Management Notes

Reference Notes for Management

Concept and Nature of Intellectual Property Rights – Explained in Detail | Business Law

Concept and Nature of Intellectual Property Rights

Concept of Intellectual Property Rights

➦ Intellectual Property Rights are legal rights that are granted to individuals or organizations for their inventions or creations that are the result of human intellect.

➦ Innovation, creativity, and the economic value derived from intellectual assets are protected by these rights.

➦ Intangible assets such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce are included in intellectual property rights.

Intellectual property rights include patents, copyrights, trademarks, and trade secrets. Let’s look at these rights in more detail:

Patent:

It is a legal monopoly granted to inventors for their novel and non-obvious inventions.

For a period of usually 20 years following filing, the patent holder has exclusive rights to manufacture, use, sell, or import the patented invention.

In general, patents cover new and useful processes, machines, compositions of matter, and improvements to them.

Copyrights:

The copyright protects works of authorship, such as books, music, paintings, photographs, movies, and software.

In most countries, copyright protection lasts for the life of the creator plus a certain number of years after their death.

It grants the holder exclusive rights to reproduce, distribute, perform, display, or modify the copyrighted work.

Trademarks:

Trademarks are distinctive signs, symbols, or logos used to distinguish the goods or services of one business from those of others.

Trademarks may be brand names, logos, slogans, or combinations. If the mark is actively used and protected, trademark registration grants the owner exclusive rights to use the mark and can be renewed indefinitely.

Trade Secrets:

Trade secrets are confidential business information that provides its owner with a competitive advantage.

It can include manufacturing processes, formulas, customer lists, marketing strategies, or any other valuable nonpublic information.

As long as reasonable efforts are made to maintain their secrecy, trade secrets may be protected indefinitely, unlike patents and copyrights.

Providing creators and inventors with incentives to innovate while ensuring society benefits from the dissemination of knowledge and cultural works is the purpose of intellectual property rights.

By granting exclusive rights to creators, intellectual property laws encourage investment in research and development, foster creativity, and enable individuals and organizations to reap the rewards of their innovations.

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Law of Company and Insolvency – Major Topics Explained in Detail | Business Law

Law of Company and Insolvency

Law of Company and Insolvency

Meaning of Company

Generally, a company is a legal entity formed by a group of individuals or organizations for the purpose of conducting business activities. It is an artificial person created by law, separate and distinct from its owners, known as shareholders or members. Limited liability, a perpetual existence, transferability of shares, and ease of raising capital are some of the advantages of the company structure.

In a company, capital, resources, and human effort are brought together to produce goods or services in order to earn profits. The primary objective of a company is to maximize shareholder value by generating profits and providing returns on their investments. As a legal entity, it can enter into contracts, sue, and be sued in its own name.

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Difference between Tort and Criminal Law – 8 Major Differences Explained | Business Law

Differences between Tort Law and Criminal Law

Difference between Tort and Criminal law

➨  A tort case and a criminal case are two distinct branches of law that serve different purposes and address different types of wrongdoings.

➨ While both involve civil wrongs, they differ in terms of the parties involved, the burden of proof, the remedies available, and the overall objectives.

Throughout this explanation, we will discuss the differences between tort law and criminal law in detail.

Tort Law:

➨ A tort is defined as a civil wrong committed by a person or organization to harm or injure another person or their property. Some of its characteristics are as follows:

Tort Law

Parties Involved:

➦ In tort law, private parties, such as individuals, corporations, and organizations, are usually the involved parties.

➦ The injured party, called the plaintiff, seeks compensation from the defendant, who is accused of wrongdoing.

Burden of Proof:

➦ Plaintiff must prove that the defendant’s actions or omissions were negligent or intentional and that these actions directly caused harm or injury in order to be able to prove their claim.

➦ As a rule of thumb, in tort law, the plaintiff must prove his claim by a “preponderance of the evidence,” which means the evidence presented must be more likely than not to support his claims.

