法学论文外文翻译
法学专业毕业论文外文翻译--- 新西兰奥特来罗瓦的公正和法律
毕业论文外文资料翻译学院(系):专业：姓名：XXX学号：外文出处：1、《Center for Comparative Literature and Cultural Studies Monash University Melbourne》附件： 1.外文资料翻译译文；2.外文原文外文资料翻译译文新西兰奥特来罗瓦的公正和法律————两个案例的学习摘要：本文通过对两个案例的学习，分析在新西兰奥特来罗瓦法律的实践和这个殖民大陆上“非法”、“不文明”以及“混乱”的关系。
由于在奥特来罗瓦，法律和殖民利益的直接挂钩，我认为，无论在哈克党案还是迈尔五世万佳市议会案，关于辩护的法令都着重于法律的权威性和对差异性的排挤之间的关系。
据两案的法官说，毛利法律的规定和文化与“法律和秩序”这一原则想冲突。
根据殖民联系，毛利法律和文化与文明的威胁之间所表现出来的关系，法律和秩序展现了法律对于一种有文化偏差的习惯的操控，并且反映了帕克哈（欧洲新西兰的士族）的利益。
因此，挑战那浮出水面的威胁已使法律在任何案子里都展现出其原有的威胁，暴露那原本就控制着它的暴力，也因此为公众打开了批评的大门。
也许比实质上对体系的攻击更厉害的是，这些法令暴露了法律对公正性的挑战，不仅使法律有可能成为一种特定文化阶层利益的反映，而且因此能被改变得可以为公正服务。
关键词：殖民的，哈卡党，公正，毛利法律，新西兰，帕克哈1，暴力问题1978年，新西兰政府委托了一个报告，即众所周知的“罗珀报告”，这个报告在各种坏境下研究暴力行为。
虽然许多人都称赞这个报告，但人们也普遍注意到，很多来自毛利人的评论并不好。
许多批评家认为与毛利人在这些问题上商议的失败，影射出社会上和政治上存在更加普遍的不公正现象，这些都使给制造暴力创造了社会条件。
例如，泰特海·哈日怀瑞,争论说任何有关毛利人和暴力之间关系的报道应该考虑到这些暴力发生的社会和文化环境。
换句话说，必须考虑到权利和财富在社会中的不平均分布，以及在这些关系下“暴力”的确立，维持和产生。
法律翻译学术类文本
最高人民法院设于首都北京。它是国家的最高审 最高人民法院设于首都北京。 判机关，依法行使国家最高审判权，同时它负责 判机关，依法行使国家最高审判权， 监督地方各级人民法院和专门人民法院的工作。 监督地方各级人民法院和专门人民法院的工作。 最高人民法院由院长一人，副院长、审判长和审 最高人民法院由院长一人，副院长、 判员若干人组成。最高人民法院行使下列职 判员若干人组成。 权…… The Supreme People’s Court is located in Beijing, the capital city of China. It is the highest judicial organ and exercises the highest judicial power. At the same time, it supervises local courts and special courts at lower levels. The Supreme People’s Court is presided over by one president and a number of vice presidents, chief justices and justices. The Supreme People’s Court exercises the following powers…
Lecture 3
Translation of Academic Writings 法学学术类文本翻译
Categorization of Legal Documents
1. Academic writings 法学学术类文本 法学论文、评论、报道等 2. legislative documents 立法类文本 法典、法律、法规、条例等 3. legal forms 法律文书类文本 案情摘要、答辩状、判决书、契约、合同 等 by Sarcevic (1997:11)
法学专业强奸罪大学毕业论文外文文献翻译及原文
毕业设计（论文）外文文献翻译文献、资料中文题目：强奸罪文献、资料英文题目：文献、资料来源：文献、资料发表（出版）日期：院（部）：专业：法学专业班级：姓名：学号：指导教师：翻译日期： 2017.02.14毕业设计（论文）题目：论强奸罪的犯罪对象专业（方向）：法学专业外文出处：CRIMINAL LAW NEWS.ISSUE 52 FEBRUARY2013.ISSN 1758-843X.外文资料翻译译文强奸罪1.普通法系中的强奸“强奸”一词的字典定义包括对一个人或社区的任何严重破坏性侵犯。
在英国和美国共同法律，“强奸”在传统上描述了一个强迫女人与他性交的男人。
直到第二十世纪后期，通过对他的妻子的丈夫强迫性行为不被认为是强奸，因为一个女人（为了某些目的）不被视为一个独立的法人有权拒绝。
在某些情况下，一个女人被认为是在一个终身性的关系中预先给予了含蓄的知情同意。
然而，在大多数西方国家，现代刑法已经立法禁止这种例外，现在包括婚内强奸和性暴力的阴道性交以外的行为，如强迫性行为，这是在传统上禁止鸡奸法，在他们的定义中的“强奸”。
因此，“强奸”这个术语有时被认为是“加载”，许多司法管辖区承认，在它的替代，更广泛的类别的性侵犯或性暴力。
在某些司法管辖区，侵犯已被构造为包括在没有得到许可的情况下，将身体分泌物弄在其他人身上。
在某些司法管辖区，这被认为是自动加重的殴击罪（Zarrokh，2007）。
2.暴力强奸罪当暴力行为超出了强奸的本身就成为攻击的一部分，包括身体暴力或威胁的伤害，死亡威胁或威胁对家庭成员，该罪行被称为暴力强奸。
暴力强奸的罪行可能由陌生人或者甚至是受害者认识的人犯下，研究表明，这种类型的强奸是最常见的报道(Bachman and Saltzman, 1995)。
3.美国的强奸强奸的法律定义在州与州之间是不同的，但是尽管如此，强奸通常被定义为强迫或者非自愿的性交。
强奸可以通过恐吓、伤害的威胁和/或实际的暴力来完成。
法学论文题目作文模板英文
法学论文题目作文模板英文英文回答：Thesis Statement Template for Legal Research Papers。
1. The Use of Social Media in Criminal Investigations:The Impact of Social Media on Privacy Rights and the Fourth Amendment。
The Admissibility of Social Media Evidence in Court。
2. The Future of Artificial Intelligence in the Legal System:The Ethical Implications of AI in Legal Decision-Making。
The Role of AI in Accessing Justice and Improving Legal Outcomes。
3. The Intersection of Climate Change and Environmental Law:The Legal Challenges of Climate Change Mitigation and Adaptation。
The Role of International Environmental Law in Addressing Global Climate Issues。
4. The Legal and Economic Implications of FinTech:The Regulation of Cryptocurrencies and Blockchain Technology。
The Impact of FinTech on Financial Inclusion and Access to Capital。
5. The Effectiveness of Sentencing Reform in Reducing Recidivism:The Causes and Consequences of Mass Incarceration。
法学专业外文翻译
法学专业外文翻译题目论环境犯罪的立法完善专业法学系别历史文化与法学系A Graduated Punishment Approach toEnvironmental CrimesSusan F. Mandiberg and Michael FaureI. INTRODUCTIONWhy do we have environmental crimes? What social harms are we addressing, and what interests are we vindicating through use of the criminal sanction? The answer to these questions is not found in traditional criminal law principles. This is because environmental interests and values do not enjoy an absolute protection in the law. Unlike theft or homicide, for example, which may cause personal benefits only to the criminal, most polluting activities generate substantial societal benefits as well as environmental costs. Thus, environmental law in many countries is aimed largely at an administrative control of pollution, usually through licensing and permitting systems. Environmental criminal statutes largely function to help ensure that control.The interweaving of administrative and criminal law has been pronounced from the beginning of modern environmental crimes in the mid-twentieth century. Then, as now, environmental criminal law focused onpunishing the lack of a permit or the violation of permit or other regulatory requirements and conditions. However, although this administrative dependence of environmental criminal law may have been the general starting point, European commentators have increasingly pointed to serious weaknesses in this approach. For one thing, if the role of the criminal law is restricted to punishing administrative disobedience, other types of pollution may go unpunished, thus limiting the ability of the criminal law to protect ecological values. In addition, unlike the situation with traditional crimes, administrators (not legislators) decide what is and is not criminal. This critique of the absolute administrative dependence of environmental criminal law has had its effects on European legislation and on international conventions.5 As a result, one can now increasingly notice the use of other models of environmental crimes, models that are less dependent on administrative law.The goal of this paper is to examine and advocate for approaches to environmental crimes in addition to the punishment of disobedience to administrative rules and decisions. We acknowledge that an effective environmental criminal scheme must include administrative-disobedience crimes. For one thing, disobedience to at least some administrative decisions is a serious matter. For another, such offenses are easiest to prove6 and thus provide a mechanism for punishing some environmental malfeasance that cannot be otherwise addressed.7 Nevertheless, actual harm to the environment—and the threat of suchharm—is more serious than mere administrative disobedience. Whenthe government can prove that someone has both acted unlawfully and has caused or threatened such harm, an effective system should have crimes in place to address the situation. In addition, in circumstances of extreme environmental harm, it is important to include a crime that does not require the government to prove any disobedience to administrative rules and decisions. Finally, the authorized punishments for offenses on this continuum of environmental