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英国法学专业课程论文代写-英国法律学问的二元平衡精神 British legal culture of binary b(2)

时间:2012-04-06 10:59来源:英国作业网 编辑:英国法学专业课程 点击:
Fourth, in the judgment of the main body of the form on, the judge and jury WenAn alternative embodies the elite and the public participation, leading professional and civilian, legal theory and reaso


Fourth, in the judgment of the main body of the form on, the judge and jury WenAn alternative embodies the elite and the public participation, leading professional and civilian, legal theory and reasonable, form justice and substantial justice, the binary balance between. The system will be divided into law applicable jurisdiction right and the fact that two parts that right, respectively, by different judicial subject to exercise. It asked a judge to focus on what you're good at law disputes, in order to avoid getting entangled in the complexity of the facts arguing the professional knowledge of the waste valuable resources. The fact that it question to the jury, this is the jury can do it and can be a good thing. This kind of decentralization mechanism to help overcome the judge identified the potential danger of arbitrary, because the judge as part of the national power system, it is very easy to subject to vested interest difficult to resist the influence of power factor. And this is different, the people who are in power system jurors outside, detach, sometimes even for power behavior have a instinctive resistance and resist psychology. Therefore, the jury system can contain the judge's favoritism and arbitrary, ensure the judicial justice. In addition, jury system provides a experts and the people communicate cooperation channels, and embodies the judicial elite and civilian organically, this helps to overcome the judge professional thinking of the inherent disadvantages, achieve legal reason, and form justice and substantial justice harmony. Historical experience prove that legal elite law rules themselves to the attention of the rule of law is often exceeds the consequences, that is, for the method and process are usually better than the purpose and the result is more value. And ordinary people because of legal learn fewer and known as worldly wisdom, in what is justice and judgment is not reasonable, often more focus on social thought in terms of the requirements of conscience, "if applicable law caused by the results, not in strict justice, and they will blame any legal" [5], brave to say "no", and don't need to explain the reason. This "unreasonable judgment" right is that one of the jurors proprietary privilege, called it "the jury's no abstained" [6]. Take this privilege, the jury can public values, justice and judgment into judicial process, to make up for the professional judge the intolerance of mechanical law enforcement, and received a law of flexible and rigid right of the overall consideration effect, make the applicable law closer to real life more directly, responses to the people's needs, judicial power to prevent "pure specialization", "pure nationalization" and "pure bureaucratic" the wrong way. To this, the evidence's Moore's law scholar wrote: "law and justice inevitable in the conflict of regular located in. We yearn for justice, and we think that justice is done by law, shall be. But if we passed a law can't achieve justice, we condemn. This is now a jury of the role the occasion. After the state of the confidential fail in the jury will adjust the general rules of law, in order to realize the specific case of individual justice. Like this, the laws of the notorious strict rules are avoided, and to the satisfaction of the law of the people's mind. The jury to do safe is this. It provides us the flexibility of the law, and is in the realization of justice and get the support of the people is the most important. Guidelines, and the kind of flexibility is legal trial judge can never given. The judge must write his decision, announced that the law, and the reason for that fact. For these requirements, he shall not be in the public record. The jury and a little from the jury room, the secret of the evaluation of the people of a justice is an indispensable part of." [7]


Fifth, the structure of the team in the judge formally, the vocational judges and non-league magistrate judge system composed of two embodies judicial professional and the professionalism of the balance between two yuan. The judge professionalization and specialization is the inherent requirement of the civilization of legal system and the inevitable trend. Britain is the first step on the road to professionalization and specialization of countries, but never completely dominating the professional judge British legal stage, and by the professional amateur judge judicial power of the traditional always maintain share has not changed. 13 century professional judge of produce, grass-roots society happened the lawsuit especially mild cases, by the public court all still "litigant person" trial. From 14 centuries later, over such cases the nature of the magistrate amateur through the court season, only more complex case to submit the three big central helps them solve serious common law court or the professional circuit court judge trial, so the number of British vocational the judge has been negligible. In the middle ages, normal on-the-job the judge 1200 only, and the magistrate is up to thousands of people. Today, the English professional judge scale also however 1200-1500, in which is the backbone of the 150 worked in the upper house, the appeal court and of the high court senior judges, 550 circuit judges and 355 district judge. This means that most of the UK (mainly small mild cases) judicial work by about 30000 non-professional part-time sex magistrate finish. Today, by contrast, France had about 60000 professional judge, Germany about 20000 professional judges. A first open the judge of the first national professional, has always maintained such a huge non-league team the judge, this is without a doubt a deserves serious thinking phenomenon. In the judge calls from throughout the professional of contemporary China, this phenomenon worth our attention and especially thoughtful.


