何家弘法律英語第一課

1、LEGAL SYSTEM IN THE UNITED STATESOne day in Contract Law class, the professor asked one of his better students, Now if you were to give someone an orange, how would you go about it?The student replied, Heres an orange.The professor was livid. No! No! Think like a lawyer!The student then recited, Oka

2、y, Id tell him, I hereby give and convey to you all and singular, my estate and interests, rights, claim, title, claim and advantages of and in, said orange, together with all its rind, juice, pulp, and seeds, and all rights and advantages with full power to bite, cut, freeze and otherwise eat, the

3、same, or give the same away with and without the pulp, juice, rind and seeds, anything herein before or hereinafter or in any deed, or deeds, instruments of whatever nature or kind whatsoever to the contrary in anywise notwithstanding. Part One Features and Characteristics Part Two Common Law and Eq

4、uity Law Every law has no atom of strength, as far as no public opinion supports it.Wendell Phillips, American leader against slavery 若是沒有公眾輿論的支持，法律是絲毫沒有力量的。美國廢奴運(yùn)動(dòng)領(lǐng)袖 菲力普斯 Two periods of legal history:1.On May 14, 1607, the Virginia Company explorers landed on Jamestown Island to establish the Virgin

5、ia English colonyThe Period of the English ColoniesThe Revolutionary War in America (1775-1783)2.The Period of the United States Common law legal system（普通法系）1.Decentralization2.Case law3.Stare decisis The United States is at once la very new nationla very old nation Compared with many other countri

6、es it is constantly being renewed by the addition of new elements of population and of new States It is the oldest of the new nations lthe first one to be made out of an Old World colony.lthe oldest written constitutionthe oldest continuous federal system the oldest practice of self-governmentThe wh

7、ole of its history belongs in the period since the invention of the printing press. for events such as those that are lost in the legendary past of Italy or France or England are part of the printed record of the United States And the American recordlComprehensivelImmense Record of the colonial era

8、Record of the Nation since 1776 Record of the present fifty States The intricate network of relationships between States and Nation The reports of the United States Supreme Court fill 350 volumes The reports of some States are almost equally voluminous The reader who wants to trace the history of la

9、w in America is confronted with over 5,000 stout volumes of legal cases. No one document, no handful of documents, can properly be said to reveal the character of a people or of their government. When hundreds and thousands of documents strike a consistent note，over more than a hundred years, we hav

10、e a right to say that is the keynote. The American legal system, like the English, is methodologically mainly a case law system. Case law 形成于英國，包括加拿大，澳大利亞，新西蘭，愛爾蘭，印度、巴基斯坦，馬來西亞和新加坡，香港Common law legal system Statutory law 法國和德國為代表，還有瑞士、意大利、奧地利、比利時(shí)、盧森堡、荷蘭、西班牙、葡萄牙、日本等Civil law legal system Most fields o

11、f private law still consist primarily of case law and the extensive and steadily growing statutory continues to be subject to binding interpretation through case law. Knowledge & Techniquecentral importancefor an understanding of American law and legal methodology The common law is historically

12、the common general law with supremacy over local law which was decreed by the itinerant judges of the English royal court. enforcement 強(qiáng)制執(zhí)行； claim 請(qǐng)求； action 訴訟行為； writ 法院令狀； classical Roman law 古羅馬法 The enforcement of a claim presupposed the existence of a special form of action, a writ, with the r

13、esult that the original common law represented a system of action similar to that of classical Roman law. If a writ existed (in 1227) a claim could be enforced; there was no recourse for a claim without a writ, the claim did not exist. This system became inflexible when the Provisions of Oxford (125

14、8) prohibited the creation of new writs, except for the flexibility which the writ upon the case allowed and which later led to the development of contract and tort law. The narrow limits of the forms of action and the limited recourse they provided led to the development of equity law and equity ca

15、se law. 由英國衡平法法院的大法官在處理專門的申訴案件時(shí)，為避免過分重視令狀和程序方面的技術(shù)性問題，而集中考慮案情的理據(jù)得失，最終發(fā)展出有別于普通法的法律規(guī)范，就是衡平法。 “Equity”doing equity deciding ex aequo et bono was first granted by the King, and laterby his Chancellor as keeper of the Kings conscience, to afford relief in hardship cases. In the fifteenth century, however,

16、 equity law and equity case law developed into an independent legal system and judiciary (Court of chancery)which competed with the ordinary common law courts. 普通法專指英國在11世紀(jì)后由法官通過判決形式逐漸形成的適用于全英格蘭的一種判例法普通法 衡平法是指英國在14世紀(jì)后對(duì)普通法的修正和補(bǔ)充而出現(xiàn)的一種判例法衡平法 Its rules and maxims became fixed and, to a degree, inflexib

17、le as in any legal system. relief in the form of specific performance the injunction 禁令（臨時(shí)或最終的采取或不采取某種行為的命令） the development of so called maxims of equity law 形成所謂的衡平法座右銘 However, equitable relief regularly will lie only when the common law relief is inadequate. For instance, specific performance fo

18、r the purchase of real property will be grantedbecause common law damages are deemed to be inadequate since they cannot compensate the buyer in view of the uniqueness attributed to real property. As the common law, equity law became part of American law either through judicial acceptance 司法接受 or thr

19、ough express statutory provision 明確的成文法條款 Today, both legal systems have been merged in many American jurisdictions there is only one form of civil suit in these jurisdictions as well as in federal practice. 美國紐約州立法機(jī)構(gòu)于1848年通過了由戴維菲爾德起草的菲爾德民事程序法典，稍后更成立了一個(gè)“法典化委員會(huì)”來“將紐約州的全部法律簡(jiǎn)化為成文的、系統(tǒng)化的法典”。 Only few States continue to maintain a separate chancery court. 獨(dú)立大法官法庭It explains the origin and significance of many contemporary legal conceptsthe division of title in the law