lesson 4

Something about Civil and Criminal Procedures

I. Read the text again and decide whether these statements are

true or false:

1. Civil procedure occupies the central position in procedural law while the civil law does not have the same status within substantive law. F

2. Theoretically, in the civil law system the control of allegations and proof belongs to the parties, while practically, this principle tends to be tempered by the civil law judge‟s extensive power. T 3. In common law, a civil action is a continuing series of meetings, hearings, and written communications during which evidence is

introduced, testimony is taken, and motions are made and decided. F

4. Common law practice tends to employ a single comprehensive

hearing model that works well for the relatively simple cases. T

5. There are relatively few restrictions on admissibility of evidence in the common law system. F

6. In the civil law system, the trial is conducted in an “inquisitorial” mode, which connotates inquisition and is indicative of unfairness to the accused. F

7. The fact that lay judges participate on mixed courts with

professional judges is a functional analog to the jury. T

8. In the adversary system the judge is just a passive arbiter, and the prosecutor is simply a partisan. F

II. Mark each Latin word or French word with its English

equivalent :

1. astreinte d 2. in rem c

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3. in personam e 4. dictum a 5. ratio decidendi f 6. obiter dictum b 7. dossier g 8. action civile h

a. a statement of opinion or belief considered authoritative because of the dignity of the person making it

b. a judicial comment made while delivering a judicial opinion, esp. a remark made or expressed by a judge

c. involving or determining the status of a thing, and therefore the rights of persons generally with respect to that thing d. financial sanctions imposed by the judge

e. involving or determining the personal rights and obligations of the parties

f. the principle or rule of law on which a court‟s decision is founded g. a file or belief, or a bundle of papers pertaining to a particular matter

h. civil anction

III. Match each word used by the lawyer with its definition:

1. code e 2. court d 3. discovery a 4. finding f 5. damages b 6. tax j 7. discretion c 8. suit i 9. admissibility a 10. plea h

a. compulsory disclosure, at a party‟s request, of information that relates to the litigation.

b. money claimed by, or ordered to be paid to, a person as

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compensation for loss or injury.

c. individual judgment; the power of free decision-making

d. the judge or judges who sit to adjudicate disputes and administer justice.

e. a systematic collection or revision of laws, rules, or regulations. f. a determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record, usu. presented at the trial or hearing.

g. the quality or state of being allowed to be entered into evidence in a hearing, trial, or other proceeding.

h. an accused person‟s formal response of “guilty”, “not guilty”, or “no contest” to a criminal charge.

i. any proceeding by a party or parties against another in a court of law

j. to assess damages or costs of litigation IV. Translate the following legal terms into Chinese:

1. civil law 2. jurisdiction 3. hearing

4. common law 5. panel

6. inquisitorial system 7. civil litigation 8. substantive law 9. procedural law 10. hearsay evidence

V. Complete the sentences below using the words given:

prosecutor; sanction; witness; motion; code; peculiarity; partisan; defendant; warrant; allegations

1. The motion was adopted by a majority of six votes. 2. These facts are a witness to his carelessness.

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3. The book can be published without the sanction of the author. 4. The public prosecutor has brought a criminal charge against the culprit.

5. A material allegation in a pleading is one essential to the claim or defense.

6. Common law emphasizes precedent while civil law emphasizes on the wording of the applicable code.

7. In the civil law system if the same wrongful act gives rise to both criminal and civil liability, the injured person is permitted to intervene directly in the criminal action rather than bring a separate civil suit, which is a peculiarity of its criminal procedure.

8. You must listen to points of view of both sides and try not to be partisan.

9. A person accused or sued in a legal case is called a defendant. 10. Nothing can warrant his interference with the case. VI. Translate the following sentences into English:

1. 在对抗制模式下，各方均赋予同等机会通过自己律师提出诉讼。关于有罪与否的最后判决留给由陪审员代表的公众作出，而非法官。

2. 职业道德的要求也约束着律师们不可滥用对抗程序。例如，若律师提起一些诸如在事实上和法律上均无根据可循的无足轻重的诉讼，那是不道德的。

3. 律师不可以故意作出虚假的事实论证或提呈伪证据。若违背了到的限定，律师会被处以多种方式的惩罚，包括向法院或其他当事人支付罚金，直至取消律师资格。

VII. Put the underlined parts of following passage into Chinese:

In the adversary system, it is the lawyers and their parties that control the development of the case. They plan the whole courtroom drama, seek out possible evidence, and choose which evidence they

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should present to the court. Quite often such lawyers are attorneys with rich experience in bar practice. In this system, the judge plays a neutral, impartial, and passive role as a participant, who explains the procedural rules and the principles of law to the lawyers. He is the arbiter of the law.

