代写英国作业允执两端，求中致和：英国法律文化的二元平衡精神
【摘要】大凡历史悠久的文明古国，都有自己别具特色的法律文化。英国法律文化的鲜明特色是允执两端、求中致和的二元平衡精神。它体现在英国的法律结构、法律渊源、审判模式、审判主体以及法官和律师队伍的构成、警察制度建设等各个层面上。二元平衡精神符合客观事物发展规律和自然辩证法，值得认真研究和借鉴。
【关键词】法律文化；平衡精神；中庸之道
Allow ends with, let the and of: British legal culture of binary balance spirit
【 abstract 】 a civilized history, has its own distinctive legal culture. British legal culture is acceptable ends with distinctive characteristics, for the binary and in balance spirit. It manifests in the British legal structure, legal origin, mode of judgment, trial judges and lawyers main body, and the composition of the team, the police the system construction and so on each level. 2 yuan balance spirit accord with the objective law of development and natural dialectics things, deserves serious research and using for reference.
【 key words 】 legal culture; Balance spirit; The doctrine of the
A civilized history, has its own distinctive legal culture. Look around the world, legal culture is the most distinctive national individual character characteristic when the British belong. Because of this, the British legal cultural characteristics of the problem has always been at home and abroad are especially comparative jurist legal scholar close attention, and is in many respects a basic consensus, such as justice center socialist, program priority, case law tradition, the laws of the common law + equity classification structure, binary system, the system of lawyers to induction legal ideas, give priority to pay attention to practical work ability cultivation of legal education system, it is recognized as one of the British legal culture characteristics. But, review of the existing research results, it can be found that the scholars mostly choose one or several more intuitive side, the isolation, the dispersed of research methods, this method in Britain unique. The attention to detail and characterization of research model, although in the early stage study is necessary, even is the inevitable choice, but it after all cannot provide to the reader a full and profound concept, hard to avoid give a person a kind of fragmented, lost superficial feeling. So, with certain academic accumulation, it will need further to further, from the philosophy of culture level of analysis and generalization. The author thinks that, the home of the British legal culture research process is in such a 2, youbiaojili period of change, and objective conditions mature. It is with this understanding, this paper attempts to make a discusses tentatively, i.e. from surface features analysis to dig deep meaning. We wish to promote British legal culture in the further development in a view to play a valuable role.
Combined with personal learning English law of the history of the comments, will the results of other researchers to the comprehensive investigation found that, in Britain's legal tradition, contain a profound philosophical culture connotation, that is acceptable to both ends, for holding in the binary and balance spirit. I think, this balance spirit is the essence of the British legal culture and the soul, it throughout the history of the English law and the law has developed the many aspects of life, presents the ubiquity of widely permeability and influence. The following slightly raises main to be explained.
First, in the form of legal structure, English law is not like the civil law as clear area divided into public and private law, civil law and criminal law, but is divided into two most common law and equity, this unique classification approach embodies the law and the morals of the binary balance. As is known to all, law and morality are so far human creation come out to the standard social behavior of the two sets of the most basic rule system, both has contact, and difference, already cross each other, and their independence. For the complicated relationship between the two, the legal circles seem to have no objection (say this is the most scholars character, in history, the scholars have different opinions, such as natural law school puts emphasis on the two are inseparable, that the only item of the moral law to reflect truly have the legal quality; analysis of the difference between the school emphasizes, stood for "real natural law" and the "granted method" strictly distinguish), but in practice it is a hard to grasp and properly handle the complex question. Some countries (such as the ancient Chinese) too advocating morality, derogatory law, the legal system development long-term walking difficult; Some countries (such as fascist period of Germany) the standard disdainful of legal effectiveness, disregard for the law of moral justice, the result is "a bad law of governance". English law of the common law + equitable binary structure form, ably resolved the law and the morals of the inherent contradiction, contributed to the benign interaction between them. Common law with its sanctions function represent and http://www.szdhsjt.com/ygkczy/2012/0406/19398.html safeguard the legal authority and effectiveness, equity is by giving some ethics (namely the obligation of ethics) to the legal effect of the way that the moral legalization form, make English law in the moral field constantly from draw nutrition, enrich their own content, promote ethical standards. So, "on the one hand, legal procedures and the legal sanction to strengthen the good and evil is standard; on the other hand, legal standards are endowed with a few before they can expectant divine nature." [1] legal and moral infiltration into each other, bring out the best in each other, and with common prosperity-with, ensure the English law for the healthy and orderly development.