criminal statutes should be graduated according to the seriousness of the social harms at issue.II. FOUR MODELS OF CRIMINALIZATION OF ENVIRONMENTALHARM- 1 -Criminal statutes address specific social harms. The act element of a criminal statute articulates the social harm at which the crime is directed. The mental-state element articulates the attitude a defendant must have had toward the social harm in order to be criminally culpable.13 While mental state is a crucial element in determining criminal liability, the analysis in this article focuses exclusively on the act element of environmental crimes.Focusing on the act element in a 1995 article, Michael Faure and Marjolein Visser proposed and examined four models of environmental crimes. First is Abstract Endangerment, a model criminalizing disobedience to administrative rules and requirements perse . Second isConcrete Endangerment Crimes with Administrative Predicates (“Concrete Endangerment”).Concrete Endangerment crimes involve behavior that both violates regulatory law and poses a threat of harm to the environment; thus, on the surface, at least, these crimes target two social harms. Crimes in the third model, Serious Environmental Pollution, punish very serious environmental harm even if the activity at issue was not otherwise unlawful; these appear to be aimed at preventing or punishing only harm to the environment itself. The fourth model, Vague Statutes, covers statutes that establish a general duty of care. The present analysis explores the first three of these models in more detail, but it also expands upon the framework. This is because, upon further consideration, we are convinced that it is useful to add an additional model for crimes that involve both an administrative predicate and actual environmental harm. We label this model Concrete Harm and refer to it as Model IV. We do not address the Vague Statutes Model.A. Model I: Abstract EndangermentOffenses following the Abstract Endangerment Model do not punish environmental pollution. Instead, their role is to enforce prior administrative decisions, and so they punish the failure of a regulated entity to adhere to administrative dictates concerning environmental regulations. In essence, the Abstract Endangerment Model merely adds criminal law to the enforcement mechanisms available to ensure compliance with monitoring, paperwork, licensing, and other rules meantto regulate pollution producing activities. The criminal provision normally contains a general statement that anyone who violates the provisions of the act or of the regulations, licenses, or permits issued to implement it will be punished with a specific sanction. Included in this group are statutes that make it a crime to engage in specified activities without a required license or operating permit. The criminal law typically applies in these kinds of cases as soon as the administrative provision has been violated, even if no actual harm or threat of harm to the environment occurs.If the criminal provision requires or presumes environmental harm or the threat of such harm, the statute is not of the Abstract Endangerment variety.Although Abstract Endangerment crimes focus on vindicating administrative values, punishing the administrative violation indirectly furthers ecological values in two ways. First, an entity that follows administrative rules is less likely to harm the environment. More to the point, if administrative rules are followed, the regulatory agency can monitor the entity’s operations to ensure that harm is less likely to occur.Nevertheless, although environmental values are implicated byAbstract Endangerment crimes, the overlap with such values is incomplete. For one thing, an entity in compliance with all administrative rules can still cause environmental “harm.” Consider that, for each parameter—air, water, soil— the administrative agency will set a baseline of “acceptable”contact between a pollutant and the environment. This baseline will reflect a compromise among such considerations as the pollutant’seffect on the environment, society’s need for the polluting activity, and the existence (and cost) of technology that can mitigate the damage. Thus, compliance with the baseline does not mean a lack of environmental “harm.” However,the disconnect between administrative and environmental values cango the other way as well. That is, an entity that violatesadministrative rules may not be causing environmental harm. Take, for example, an entity that transports hazardous waste without the required paperwork.- 2 -This violation harms administrative norms first and foremost. But there is no emission, and thus no environmental harm: as regards environmental values, the crime is inchoate. Regardless of which aspect of the disconnect one views, the failure of Abstract Endangerment crimes to focus on an activity’s impact on the environment makes this model less thancompletely effective in protecting ecological values.B. Model II: Concrete Endangerment Crimes with Administrative PredicatesThe second model is that of Concrete Endangerment Crimes with Administrative Predicates (“Concrete Endangerment”). As with the first model, the activity in question must take place in an unlawful way by engaging in the activity without a required permit or otherauthorization or by violating conditions in a statute, regulation, or permit.51 However, the characteristic of unlawfulness may be integratedin different ways. Some of the crimes in this model include as an element the fact of violating regulatory law. Others provide the defense that the activity was authorized.53 Even though the legal technique is different, the unlawfulness of the discharge remains a factor in criminality.C. Model III: Concrete Harm Crimes with Administrative PredicatesThe third model is Concrete Harm Crimes with AdministrativePredicates (“Concrete Harm”). As noted above, this model has b een added to Faure’s and Visser’s original approach. Statutes fitting this model are similar to Concrete Endangerment crimes in that they require proof that the actor violated an administrative rule. However, these crimes go beyond threats and require proof of actual environmental harm.The identification of crimes fitting Model III can be tricky, as it depends upon the definition of “environmental harm.” As we will showin Part 1 of this section, some statutory definitions focus on the environment directly, but others adopt an anthropocentric definition of “environmental harm.” These latter seem based on the premise that emissions or releases that threaten or harm human health, safety, orother interests must of necessity also harm the environment. To the extent that this interpretation is accurate, the “knowing endangerment” provisions of the CWA and RCRA are examples of Model III crimes. Inaddition, Europe provides a number of examples of Concrete Harm crimes.Because we are working toward a graduated punishment approach to environmental crimes, it makes sense to us to differentiate Concrete Harm statutes from the crimes in Model II. Concrete Harm crimes require proof of actual harm, and so it is logical for such statutes to impose higher penalties than those requiring merely a threat of harm. When the government can prove both an administrative violation and actual environmental harm, the authorization and imposition of increased punishment would be expected to further the vindication of environmental values through increased deterrence and retribution.105 However, Concrete Harm statutes run into conceptual and proof problems that can frustrate these goals. For one thing, the concept of environmental “harm” is difficult to define. A second problem invol ves causation. We will explore these in turn.1. Defining Environmental “Harm”A traditional way of measuring environmental harm is to look through the lens of harm to human beings instead of focusing on the environment itself. One variation focuses on threats to human health or safety. A second variation is to focus on harm to private property. A final way tolook through the lens of harm to human beings is to measure financial costs other than damage to property itself. At first, it may not be clear that statutes such as these vindicate environmental values at all. After all, the threat or existence of environmental harm is not an element of the crime—these results are not even mentioned. And yet, these statutes are part of environmental protection schemes. Their placement within such schemes leads to the conclusion that harm to humans is used as a surrogate measure for harm to the environment: if the pollution is extreme enough to threaten human interests, the environment must of necessity also be threatened.There are drawbacks to this surrogate approach. One obvious problem is that environmental damage might occur far from populated areas and thus remain outside the- 3 -scope of statutes that define harm in human terms. However, there is another, more serious drawback. Consider, for instance, the act of draining a wetland and filling it with soil or rocks. Elimination of wetlands may endanger human health and safety in the long term, for example by changing hydrological patterns, contributing to flooding, and so forth. However, eliminating a wetland does not present the type of short-term danger that occurs, say, in a Bhopal-type situation where toxic chemicals are emitted into the ambient air. If harm to human health, safety, and property is viewed only in the short term, the actor who fills the wetland cannot be prosecuted for a Concrete Harm orSerious Environmental Harm crime; even a Concrete Endangerment crime is off limits if the threat is viewed in the short term. But this result seems wrong. Environmental harm has, in fact, occurred, as eliminating the wetland certainly has dire short-term consequences for the flora and fauna in the ecosystem. If we are to use the criminal sanction to address this situation through anything other than Abstract Endangerment crimes, we will have to articulate what we mean by harm to the environment without using human values as a surrogate.A legislature that wants to address a full spectrum of environmental harm must articulate a standard that reflects purely environmental values. The statute must require proof of something more than mere contact between a pollutant and the environment; otherwise, it would be functionally no different from the “presumed harm” variety of the ConcreteEndangerment Model. But what’s more? And how can a legislature define what may beineffable without violating the principle of legality?Examples do exist of criminal statutes that attempt to go beyond an anthropocentric focus. Some speak in terms of environmental “harm” or “damage” or authorize differences insanctions based on degrees of “harm.”Others require proof of “pollution.” Still others punish negative changes to the existing environment. While such provisions are laudable for their focus on environmental values, they leave it to either thefact finder or appellate case law to make the notion of harm (or “damage,” “suitability,” “detriment,” or even “pollution”) more concrete. The same problem may exist even in provisions that appear at first glance to be quite clear. One German statute, for instance, punishes any actor in a protected natural area who unlawfully “mines or extracts mineral resources or other soil components; makes excavations or heaps, creates, alters or removes bodies of water; drains moors, swamps, marshes or other wetlands; clears a forest; [or] damages or removes plants of a specially protected species….”; however this provision adds that the activity must “thereby interfere not insubstantially” with the interest in question,making the definition less useful than it might have been.Open-ended definitions of environmental harm may be attractive to legislators, but they also create problems. One problem arises if the statute allows the fact finder to equate “harm” with any negative change in the quality of water, air, or soil no matter how minor. This is because any contact between a pollutant and the environment is likely to cause some minor negative change in the latter. Such aninterpretation of “harm” conflates Model II, involving a threat of “harm”and Model III, which requires actual “harm.” A coherent environmental criminal scheme should guide fact finders in distinguishing between these degrees of seriousness.2. The Issue of CausationConcrete harm crimes require the prosecution to prove that the defendant’s behaviorcaused environmental harm, however that is defined. Serious Environmental Harm crimes—some of those in Model IV, to be discussed below—carry the same requirement.Proving causation is not particularly difficult in the case of a single polluting event that results in clear damage. However, the requirement could present a challenge to prosecutors in other situations, reducing the number of cases in which these result-defined crimes are useful as tools of environmental protection.Causation problems are likely to be common in prosecutions requiring proof of actual harm. This is because in many situations a defendant may be able to show that one or more- 4 -additional actors independently emitted pollutants into the same water, soil, or air, either previously, simultaneously, or subsequently to the defendant’s own actions. Of course, similarcausation problems also arise in the context of traditional crimes with result elements, most