Sixth, in the lawyer's structure form, British lawyer trial lawyers and lawyers are divided into two parts, the first with litigation business is given priority to, the latter to non-litigation primarily, two independent, each other is not Chinese, more shall not interfere, the binary system of lawyers to satisfy two kind of different legal services to the needs of society. Of course, two yuan lawyer system also has certain limitation, therefore, in recent decades, the British government introduced several reform measures to allow the two kind of lawyer conditional between flow, but, binary system did not cancelled. Investigate its reason, a division of labor of specialization and promote because is to improve the quality of work and the only way of efficiency, especially in today's a pluralistic society, legal content and legal service market becoming more diverse, complex, the law of technical and professional more and more high, no lawyer can't master all laws, therefore, choose their own expertise as a leading business areas than ever more urgent. In fact, in any legal system developed countries, lawyers have some degree of internal division of labor, and the more perfect legal system, division of labor is, the more indispensable. For example, in a system of the United States attorney yuan, most large firms are divided into the internal functions of different lawyer some group, respectively, took over the business or non-litigation litigation, criminal cases or civil cases. In France, have not only acting lawyer and defense lawyer of the actual distinguish, but also an independent notary public in the class. Visible, the division of labor sense, Britain's two yuan lawyer system originally has certain rationality. It is the irrationality of from the objective laws of natural division, people will be immobilized division, through all sorts of written and unwritten rules that make artificial barriers ", make two lawyers their closed, isolated from each other, and against the modern society in open and liquidity requirements. So, the ultimate goal of the reform is not cancel the division of labor division should not also-is thoroughly cannot cancel the merger, but tear down "artificial barriers", introducing market mechanism, and allow the two kind of lawyer mutual flow, free competition, let every lawyer can no limit to find his best position, maximize their interests and expertise. For this, the British lawyer system the aim of reform seems to have reached. Another more profound reason is, two yuan lawyer system as English law of the spirit of the inner balance product, is in the judicial practice of spontaneously formed, with deep history of the foundation, and Britain is a special respect traditional conservative type countries, completely abandoned the old system, and adopt a new system, this and British cultural tradition is not that agrees. Therefore, in the author opinion, complete with two types of lawyers, realize the integration is extremely unlikely. In other words, binary system as a British lawyer system legal culture spirit one form of externalization of balance, estimates that in the near future will not have a fundamental change, although local reform and adjustment of could still happen.


Seventh, in the establishment of the system of the police, the British in the police, the allocation of power and regulation, follow the "free all and" principle, embodies the "can do" and "limited" balance. The police is adapt to the modern industrial society to the security and of generation, is the function of the violence has crackdown state organs, its main functions are cracking down on crimes and maintaining public security and civil liberties. For this, police have been given the right to detain right, including search, arrest, the right, the right of interrogation custody right and a series of mandatory power. The power of the mandatory consonant with the police and may have advantage of their lawful individual rights infringement, and alienation oppressive tools for the government of the danger. Therefore, how to properly with and regulation police power, both must ensure that the police have a job right, positive "can do", ensure the security interests of the state and society, and to make the police power "limited" to prevent abuse, to ensure the legal rights of the individual against infringement, became the police system construction in a most complex important legal practices. The ideal solution nature is both, from which the word, as the British police, "the author of Scott said:" police power too powerful, but bad is the power of the police not strong enough is also dangerous. The two extreme will damage the national freedom." [8] overall, British police power in balance "can do" and "limited" relationship is more successful, however, is a dynamic process. In 1829, at the beginning of the police to create, known as the freedom of the traditional British people to the new things most something to fear, or even suspect that the police is a government spy, curse them is "blue devil", "GaLuJi", "life lobster". To eliminate as soon as possible public fear psychology, fight for social support, "the police" father of a peer to determined the "with type" police style and "due process" the basic policy detection model (2). He made the police instructions "explicitly asked police must abide by the following principles: politically neutral, shall not participate in any political party campaign. Civilization law enforcement, and will not allow to the crowds rude. At least the use of force, the police on duty is allowed only daily a long piece about a foot wooden batons, and it will be kept in a special police in the recession, but in some cases only as a last resort to use, JingDu above can be equipped with handguns, but at ordinary times going to keep in the police station, only the special task you can only ChuJing with a gun. Exercise of power according to law, no matter what the situation, the police to any behavior must be "have enough support the legitimacy of the" [9], especially in the exercise is investigated the option, the police must be strictly follow the "due process" act. His police force to British police to the policy of the good common image (called "the uniformed citizens"), created the world in the history of the police "the myth", but also make the police crime control performance by certain negative influence. Of the 20 th century after the late, as the society and the complexity of growth, rising crime rate and public security situation pressure increasing, the weakness increasingly exposed. So, the British government to further the police power especially indictment, authorized the police can not issued by the justices accepting only according to "reasonable doubt" can search, arrest suspects. The police weapons and equipment has been greatly improved, militarized degree and rapid response ability obviously improved. These changes that the British police "crime control" functions strengthened. However, this does not mean that England to give up the "due process" mode, turned to its opposite--" crime control "mode. Because, at the same time, the British government through the legislation, regulation and the indictment of the police also strengthen the monitoring of synchronization. In 1984, British formulated the police and the criminal evidence law ", and a supplement to 5 department the detailed rules for the implementation of the resistance to the police for search, arrest, detention and treatment of property, interrogation and the detailed provisions suspects compulsive power of the rules of procedure. So, the strengthening of the 20 th century change is just the right of the police action fill the disadvantages, and make the right of the police "can do" and "limited" more harmonious, "due process" model is more perfect just, the use QiuEn words, the aim is to "in personal power and the interests of the state, to achieve" moderate balance "[10].



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