Types of Wrong:

➦ There are many different types of torts included in tort law, such as negligence, intentional torts, strict liability, defamation, trespass, product liability, and nuisances. Each must be proven by the plaintiff.

Remedies:

➦ Tort law is primarily a law that compensates the injured party for the harm or injury they suffered. The most common form of tort compensation is money compensation, known as damages.

➦ Various types of damages can be awarded, including medical expenses, pain and suffering, income loss, property damage, and emotional distress.

➦ It is possible to seek non-monetary remedies in some cases, such as injunctions or specific performance.

Role of State:

➦ States play a crucial role in tort law by providing a legal framework and judicial machinery to resolve disputes between parties.

➦ They do not prosecute wrongdoers but rather facilitate the civil litigation process between parties.

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Theft vs Fraud – 6 Major Differences Explained | Business Law

Theft

Theft vs Fraud

A theft or a fraud is a wrongful appropriation or acquisition of property or resources. While both offenses involve dishonesty and illegal actions, they differ in several crucial ways.

As part of this explanation, we will examine the definitions, elements, legal implications, and differences of theft and fraud.

The theft offense consists of the unlawful taking or appropriation of another’s property without their consent. It typically involves physical or tangible property theft.

An intentional act of theft is when someone else’s property is taken with the intention of permanently denying them access to it and its benefits, which is what theft is all about.

The act of theft can involve physically removing or controlling the property without the owner’s consent.

The term fraud, by contrast, is defined as the deliberate deception or misrepresentation of facts intended to gain unfair advantage or harm another individual or organization.

Fraud usually involves acts of deception rather than physical theft.

As a result of fraud, false statements are made, relevant information is concealed, or deceptive conduct is engaged in order to deceive and gain an unfair advantage.

Fraud consists of misrepresentations, deception, reliance on false information, and resulting harm.

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Difference between Bylaws and Constitution – 5 Major Differences | Business Law

Differences between Bylaws and Constitution

Difference between bylaws and constitution

Organizations’ operations and decision-making processes are governed by bylaws and constitutions. The two are similar in terms of establishing rules and guidelines, but they differ in several distinct ways. Let’s explore each in greater detail.

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Difference between Fundamental Rights and Human Rights – 4 Major Areas of Differences | Business Law

Differences between fundamental rights and human rights

Difference between fundamental rights and human rights

The concept of fundamental rights is closely related to the concept of human rights and covers the basic rights and protections accorded to individuals. Although both concepts share common principles, there are significant differences between them.

Fundamental Rights:

Fundamental Rights refers to the rights recognized and protected by the constitution or legal framework of a country. These rights may also be referred to as constitutional rights or citizens’ rights.

A particular jurisdiction’s fundamental rights are generally enforceable within the jurisdiction’s borders. Fundamental rights provide individuals with certain essential liberties and protections that the state must respect and protect.

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Difference between Law and Act – 5 Major Differences | Business Law

Difference between Law and Act

Law and act are legal terms that are often used interchangeably, but they have distinct meanings and implications within the field of legislation. The scope, formation, and application of law and act differ, even though they both represent legal rules or regulations.

Law:

A law is a set of rules and principles established by the governing authority of a country, for example, its constitution, its legislative bodies, or its judicial system.

A law regulates human behavior, maintains order, protects rights, and provides a framework for social interaction within a society. The types of laws vary greatly. Some include constitutional law, criminal law, civil law, administrative law, and so on.

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Arbitration – Concept, Features, Importance, Appointment, Power, Disputes & Major Provisions | Business Law

Arbitration

Meaning of Arbitration

As a form of alternative dispute resolution (ADR), arbitration allows parties to resolve their disputes in a private and legally binding manner outside of traditional court systems. An arbitral award is a binding decision made by a neutral third party, known as an arbitrator after the parties submit their dispute to them.

The purpose of arbitration is to resolve disputes in a less formal and more flexible manner than litigation. Parties can determine their own decision-maker, the procedural rules, and the governing law. Arbitration is suitable for a wide variety of disputes, including international, contractual, employment, and construction disputes.