notably in the prosecution of homicides. This being so, any jurisdiction with a developed criminal law will have worked out solutions to at least the most common of these problems, and there is likely to be informative scholarly material on any issues still outstanding. The main challenge for pollution crimes is to translate theexisting solutions from the vocabulary of homicide (or assault, or other more traditional result-defined crimes) to that of environmental harm.It is valid to ask whether there is really a need to undertake the task of developing a body of causation law in the context of environmental crimes. Why not be content to use Abstract and Concrete Endangerment crimes, which do not require proof that the defendant caused a concrete result? The answer is related to our suggestion of a graduated punishment approach, discussed in Section III. Under such an approach, Concrete Harm crimes would be punished more severely than Abstract or Concrete Endangerment crimes (and Serious Environmental Harm crimes might carry even more severe punishment). Where proof of causation is difficult or impossible, conviction for the lower offense would have to suffice. In cases in which such proof could be made out, however, the more serious crime more accurately reflects the defendant’s behavior. Any scheme tha t lacks offenses requiring actual harm conflates the seriousness of different degrees of criminality.This section has addressed a model in which the government mustprove both an administrative violation and actual harm to the environment. While there are challenges involved in proving harm and causation, more severe punishment might accompany convictions in which these challenges have been met. But what if the government can prove both harm and causation but no administrative violation? Should compliance with administrative requirements shield polluters from theworst types of environmental damage? The next section addresses that issue.D. Model IV: Serious Environmental Pollution: Eliminating the Administrative LinkThis model, which we will call “Serious Environmental Pollution”for ease of reference, aims to punish very serious pollution regardless of whether there is any underlying regulatory violation. In fact, statutes following this model impose criminal sanctions despite the defendant having obeyed license or permit conditions or other regulatory laws. To put it differently, in this model following the conditions of a license cannot constitute a defense: the “permit shield” does not apply. Thus, this model differs from Model III.The administrative link is broken for a reason: crimes followingthis model are based on the assumption that the environmental harm at issue is of a magnitude beyond that contemplated by the administrative rules with which the entity complied. Crimes following this model are relatively rare. However, as the examples to come show, they do exist. The existing crimes vary in the way they eliminate the link to administrative rules. Some eliminate the “permit shield.” Others eliminate the “unlawfulness” element from the crime’s definition. A third variation is the use of traditional crimes, as opposed to specifically environmental criminal provisions. The remainder of this section will describe those variations, followed by a general discussion of implications accompanying these distinctions.FROM:Susan F. Mandiberg,Michael Faure.A Graduated Punishment Approach to Environmental Crimes[J].Columbia Journal of Environmental Law,Vol.34,2009.- 5 -环境犯罪的分级惩罚模型构想[美]苏珊?曼迪伯格 [比利时]迈克?福尔一、导语我们为什么要规范环境犯罪? 制裁犯罪时，我们应对的是哪些社会危害，又在维护什么利益? 在传统刑法中这些问题是无法找到答案的。
法学英文毕业论文
法学英文毕业论文AbstractWith the progress of society and the development of economy, the legal system is constantly improving. Law is a very important subject and is widely studied by people in many fields. This paper is aimed at analyzing the causes of wrongful convictions, and discusses the significance of avoiding wrongful convictions. Besides, several suggestions are put forward to reduce the occurrence of wrongful convictions.Key words: wrongful convictions; causes; avoiding; suggestionsIntroductionWrongful conviction is a very serious issue and has become a global problem. It refers to the situation that a person is sentenced to imprisonment or even sentenced to death penalty wrongly. Wrongful conviction is a violation of human rights, it undermines the legitimacy of the legal system and the authority of the judiciary, and it may also cause huge impact on the individuals and their families. Therefore, it is the common responsibility of the society to investigate the causes of wrongful convictions,avoid them, and protect the rights of the accused persons.Causes of wrongful convictionsMistaken eyewitness testimonyEyewitness testimony is regarded as an important piece of evidence in many cases, but it is also subject to many limitations, such as the influence of emotions, memory distortions, and poor lighting conditions, which may lead to wrong identification. In the case of Texas v. Cole (2011), a bank robber was wrongfully convicted due to the mistaken identification by witnesses, and he was subsequently exonerated after a DNA test. Therefore, to avoid wrongful convictions caused by mistaken eyewitness testimony, the importance of eyewitness testimony should be reevaluated and precautionary measures should be taken to ensure the credibility of the testimony.False confessionsFalse confession is another significant cause of wrongful convictions. People may be coerced to confess crimes they did not commit, especially when they are under mental or physical pressure, such as threats, torture, or prolonged interrogation. For instance, In the case of Ryan Ferguson (2013), he was wrongfullyconvicted and spent almost 10 years in prison due to the false confession by another witness. Therefore, to avoid wrongful convictions caused by false confessions, legal procedures for interrogations should be regulated, the right to remain silent should be emphasized, and the confession evidence should be treated with caution.Ineffective legal representationIneffective legal representation is also a significant cause of wrongful conviction. It refers to situations where the legal representation is not competent or does not provide the necessary resources, including lack of investigation and failure to call expert witnesses. In the case of Sean Hodgson (2012), he was wrongfully convicted for 27 years, and the delay in his release was mainly due to the inadequate representation of his case. Hence, to avoid wrongful convictions caused by ineffective legal representation, the legal system should guarantee a competent and effective defense counsel for the accused, and adequate resources