In the inquisitorial system, lawyers do not play such greater roles. It is the judge that plays an active role as a fact-finder concerned with the discovery of evidence. He is supposed to conduct the distinguished inquiry, call witnesses and experts, investigate the facts, put evidence together, and build and decide the case.

Supplementary Reading

One common element in both torts and criminal law is that both areas of liability may require that a mental element on the part of the defendant is present. In criminal law, it is vital to criminal liability that Mens rea, the guilty mind, (e.g. intention, recklessness, gross negligence) is proven. Without proof of Mens rea a crime cannot be established, (except in a very limited category of crimes known as absolute liability offences). The defendant‟s motive for committing the offence is irrelevant. In tort, what can be said with certainty is that the absence of a malicious motive will not make an otherwise unlawful act lawful. Similarly, the presence of malicious motive will not morally make an otherwise lawful act unlawful. In Bradford Corporation v. Pickles (1895), this point was succinctly made by Lord Mcnaghten who states: „It is the act, not the motive for the act that must be regarded. If the act, apart from the motive, gives rise merely to damage without legal injury, the motive however reprehensible it may be will not supply that element‟.

Intention is, however, another matter. Some torts specially require an intention to be proven on the part of the wrongdoer. Intention here refers to the defendant‟s knowledge that the consequences of his action are inevitable, where the consequences, either desired or not desired, are foreseen as certain to result from the defendant‟s action. Certain areas of liability in tort are said to be strict, meaning that liability does not depend upon the wrongdoer‟s

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state of mind.

Tortious liability, with notable exceptions (e.g. trespass, which is a strict liability tort) requires proof of fault. Professor Salmond has argued strongly that tortious liability is necessarily fault based. Similarly one can say that tortious liability is based upon the concept of individual responsibility; a person is only liable for his own actions. Strict liability does not fall happily into this philosophy. Other writers have stated three objections to Professor Salmond‟s view:

Fault is not an essential aspect of certain torts: trespass, nuisance, defamation and the vicarious liability of an employer for the tort of an employee.

Fault where it exists as an element should not be equated with guilty mind, mens rea, in the criminal law. Fault is a function of an objective standard of care which one is required to observe. An example of this can be seen in the case of Nettleship v. Weston (1971), where it was held that an inexperienced learner driver should be judged with reference to the standards of the „reasonable driver‟, albeit that the learner lacked the experience of the reasonable driver.

The object of the law of torts is to compensate rather than to punish. This assumes that finding fault on the part of the defendant is at most a side-issue, the principal issue is one of compensating the plaintiff‟s loss.

Comprehension Questions:

I. Answer the following questions in accordance with this passage:

1. Why is a mental element vital to criminal liability?

2. Is it possible for the malicious motive to make an otherwise unlawful act lawful?

3. Do all the torts require an intention to be proven on the part of the wrongdoer?

4. Is it generally accepted that tortious liability requires proof of fault? Why?

5. Is fault important to prove the defendant‟s wrong actions in tort?

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Why?

II. Choose the best answers to each of the following questions: A D B C B

1. What is the best title of this passage? A. The Mental Element in Tort

B. The Mental Element in Criminal Law

C. The Mental Elemental on the Part of the Defendant D. The Common Element in Both Torts and Criminal Law 2. The common element of torts and criminal law is ______. A. Recklessness or gross negligence B. the guilty mind C. intention D. all the above

3. What does “a reasonable driver” mean according to this passage? A. One who can drive fairly well and reasonably.

B. One who is supposed to posses proper or average driving skills whether he/ she is experienced or inexperienced C. One who very experienced in driving D. One that is given lawful license to driving

4. According to Professor Salmond, tortious liability is necessarily fault based. He may not mean that______.

A. tortious liability is based upon the concept of individual responsibility

B. a person is only liable for his own actions

C. Strict liability does not fall happily into this philosophy

D. if the tortfeasor is morally blameworthy, he would bear tort liability imposed by the law

5. Objections to Professor Salmond‟s view may not include the idea that ______.

A. Fault is not an essential aspect of certain torts like trespass and nuisance.

B. The guilty mind in criminal law is the same as the fault existing in tort

C. Fault is a function of an objective standard of care which one is required to observe.

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D. Fault existing as an element in tort is not the same as the

guilty mind in the criminal law.

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