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General Principles of Civil Procedural Law in Nepal – 11 Principles of Civil Procedural Law | Business Law

General Principles of Civil Procedural Law in Nepal

General Principles of Civil Procedural Law in Nepal 

As per Chapter 2 of the national civil procedural law code 2074, a court must follow the following general principles when hearing and adjudicating civil cases.

  • 1. Hearing to be held on an open bench:

It means that the court proceedings should be held on an open bench where the public, including the media, is able to observe them. The purpose of an open bench hearing is to ensure transparency in the judicial process and uphold the principle of justice and fairness.

In addition to ensuring that the proceedings are conducted fairly and impartially, it gives the public confidence in the legal system.

  • 2. Hearing to be made by a competent court:

This means a court that has jurisdiction and authority to hear and decide the case. Courts that are competent refer to those that have the legal authority to handle a particular case based on a number of factors, including the subject matter, jurisdiction, and other relevant factors. An enforceable and legally valid decision is ensured by the competence of the court.

  • 3. Question of entitlement or disentitlement to be settled by a court only:

Disputes involving entitlement or disentitlement must be handled by a court of law only.This principle emphasizes that disputes regarding entitlement or disentitlement, such as rights, privileges, or claims, should be resolved by a court. As a result, individuals cannot decide unilaterally which rights they are entitled to or which they are not entitled to. They must seek a legal remedy from the courts.

  • 4. Dispute relating to legal status to be settled by a regular court only:

This principle states that disputes involving legal status, such as rights, obligations, or duties, should be handled in a regular court, rather than by an alternative method. In order to ensure appropriate interpretation and application of the law, legal status issues require a formal judicial process.

It is the responsibility of regular courts to handle such disputes and provide appropriate legal remedies.

  • 5. Equal treatment of parties involved:

As a result of the principle of equal treatment, all parties in a legal proceeding are treated equally and impartially. It implies that each party should have the same opportunity to present their case, provide evidence, and challenge the arguments and evidence presented by the opposing party.

In order to prevent bias and discrimination in the legal process, equal treatment seeks to uphold fundamental principles of justice.

  • 6. One to have locus standi to make a plaint:

Locus standi refers to the legal standing or the right of an individual or entity to bring a claim or initiate legal proceedings in court. Those with a direct interest in a dispute or who are directly affected by it are entitled to bring a lawsuit or make a complaint. By doing so, it prevents frivolous or baseless lawsuits and ensures that the parties initiating legal action have a legitimate stake in the matter.

  • 7. Jurisdiction not to be in a vacuum:

As a result of this principle, a court’s exercise of jurisdiction should be based on well-defined legal principles, rather than arbitrary or vague considerations. A court’s jurisdiction refers to its authority to hear and decide a case.

This principle requires that the court’s jurisdiction should be established by clear laws, rules, or legal precedents, ensuring that the court’s powers are exercised within the limits of the legal framework.

  • 8. Not to be allowed to avoid making decisions:

This principle states that courts cannot avoid making decisions on matters that fall within their jurisdiction by evading or avoiding making decisions. Disputes must be resolved by courts based on the applicable laws and the evidence presented.

By adhering to this principle, the court avoids shirking its responsibilities and ensures that all parties in a legal proceeding receive a decision.

  • 9. Opportunity to be given for compromise or mediation:

It promotes the use of alternative dispute resolution methods, such as mediation, negotiation, and compromise, to resolve legal disputes. It encourages the court to provide an opportunity for the parties involved to explore settlement options and reach a mutually agreeable solution.

Dispute resolution methods that use alternative methods are often less time-consuming, less costly, and more conducive to maintaining relationships.

  • 10. Principle of res judicata to be followed:

Once a final judgment has been reached, the principle of res judicata prevents the same matter from being re-litigated between the same parties. The purpose of this principle is to protect the finality of court decisions and to improve judicial efficiency.

