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美國司法程序的制衡機制

2013-11-11 14:19  來源:   糾錯

The Adversary System in the American Judicial Process

The law of procedure is the body of rules that governs or provides the frame-work of the judicial process. The judicial process, in turn, guides the operation of courts in the determination of legal controversies,or,as a legal scholar defines it, the judicial process is the decision by the court of controversies between individuals (or between an individual and the State)by rational and not merely personal considerations supposedly based on law and justice.1 These definitions are terribly inadequate, but they may serve our purpose if we understand from them the following points;(1)The judicial process deals not with abstract questions or hypothetical situations but with actual controversies between real parties;(2)These controversies are such that the community will direct its collective force to their resolution;(3)This resolution proceeds not arbitrarily but according to some standards of general application;(4)These standards are applied in a proceeding that follows some fixed lines set out by a system of rules known as procedure.2

The rules of procedure are to the litigating lawyer regulatory and enabling legislation:3 They tell or attempt to tell him what the lawyer may and may not do, and they afford the means by which the lawyer can bring about, or attempt to bring about, the results sought.

A distinctive element of the American procedure far resolving legal contro?versies is the adversary system, which is the characteristic form of trial procedure in common law countries, in civil as well as criminal cases. Its essential feature is that a decision is made by judge, or judge with jury, who finds the facts and ap?plies the law from submissions made by partisan advocates on behalf of the parties.4 In this system of trial procedure, the responsibility for beginning suit, for shaping the issues, and for producing evidence rests almost entirely upon the par?ties. The court takes almost no active part. It does not do its own investigating. It rarely even asks a question. Most often it is only responsible for guiding the proceeding according to certain procedural rules and for making decisions on ques?tions of law that arise. This system is to be contrasted with what is generally called the inquisitorial system, which is used in countries of the civil law tradition such as France and Germany. In the inquisitorial system of trial, the judge ap?plies the law and finds the facts by his own active investigation and inquiries at trial.

Under the adversary system, the scope of the lawyer's power and responsi?bility is wide. It is the lawyer who makes the initial and usually final decisions as to choice of court, size of claim, nature of claim stated, parties, extent and kind of pre-trial investigation, mode of trial (whether jury or non-jury), settlement offers, extent and kind of proofs, style of presentation and argument, and, with?in limits, speed and vigor of presentation. The trials are largely produced and di?rected by the lawyers. They supply the actors and the script, through the wit?nesses called and the testimony elicited by direct and cross examination. Judges are called on to intervene only occasionally and then briefly, to ensure that all the procedural safeguards of due process5 are met and essential fairness is achieved. They rule on the admissibility of evidence, but this is a negative function of keep?ing out unreliable evidence rather than an affirmative one of providing the facts upon which a case is determined.6

The reasons for the prevalence of the adversary system are manifold, but four are certainly among the most important: (1) It is believed that a truer deci?sion will be reached as the result of a contest directed by interested parties.7 An interested party naturally will be most effective in seeking, discovering, and pre?senting the materials which will reveal the strength of his own case and the weak?ness of his adversary's case; (2) The parties, who after all are the persons princi?pally interested in the resolution of the controversy, should bear the major burden of the time, energy and costs required; (3) Although impartial investigation may be better when no final decision need be reached, setting up sides makes easier the type of yes-or-no decision that is thought to be necessary in a lawsuit;8 (4)

Since resort to law has replaced resort to force that characterized primitive ages, the human instinct to do battle is better satisfied by a means of settling disputes that are very much in the hands of the parties.

Contrasted with the methods of scientific or historical research, this system of finding answers to legal controversies seems sometimes unsatisfactory. When one reflects on the fact that under the adversary system victory often turns on fac?tors other than the true merits of the case, there is reason to be skeptical about it.9 Critics of the adversary system point out that it tends to reduce litigation to a costly game, in which the lawyers become the principal players and the outcome will turn on their skills rather than the justice or true merits of the case. In recent times there has been a trend toward increasing the affirmative or active functions of the court that reflects the larger trend away from the “sporting” or “game” theory of litigation. Nonetheless, it cannot be questioned that in the United States the primary responsibility and control over almost all phases of the judicial process continue to reside in the parties. Full understanding of the American legal procedure will require our constant attention to the existence of the adversary sys?tem as well as critical analysis of its shortcomings.

