persons to continue running the corporation.
The extensions of certain rights to corporations has raised a lot of questions and eyebrows among scholars and experts on the matter. Considering the fact that artificial persons are quite beneficial to the running of businesses and also have a positive impact on the economy as they provide a great amount of revenue from taxes and employ a great number of persons, it is important for these corporations to be awarded legal rights and abilities to conduct business in the most independent manner as possible. Different nations have realized the possibility and advantages of legal persons within their economy and therefore provide for the them within their legal frameworks. A good example is Italy, whereby the Constitution provides for Trade Unions as legal persons, thereby making it possible for the said trade unions to be able to sign agreements on behalf of their members. In Germany, Article 19(3) of the constitutions provides for artificial persons to enjoy the same rights as other legal persons within the nation, as long as the said rights are applicable to the said artificial persons. The world’s fastest growing economy, China, also recognizes that it is necessary for artificial persons to enjoy some form of legal flexibility and rights. In particular, artificial persons in China are able to enjoy civil liberties and are subject to civil obligations so long as the said obligations can be applied to the said companies (Dernelle, 1994). With this in mind, it is my opinion that the legal personality of these artificial persons should be extended in order to foster the growth of the economy.
Question 2
Robbery in the United Kingdom is covered appropriately under Section 8(1) of the Theft Act 1968. According to the Act, the only time one can be charged with robbery is after the person has been indicted. The act further explains that the offence of robbery can only be committed if the suspect brought before the court used force during, before or after the taking of property from the victim (The Open University, 2016). Additionally, the said force must be directed towards the immediate victims of the robbery. If the force is directed at another person, then the charge cannot hold up in court. Additionally, if the act of theft occurs and is completed before the assault takes place, then it can be argued that the robbery did not take place at all (R. v Harris, 1988).
In order to properly sentence a suspect, there are several considerations that should be considered beforehand. The main aspect is the level of violence involved in the robbery (Sentencing Guidelines Council, 2006). The higher amount of violence involved shall mean that the suspect should be handed a tougher punishment in comparison to a robbery with lesser violence involved (The Open University, 2016). However, this is not the only factor. The degree to which the victim is injured should also play a role in the understanding the severity of the crime and likewise would impact greatly on the sentencing of the suspect. The type and nature of the threats also matter and should be put into consideration as well. Finally, the type of weapon that is used to threaten or injure the victim.
Furthermore, there are other mitigating factors that need to be considered in the sentencing process. One of these factors is as to whether the robbery was planned in advance or whether it was unplanned or opportunistic (Sentencing Guidelines Council, 2006). Furthermore, it is important for the court to take into consideration whether the offender was willing to cooperate with the police and the court and return the stolen item.
With regards to Bella Smith, it is clear that the offence was premeditated, due to the fact that she carried a knife with her and used it to rob Elsie Nelson. The offence is clearly not coincidental and therefore the sentence cannot be reduced on these grounds. However, Bella was willing to cooperate with the authorities and furthermore pleaded guilty to the charges. The fact that she was willing to accept her offence. The acceptance of the offence and. pleading guilty also shows that the offender was remorseful and willing to change and not repeat the offence again. It is also clear that the weapon that Bella used to rob Elsie was only used as a threat and did not actually cause physical harm to the victim.
According to the Sentencing Guidelines Council (2006), it is important to put all these factors into consideration in the writing of the judgement and therefore, in my opinion, Bella should serve a jail term of One Year.
Question 3
The unit has been responsible for the development of my legal knowledge. In particular, the understanding of what exactly legal personality entails has been an eye opener to me and has definitely positively impacted my outlook towards the legal field. I now understand why it is important for corporations to be created, as the legal benefits of such entities is immense and can definitely impact the business sector. Furthermore, the creation of legal persons also protects the members of the corporation and assists them in understanding and implementing safe guards to protect them and the company from external attacks and unnecessary legal suits.
In addition to this, I have also gained an added understanding regarding the criminal procedure and the sentencing procedures as well. I have also come to understand that the criminal justice system is not just a punitive system but is also compassionate and seeks to correct the behaviors of the offenders rather than just punish them. It is clear, however that there should be further reforms on the legal system and a few changes into the criminal justice system should be advanced. I will dedicate more time and research into how the criminal justice system can be made better and write more reports on this.
References
Deiser, G. F. (1908). The Juristic Person. University of Pennsylvania Law Review and American Law Register.
Dernelle, G. J. (1994). DIRECT FOREIGN INVESTMENT AND CONTRACTUAL RELATIONS IN THE PEOPLE’S REPUBLIC OF CHINA. DePaul Business Law Journal, 331.
Martin, E. A. (2003). Oxford Dictionary of Law. Oxford: Oxford University.
R. v Harris (The Crown Court 1988).
Sentencing Guidelines Council. (2006). Robbery. London.
The Open University. (2014). Unit 17: An introduction to Civil Remedies. Retrieved from www.open.co.uk
The Open University. (2016). Unit 14: Concepts in criminal and civil liability. Retrieved from www.open.ac.uk
The Open University. (2016). Unit 15: Proof and Fact. Retrieved from www.open.co.uk
The Open University. (2016). Unit 16: Legal Persons. Retrieved from www.open.co.uk