The parties cannot bring back the same issue in subsequent proceedings once the court has made a final decision on a matter.

  • 11. Right of appeal:

It is the right of a party to challenge a lower court’s decision in a higher court if they believe that an error or injustice has occurred. An aggrieved party may request a review of a lower court’s decision if they believe there has been an error or injustice.

In order to uphold the principles of justice and fairness, lower court decisions must be subject to scrutiny and correction if necessary, which is why appeals are essential.

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The Civil Procedure in Nepal – 7 Major Aspects of Civil Procedure in Nepal | Business Law

The Civil Procedure in Nepal

The Civil Procedure in Nepal

In Nepal, civil procedure refers to a set of rules and regulations that govern the process of resolving civil disputes. All parties involved in civil cases are protected by these procedures, which are designed to ensure a fair and efficient resolution of civil cases.

Currently, Nepal’s civil procedure is governed by the Civil Procedure Code (CPC) of 2074 (2017). In addition to rules regarding jurisdiction, filing lawsuits, evidence, hearings, and judgments, the CPC also provides a comprehensive framework for civil cases.

In addition to disputes related to contracts, property, family matters, and torts, it covers all civil matters.
Nepal’s civil procedure consists of the following key aspects:

  • 1. Jurisdiction:

Courts in Nepal have three levels of jurisdiction: district courts, appellate courts, and the Supreme Court. Several factors determine a court’s jurisdiction, including the nature and value of the dispute, the location of the parties, and the subject matter of the case.

  • 2. Filing of Lawsuits:

The filing of a lawsuit is the first step in a civil lawsuit in Nepal. A written complaint containing details of the dispute and the relief sought must be submitted by the plaintiff to the appropriate court. After the court has issued a summons to the defendant, it informs them of the lawsuit.

  • 3. Pleadings:

The defendant has a specified period in which they can file a written response to the summons. The written statement allows the defendant to present their side of the case, raise defenses, and counter any claims made by the plaintiff. If necessary, the plaintiff may reply to the written statement.

  • 4. Evidence:

To support their claims or defenses, parties must submit documents, witness statements, expert opinions, and other forms of evidence. Evidence plays a crucial role in civil proceedings. Upon receiving the evidence, the court determines whether it is admissible and relevant to the case.

  • 5. Hearings and Arguments:

Upon completion of pleadings and submission of evidence, the court schedules hearings during which the parties present their arguments and clarify their positions. In addition to asking questions, examining witnesses, and seeking additional information during hearings, the parties may also present oral arguments in support of their arguments.

  • 6. Appeals and Judgments:

After hearing all arguments and evidence, the court renders a judgment based on the facts of the case. The judgment outlines the court’s findings and determines the parties’ rights and liabilities. Dissatisfied parties have a right to appeal the decision within a specified timeframe to a higher court.

Several additional rules and regulations may be issued by the Supreme Court or other judicial bodies that provide additional guidance on specific procedural matters.

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The Court System – Supreme Court, High Court, District Court, Specialized Courts | Business Law

The Court System

The Court System

The court system is an essential component of the dispute settlement system in many countries. It provides a structured and formalized mechanism for resolving disputes and interpreting the law. In addition to administering justice, courts ensure the rule of law and protect individual rights. Courts also called court law include individuals or bodies with judicial authority to resolve civil, criminal, ecclesiastical, or military disputes.

Nepal’s court system is primarily based on a hierarchical system with multiple levels. The judiciary in Nepal is independent of the government’s executive and legislative branches. It is the courts that interpret and apply laws in the country, resolve disputes, and ensure justice.

There are three tiers of courts in Nepal, according to Article 127(1) of the constitution of Nepal

1. Supreme Court
2. High Court
3. District Court

As well as the hierarchical structure, there are also specialized courts that handle specific types of cases, such as; special court, Labour courts, Administrative courts, and Military courts.