should be allocated to support them.Suggestions to avoid wrongful convictionsStrengthen the forensic evidenceForensic evidence, including DNA testing, fingerprint analysis, and ballistics analysis, is a reliable and unbiasedsource of evidence, which can effectively identify the perpetrators and reduce the risk of wrongful convictions. Therefore, more resources should be invested in forensic technology, and forensic evidence should be used more widely in trials.Improve the legal systemThe legal system should guarantee the rights of the accused, including the right to a fair trial, the presumption of innocence and the right to review. The judicial system should also establish the innocent project to review and investigate wrongful convictions, to help exonerate those who have been wrongfully convicted.ConclusionIn conclusion, wrongful conviction is a major problem and has serious consequences. It is necessary to analyze the causes of wrongful convictions and adopt effective measures to avoid them. Strengthening forensic evidence and improving the legal system is of great significance in reducing the probability of wrongful conviction. Only by establishing a fair and just legal system can we protect the rights of the accused and maintain the legitimacy of the judiciary.。
法学专业外文翻译
附录一(外文原文)BOOK II mean to inquire if, in the civil order, there can be any sure and legitimate rule of administration, men being taken as they are and laws as they might be. In this inquiry I shall end always to unite what right sanctions with what is prescribed by interest, in order that justice and utility may in no case be divided.I enter upon my task without proving the importance of the subject. I shall be asked if I am a prince or a legislator, to write on politics. I answer that I am neither, and that is why I do so. If I were a prince or a legislator, I should not waste time in saying what wants doing; I should do it, or hold my peace.As I was born a citizen of a free State, and a member of the Sovereign, I feel that, however feeble the influence my voice can have on public affairs, the right of voting on them makes it my duty to study them: and I am happy, when I reflect upon governments, to find my inquiries always furnish me with new reasons for loving that of my own country.1. SUBJECT OF THE FIRST BOOKMan is born free; and everywhere he is in chains. One thinks himself the master of others, and still remains a greater slave than they. How did this change come about? I do not know. What can make it legitimate? That question I think I can answer.If I took into account only force, and the effects derived from it, I should say: "As long as a people is compelled to obey, and obeys, it does well; as soon as it can shake off theyoke, and shakes it off, it does still better; for, regaining its liberty by the same right as took it away, either it is justified in resuming it, or there was no justification for those who took it away." But the social order is a sacred right which is the basis of all other rights. Nevertheless, this right does not come from nature, and must therefore be founded on conventions. Before coming to that, I have to prove what I have just asserted.2. THE FIRST SOCIETIESThe most ancient of all societies, and the only one that is natural, is the family: and even so the children remain attached to the father only so long as they need him for their preservation. As soon as this need ceases, the natural bond is dissolved. The children, released from the obedience they owed to the father, and the father, released from the care he owed his children, return equally to independence. If they remain united, they continue so no longer naturally, but voluntarily; and the family itself is then maintained only by convention.This common liberty results from the nature of man. His first law is to provide for his own preservation, his first cares are those which he owes to himself; and, as soon as he reaches years of discretion, he is the sole judge of the proper means of preserving himself, and consequently becomes his own master.The family then may be called the first model of political societies: the ruler corresponds to the father, and the people to the children; and all, being born free and equal, alienate their liberty only for their own advantage. The whole difference is that,in the family, the love of the father for his children repays him for the care he takes of them, while, in the State, the pleasure of commanding takes the place of the love which the chief cannot have for the peoples under him.Grotius denies that all human power is established in favour of the governed, and quotes slavery as an example. His usual method of reasoning is constantly to establish right by fact. It would be possible to employ a more logical method, but none could be more favourable to tyrants.It is then, according to Grotius, doubtful whether the human race belongs to a hundred men, or that hundred men to the human race: and, throughout his book, he seems to incline to the former alternative, which is also the view of Hobbes. On this showing, the human species is divided into so many herds of cattle, each with its ruler, who keeps guard over them for the purpose of devouring them.As a shepherd is of a nature superior to that of his flock, the shepherds of men, i.e., their rulers, are of a nature superior to that of the peoples under them. Thus, Philo tells us, the Emperor Caligula reasoned, concluding equally well either that kings were gods, or that men were beasts.The reasoning of Caligula agrees with that of Hobbes and Grotius. Aristotle, before any of them, had said that men are by no means equal naturally, but that some are born for slavery, and others for dominion.Aristotle was right; but he took the effect for the cause. Nothing can be more certain than that every man born in slavery is born for slavery. Slaves lose everything in theirchains, even the desire of escaping from them: they love their servitude, as the comrades of Ulysses loved their brutish condition. If then there are slaves by nature, it is because there have been slaves against nature. Force made the first slaves, and their cowardice perpetuated the condition.I have said nothing of King Adam, or Emperor Noah, father of the three great monarchs who shared out the universe, like the children of Saturn, whom some scholars have recognised in them. I trust to getting due thanks for my moderation; for, being a direct descendant of one of these princes, perhaps of the eldest branch, how do I know that a verification of titles might not leave me the legitimate king of the human race? In any case, there can be no doubt that Adam was sovereign of the world, as Robinson Crusoe was of his island, as