There is but one test of a good system of procedure: Does it tend to the just and efficient determination of legal controversies? In this connection we must un?derstand one thing: Despite the fact that this unit is only an introduction to the American legal system, we are not to assume that our function here is simply to digest uncritically what we learn from this unit. It is a part of our learning pro?cess to examine, “to wash in cynical acid,” each rule, each form, each principle we learn.10 But while doing so; keep in mind that many, diverse, and complex are the aspects of both justice and efficiency.11

Word Study

partisan a. 黨派的,派性的

inquisitorial a. 審訊的,調查的

settlement n .調解

testimony n . 證詞;證據

elicit vt.引出;誘出

examination n.詢問,質證

direct examination 直接質證

cross examination 交叉質證

intervene vi. 干涉

safeguard n.保護措施,保障條款

due process 正當司法程序

admissibility n.可采納;可取

affirmative a.肯定的,積極的

prevalence n.盛行,普通

manifold a . 多方面的,種種的

impartial a. 公正的,不偏不倚的

skeptical a. 懷疑的

nonetheless adv. 然而,不過

reside vi. 居住;存在

cynical a.憤世嫉俗

Phrases & Expressions

on behalf of 代表;為了

be contrasted with 與……對比

turn on 依賴,取決于

reside in 存在

in this/that connection 在這(那)一點上

Notes

1. …the judicial process is the decision by the court of controversies between individuals (or between an individual and the State) by rational and not merely personal considerations supposedly based on law and justice. 司法程序是由法院根據基于法律和正義的理性而不是基于個人的考慮對個人間(或個人和國家問)爭議的裁決。這個句子的結構比較復雜,“supposedly based on law and justice”修飾“considerations”,“by rational and not merely personal considerations…”,“by the court”和“of controversies between individuals”都修飾“derision”。“decision…of controversies”是 表示動賓關系的短語。“by rational and not merely personal considerations”說明“decision”的方式。“the court‘實際上是”decision“這一動作的執行者,由”by“引出。

“by the court”本應放在句子的最后,但因句子太長,放在后面不清楚,故提前。

2.These standards title applied in a proceeding that follows some fixed lines set out by a sys- tem of rules known as procedure.這些標準被用于遵循某些固定原則的訴訟,而這些 固定原則又由一套被稱為程序法的規則確定。

“known as procedure”修飾“system of rules…”,“set out by a system of rules known as procedure”修飾“fixed lines”,“that follows some fixed lines set out by a system of rules known as procedure”為定語從句,修飾“proceeding”。

3.The rules of procedure are the litigating lawyer regulatory and enabling legislation.程 序法規對訴訟律師來說既是規范性法規又是授權性法規(意思是程序法既規范了訴 訟律師的行為,又是他們行動的依據)。

regulatory and enabling legislation:規范和授權法規

4.Its essential feature is that a decision is made by judge,or judge with jury,who finds the facts and applies the law from submissions made by partisan advocates on behalf of the parties.它的主要特征是由法官(或法官加陪審團)根據雙方辯護人所提出的證據認 定事實并適用法律。

“find the facts”認定事實,凡有陪審團參加的案件,由陪審團認定事實。

“apply the law”適用法律,在有陪審團參加的案件審理中。琺官只適用法律,在沒 有陪審團參加的案件中,法官既認定事實又適用法律。

“made by partisan advocates on behalf of the parties”修飾“submissions”,“from sub- missions made…”修飾“finds”和“applies”。

5.the procedural safeguards of due process: 正當司法程序條款中的程序保障

6.They rule on the admissibility of evidence, but this is a negative function of keeping out unreliable evidence rather than an affirmative one of providing the facts upon which a case is determined.他們(法官)要裁定證據的可接受性,但這是一種消極的作用,是摒棄不可靠的證據,而不是積極地提供作為判案依據的事實。

admissibility of evidence證據的可接受性,一般以證據法為依據來判斷證據的可接受 性。

7.interested parties有關的當事人,有利害關系的當事人

8.Although impartial investigation may be better when no final derision need be reached.setting up sidesmakes easier the type of yes-or-no decision that is thought to be necessary in a lawsuit.盡管在不需要作出最終決定的時候不偏不倚的調查可能更合適,但樹立 對立面使訴訟所必須的是或否的判決更為簡單。

此句的意思是,在某些無須作最終結論的探索(如科學探討等)中,公正的調查更 可取。但是,法院在訴訟中必須回答是或不是的問題(如是不是侵權,是不是違約),這時候樹立對立面,讓原被告雙方針鋒相對地辯論,就使法官對這種是非題作出最終結論變得更為容易了。

9.When one reflects on the fact that 1.1ndeg the adversary system victory often turns on factors other than the true merits of the case,there is reason to be skeptical about it.抗辯制下勝訴往往不取決于案件本身的實體問題而取決于其他因素,想到這點,人們便有理由對其產生懷疑。

true merits of the case:案件所涉的實體問題,案件的是非曲直

10.It is part of our learning process to examine,“to wash in cynical acid,”each rule,each form,each principle we learn.對我們所學的每一條規則,每一種方式和每一個原則進行檢查,進行“冷峻的酸處理”,本身就是學習過程的一部分。“cynical”的意思是“憤世嫉俗的”,“不相信人間有真誠善意的”,在此是指不輕易相信每一條規則的合理性。

11.But while doing so,keep in mind that many,diverse,and complex are the aspects of both justice and efficiency.

在此句中,“that”引出的賓語從句是倒裝句,正常語序應為:But while doing so,keep in mind that the aspects of both justice and efficiency are many,diverse and complex.

責任編輯:熠淏

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