1) Supreme Court

Nepal’s Supreme Court is the highest court in the country and serves as a final appeals court for civil, criminal, and constitutional cases. The Supreme Court is an important part of ensuring the rule of law in Nepal by interpreting the constitution. Here are some key points about it:

The President appoints a Chief Justice based on the recommendation of the Constitutional Council, and other justices are appointed by the President based on the recommendation of the Judicial Council. Supreme Court justices serve until the age of 65.

The Supreme Court has both original and appellate jurisdiction. Under its original jurisdiction, the Supreme Court can hear cases involving constitutional interpretation or public interest. Appellate courts review appeals from lower courts, such as district courts and appellate courts.

An important role of the Supreme Court is to interpret the Constitution. It has judicial review authority, so it is able to review the constitutionality of laws, government actions, and decisions. In addition to having a substantial impact on the legal framework of the country, the Supreme Court’s interpretations are binding.

Writ Jurisdiction: The Supreme Court can issue a wide range of writs, including habeas corpus, mandamus, certiorari, prohibition, and quo warranto.

There is a Constitutional Bench consisting of five or more justices, which hears only cases related to constitutional interpretation and matters of significance to the people.

2) High Court

Nepal’s High Court, also known as the Appellate Court, is a judicial body between the District Courts and the Supreme Court. A high court shall exist in each province, according to Article 139 (1) of the Nepalese Constitution

In addition to its appellate jurisdiction, the High Court also has original jurisdiction in certain matters. Cases involving constitutional issues within its region can be heard by the High Court if they are of significant public importance or if they involve constitutional issues. When the case has not been initially filed in the District Court, the High Court may exercise its original jurisdiction.

The High Court supervises the District Courts within its jurisdiction. Assuring that the lower courts are functioning properly and following legal procedures, it oversees the administration of justice in the District Courts. To improve the efficiency and quality of work of the District Courts, the High Court can issue directives or guidelines.

3) District Court

A District Judge is the chief judge of each district in Nepal, and the District Court is the primary trial court. It is their responsibility to resolve disputes related to property, contracts, family matters, and criminal offenses within their districts. For cases originating within the district, district courts serve as the first level of appeal.

District Courts are also responsible for executing their judgments as well as conducting criminal trials, imposing sentences, and handling civil cases like divorce, child custody, and inheritance. For cases within their jurisdiction, district courts may issue limited writs. Justice is delivered at the local level by these courts, and legal remedies are accessible.

4) Specialized Courts

According to Article 152 of the constitution of Nepal, there are specialized courts other than the supreme court, high court, and district court. Specialized courts include

1. Special court: A Special Court handles corruption and other related cases under the Prevention of Corruption Act and other relevant laws.
2. Labour court: In the Labour Court, disputes related to employment, labor rights, and industrial relations are resolved.
3. Administrative court: The Administrative Court deals with administrative and public law matters, including disputes arising from administrative decisions.
4. Military court: Cases involving military personnel and offenses related to the military are handled by the Military Court.

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Contract of Bailment and Pledge – Concept, Rights and Duties | Business Law

Contract of Bailment and Pledge

Contract of Bailment and Pledge

Bailment is the legal relationship that occurs between two parties, referred to as the bailor and the bailee when the bailor temporarily transfers the bailor’s possession of the personal property to the bailee. Property is held by the bailee on behalf of the bailor and the bailee is responsible for returning it or disposing of it accordingly.

The Civil Code 2074, section, 575(1) states:

”A contract relating to bailment shall be deemed to have been concluded in case a person delivers any property to another person to be returned to him or for handing it over to any other person or selling it as ordered by him.”

The bailor retains ownership of the property in a bailment, but the bailee has temporary control and possession of it. The bailee is responsible for taking reasonable care of the property while it is in their possession and returning it in the same condition as when the bailment began, or as otherwise agreed upon.

Various situations can result in bailments, such as leaving your car with a valet parking service, storing your belongings in a storage facility, or lending a valuable item. The bailor retains ownership, while the bailee has a duty to safeguard the property and use it only as authorized by the bailor.

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