long as he was its only inhabitant; and this empire had the advantage that the monarch, safe on his throne, had no rebellions, wars, or conspirators to fear.3. THE RIGHT OF THE STRONGESTThe strongest is never strong enough to be always the master, unless he transforms strength into right, and obedience into duty. Hence the right of the strongest, which, though to all seeming meant ironically, is really laid down as a fundamental principle. But are we never to have an explanation of this phrase? Force is a physical power, and I fail to see what moral effect it can have. To yield to force is an act of necessity, not of will -- at the most, an act of prudence. In what sense can it be a duty?Suppose for a moment that this so-called "right" exists. I maintain that the sole result isa mass of inexplicable nonsense. For, if force creates right, the effect changes with the cause: every force that is greater than the first succeeds to its right. As soon as it is possible to disobey with impunity, disobedience is legitimate; and, the strongest being always in the right, the only thing that matters is to act so as to become the strongest. But what kind of right is that which perishes when force fails? If we must obey perforce, there is no need to obey because we ought; and if we are not forced to obey, we are under no obligation to do so. Clearly, the word "right" adds nothing to force: in this connection, it means absolutely nothing.Obey the powers that be. If this means yield to force, it is a good precept, but superfluous: I can answer for its never being violated. All power comes from God, I admit; but so does all sickness: does that mean that we are forbidden to call in the doctor? A brigand surprises me at the edge of a wood: must I not merely surrender my purse on compulsion; but, even if I could withhold it, am I in conscience bound to give it up? For certainly the pistol he holds is also a power.Let us then admit that force does not create right, and that we are obliged to obey only legitimate powers. In that case, my original question recurs.4. SLA VERYSince no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority among men. If an individual, says Grotius, can alienate his liberty and make himself the slave of a master, why could not a whole people do the same and make itself subject to a king?There are in this passage plenty of ambiguous words which would need explaining; but let us confine ourselves to the word alienate. To alienate is to give or to sell. Now, a man who becomes the slave of another does not give himself; he sells himself, at the least for his subsistence: but for what does a people sell itself? A king is so far from furnishing his subjects with their subsistence that he gets his own only from them; and, according to Rabelais, kings do not live on nothing. Do subjects then give their persons on condition that the king takes their goods also? I fail to see what they have left to preserve.It will be said that the despot assures his subjects civil tranquillity.Granted; but what do they gain, if the wars his ambition brings down upon them, his insatiable avidity, and the vexations conduct of his ministers press harder on them than their own dissensions would have done? What do they gain, if the very tranquillity they enjoy is one of their miseries? Tranquillity is found also in dungeons; but is that enough to make them desirable places to live in? The Greeks imprisoned in the cave of the Cyclops lived there very tranquilly, while they were awaiting their turn to be devoured.To say that a man gives himself gratuitously, is to say what is absurd and inconceivable; such an act is null and illegitimate, from the mere fact that he who does it is out of his mind. To say the same of a whole people is to suppose a people of madmen; and madness creates no right.Even if each man could alienate himself, he could not alienate his children: they are born men and free; their liberty belongs to them, and no one but they has the right todispose of it. Before they come to years of discretion, the father can, in their name, lay down conditions for their preservation and well-being, but he cannot give them irrevocably and without conditions: such a gift is contrary to the ends of nature, and exceeds the rights of paternity. It would therefore be necessary, in order to legitimise an arbitrary government, that in every generation the people should be in a position to accept or reject it; but, were this so, the government would be no longer arbitrary.To renounce liberty is to renounce being a man, to surrender the rights of humanity and even its duties. For him who renounces everything no indemnity is possible. Such a renunciation is incompatible with man's nature; to remove all liberty from his will is to remove all morality from his acts. Finally, it is an empty and contradictory convention that sets up, on the one side, absolute authority, and, on the other, unlimited obedience. Is it not clear that we can be under no obligation to a person from whom we have the right to exact everything? Does not this condition alone, in the absence of equivalence or exchange, in itself involve the nullity of the act? For what right can my slave have against me, when all that he has belongs to me, and, his right being mine, this right of mine against myself is a phrase devoid of meaning?Grotius and the rest find in war another origin for the so-called right of slavery. The victor having, as they hold, the right of killing the vanquished, the latter can buy back his life at the price of his liberty; and this convention is the more legitimate because it is to the advantage of both parties.But it is clear that this supposed right to kill the conquered is by no means deduciblefrom the state of war. Men, from the mere fact that, while they are living in their primitive independence, they have no mutual relations stable enough to constitute either the state of peace or the state of war, cannot be naturally enemies. War is constituted by a relation between things, and not between persons; and, as the state of war cannot arise out of simple personal relations, but only out of real relations, private war, or war of man with man, can exist neither in the state of nature, where there is no constant property, nor in the social state, where everything is under the authority of the laws.Individual combats, duels and encounters, are acts which cannot constitute a state; while the private wars, authorised by the Establishments of Louis IX, King of France, and suspended by the Peace of God, are abuses of feudalism, in itself an absurd system if ever there was one, and contrary to the principles of natural right and to all good polity.War then is a relation, not