Second, the origin of law in form, English law as the main source for case law, at the same time, assisted by enacted law as a necessary supplement, this and continental law always give priority to enacted law are completely different. At the beginning of the common law produce, case was the only creation origin and existing form, but, since the late s after 13, enacted law in the development of the method of British play the more and more major role, that when king Edward I hosted a lot written by formulated laws and regulations and won the "British Justinian" title (1). Since then, the number of enacted law and potency unabated, especially in the seventeenth century "parliamentary sovereignty" after the establishment principle, enacted law increasingly wide range of adjustment. However, the basic position of case law to keep has not changed, in a western scholars as saying: "case law is the first, enacted law second." [2] this dual compound method source mechanism can prompt adjustment law stability and flexibility of the inherent contradiction between, endowed with English law with a unique self coordination development mechanism: on one hand, case law principle of follow precedent, which meet the legal certainty and predictability requirements; On the other hand, for the case of inevitable legal gap, this is through the judge's judicial interpretation to close at any time, but for the legal case can't cover blank field, it can establish method to be filled, so that the law of flexibility and adaptability to social security, which decides the British law is a balanced development of the potential has ego "open system" [3]. One thousand years, English law are able to like a sleepy backwater river, always continue and the progressive ahead, even in the middle ages to the modem history big reform period also can realize smooth transition, and the dual compound the legal source of the form is inseparable.
Third, in the mode of judgment, and the functions and powers of the rectification of socialist--ask different continental law, English law USES is the socialist--against system, it through the plaintiff and defendant equality between the main body of the lawsuit against that is between two yuan balance, in order to achieve judicial justice value goal. We know, judicial process, is the judge, according to established rules of law, for the benefits of conflict in the judgement, based on the fact that the laws of the applicable and, for the best balance of conflict, so that the pattern of interests to restore balance equilibrium state. To achieve this aim of both parties of the litigation equal status and strictly abide by the judge's neutral is essential to the two premise, and confrontation system is able to maximize the security litigation both balance of power. In view of the criminal litigation central witnesses on their starting point will have a better (the offensive attack in strong position, distinguishes party in a passive defense vulnerable position), British took various "or help strong weak" procedural law measures to safeguard of two sides are the necessary "reciprocal armed" and the status in balance. For example, in the lawsuit before police interrogation stage, the criminal suspect shall have the right to remain silent, shall have the right to require the lawyer present, and the police have the obligation will these interrogation in advance to being questioned right (that is, the Miranda rule). In the trial stage, a proof responsibility principle the prosecution evidence that tilt duty principle, it requires the accusers must provide sufficient proof did happen, and it is a crime for the defendant of evidence, and the defendant is not liable for proof of his innocence, obligation, more is not forced to self charges, to incriminate himself; Also the "beyond reasonable doubt" principle and the principle of presumption, that is to say, the prosecution for evidence that force should be enough to get rid of all the reasonable doubt degree of certainty, to order the defendant guilty, otherwise, even if it is in fact the guilty must also be think in law is innocent. Evidence in the strict, optimal relevance lattice and eliminating illegal evidence principle, it requires, the evidence must be submitted to the court with the case facts card has some contact between substantial, the main body of evidence, form and collect evidence procedure and method, etc must be compliance with the law, do not meet these requirements of the evidence, the court shall not be adopted. For example, involving the defendant conduct characteristics, the character of the evidence, the evidence that hearsay, belong to the list of automatic rule out; For the defendant in a statement of the guilty before the court trial, the court shall not be adopted, unless the prosecution can prove that the statement is the defendant real made voluntarily, and standards of proof must meet rejection of all reasonable doubt degree. For the evidence of an indecent, or only a witness especially minor witness testimony provided evidence, there must be other evidence to fill strong, or can not determine that the defendant guilty [4]. The value of the evidence rules is that the increased demand the plaintiff proof responsibility, strengthen the defendant rights protection, "loss to fill up more insufficient, adjusting to control the defended a contrast of relationship, to realize the balance of the litigation rights.
|