between man and man, but between State and State, and individuals are enemies only accidentally, not as men, nor even as citizens, but as soldiers; not as members of their country, but as its defenders. Finally, each State can have for enemies only other States, and not men; for between things disparate in nature there can be no real relation.Furthermore, this principle is in conformity with the established rules of all times and the constant practice of all civilised peoples. Declarations of war are intimations less to powers than to their subjects. The foreigner, whether king, individual, or people, whorobs, kills or detains the subjects, without declaring war on the prince, is not an enemy, but a brigand. Even in real war, a just prince, while laying hands, in the enemy's country, on all that belongs to the public, respects the lives and goods of individuals: he respects rights on which his own are founded. The object of the war being the destruction of the hostile State, the other side has a right to kill its defenders, while they are bearing arms; but as soon as they lay them down and surrender, they cease to be enemies or instruments of the enemy, and become once more merely men, whose life no one has any right to take. Sometimes it is possible to kill the State without killing a single one of its members; and war gives no right which is not necessary to the gaining of its object. These principles are not those of Grotius: they are not based on the authority of poets, but derived from the nature of realityand based on reason.The right of conquest has no foundation other than the right of the strongest. If war does not give the conqueror the right to massacre the conquered peoples, the right to enslave them cannot be based upon a right which does not exist. No one has a right to kill an enemy except when he cannot make him a slave, and the right to enslave him cannot therefore be derived from the right to kill him. It is accordingly an unfair exchange to make him buy at the price of his liberty his life,over which the victor holds no right. Is it not clear that there is a vicious circle in founding the right of life and death on the right of slavery, and the right of slavery on the right of life and death?Even if we assume this terrible right to kill everybody, I maintain that a slave made in war, or a conquered people, is under no obligation to a master, except to obey him as far as he is compelled to do so. By taking an equivalent for his life, the victor has not done him a favour; instead of killing him without profit, he has killed him usefully. So far then is he from acquiring over him any authority in addition to that of force, that the state of war continues to subsist between them: their mutual relation is the effect of it, and the usage of the right of war does not imply a treaty of peace. A convention has indeed been made; but this convention, so far from destroying the state of war, presupposes its continuance.So, from whatever aspect we regard the question, the right of slavery is null and void, not only as being illegitimate, but also because it is absurd and meaningless. The words slave and right contradict each other, and are mutually exclusive. It will always be equally foolish for a man to say to a man or to a people: "I make with you a convention wholly at your expense and wholly to my advantage; I shall keep it as long as I like, and you will keep it as long as I like."5. THAT WE MUST ALWAYS GO BACK TO A FIRST CONVENTIONEven if I granted all that I have been refuting, the friends of despotism would be no better off. There will always be a great difference between subduing a multitude and ruling a society. Even if scattered individuals were successively enslaved by one man, however numerous they might be, I still see no more than a master and his slaves, and certainly not a people and its ruler; I see what may be termed an aggregation, but notan association; there is as yet neither public good nor body politic. The man in question, even if he has enslaved half the world, is still only an individual; his interest, apart from that of others, is still a purely private interest. If this same man comes to die, his empire, after him, remains scattered and without unity, as an oak falls and dissolves into a heap of ashes when the fire has consumed it.A people, says Grotius, can give itself to a king. Then, according to Grotius, a people is a people before it gives itself. The gift is itself a civil act, and implies public deliberation. It would be better, before examining the act by which a people gives itself to a king, to examine that by which it has become a people; for this act, being necessarily prior to the other, is the true foundation of society.Indeed, if there were no prior convention, where, unless the election were unanimous, would be the obligation on the minority to submit to the choice of the majority? How have a hundred men who wish for a master the right to vote on behalf of ten who do not? The law of majority voting isitself something established by convention, and presupposes unanimity, on one occasion at least.附录二(中文译文)第一卷我要探讨在社会秩序之中，从人类的实际情况与法律的可能情况着眼，能不能有某种合法的而又确切的政权规则。
法学外文翻译一教学文稿
法学外文翻译温州姜原文一：Copyright I 2004 Washington UniversityWashington University Global Studies Law Review CRIMINAL LIABILITY FOR LABOR SAFETY VIOLATIONS IN THE PEOPLE’S REPUBLIC OF CHINANAME: John BalzanoSUMMARY:... China’s workers have fallen on hard times. ... One scholar comments that China’s 1994 Labor Law seems to reflect warmer feelings on the part of the Chinese government with regard to civil liability in the context of labor and employment law. ... The tools that one needs to analyze how the criminal law can be used to punish labor safety violations are simply to understand the general provisions of the criminal law on dolus specialis (mens rea), the concept of criminal liability for a corporation or other legal entity, and the actus reus for the specific crimes. ... What emerges from these provisions as cited above is that when a safety accident (1) occurs, (2) results in death, injury, or severe consequences, (3) is due to violations that had already been pointed out by the authorities or the employees of the corporation, and (4) is severe, then criminal liability shall attach for those personnel who are directly (zhijie) responsible for its occurrence. ... In the end, success may depend on the theory chosen, and the willingness of the procurator and judge to allow a negligence theory in a labor safety violation case. ...KEYWORDS: criminal Liability labor safety violationsTEXT:B.IntroductionChina’s workers have fallen on hard times. In the Peoples Republic of China’s (PRC’s) new socialist market economy State-owned enterprises, which currently employ about sixty percent of the urban population, have been forced to lay off workers to compete with the emerging private sector and international conglomerates. China scholars have recently devoted much attention to the sad state of Chinese workers, telling tales of inefficient social insurance and rampant unemployment. Some scholars have found it almost impossible to count the numbers of urban unemployed in the world’s most populous nation. M oreover, to add injury to insult, there are problems inside the factory as well. The Chinese government has come under considerable pressure to deal with the growing number of industrial accidents, resulting deaths, and uncountable labor law violations that plague a nation vigorously trying to conform its laws to WTO standards within the next several years. Indeed, there is a growing realization that Chinafaces a massive challenge in bringing its labor standards up to code for the WTO, especially while trying to make an already failing State sector internationally competitive.Over the past twenty years, China has enacted a number of labor laws and regulations aimed at dealing with labor safety problems. 7 Most importantly, the PRC enacted a labor law in 1994, and since then, the provinces and other assorted jurisdictions have done a considerable amount of legislating at the local level on labor standards and safety. At that time, scholars were optimistic that this profuse labor legislation would work to fix some of the labor issues that have been piling up since the beginning of the reform era in 1978. Unfortunately, China’s workers are not much safer and happier than they were before. This continuing problem leads one to question how effective the Ministry of Labor and Social Security (MOLSS) and the Chinese courts have been at enforcing this growing body of labor and employment law. Also relevant to this discussion, is the question of how many of the labor safety violations in highly industrialized areas are actually uncovered in time to prevent accidents and save lives. The answer, unfortunately, is very few. It seems then that China’s labor law provides for an ineffective system for supervising and deterring production operations from engaging in illegal and unsafe labor practices.In light of the serious deficiencies in the current civil and administrative legal mechanisms available for the enforcement of labor safety violations, this Note will argue that the PRC should strengthen existing criminal penalties and deterrents for violating labor safety laws. More specifically, the Chinese Government must consider refining and more frequently utilizing some of the provisions in the Labor Law and the Criminal Code to bring about a more effective system of criminal enforcement of the labor law, establish more formidable deterrents for managers and workers in enterprises in both the public and private sector, and promote a safe workplace. This Note will argue that this kind of reform should include more defined mens rea requirements, criminal liability for managers in the enterprise or legal entity, and criminal liability for safety violations which create a serious risk, but have not yet caused a serious accident.B.The History of Labor Law in the PRCUntil the enactment of the 1994 Labor Law, the PRC had no comprehensive labor law other than a set of regulations, which were drafted by the then Ministry of Labor within the State Council. In fact, the growth of the concept of labor rights as codified in the 1994 law has been a long time in the making, although the celebration of the worker in Chinese society was important throughout the earlier part of the communist era. Indeed, the establishment of the Chinese Communist Party in the early 1920s century brought a worke r’s movement to life that prevailed throughout the Mao Era. This movement gathered momentum during the Cultural Revolution (1965-1969) when the workers were one of the groups, which were active in many of the new movements (yundong) that tore through Chinese society.Then, with the death of Mao Ze Dong in the late 1970s and the beginning of the reform era under Deng Xiao Ping, the place of workers in the PRC began to fall. Deng’s market reforms brought about a new private sector, which created competition for the enormous, inefficient State enterprises, and the workers were hit from two angles. First, in the private sector labor was no longer protected by the State, or at least not to the same extent that it was under Mao’s command economy. Second, due to changing economic conditions and the growth of a market economy in China, the State sector began to suffer and to lay off workers. Also, workers in the State sector were no longer protected and provided for to the same extent that they were under Mao’s “IronRice Bowl” (datiewan). The gap between the rich and the poor grew fast, and the gap between eastern and western parts of the PRC began to appear more pronounced as well. Thus, as China’s economic situation changed, the workers began to find themselves jobless and subject to new challenges in a more competitive market environment.B. Domestic Labor ReformDeng’s market reforms also brought about a great deal of legal reform. The 1980s saw a considerable amount of lawmaking, which has only increased in the 1990s. With this proliferation of legislation, governmental organs have found themselves with more of a role to play in the policy process. In terms of labor legislation, there has been participation from all levels. The National People’s Congress (NPC) e nacted the Labor Law in 1994, and since then, the Ministry of the Labor and Social Security and the local People’s Congresses have all become involved in supplementing the Labor Law by drafting administrative and procedural regulations. The result of all of this legislation is a seemingly complete system of labor law and enforcement. However, there has been less success in terms of how effective the national and local governments, and administrative agencies have been at implementing this growing body of law and regulations.C. China Joins the World: International Influence on China’s Labor Law ReformsCoupled with domestic support for legal reform is the influence of many of the international organizations that China has joined or will join. Indeed, China has become a much more proactive member of the international community since the beginning of the Deng-era in the late 1980s. Certainly, China’s impending entry into the WTO has had an extraordinary influence over the legislation promulgated in the last ten years. With regard to labor, the influence of the international community, particularly the International Labor Organization (ILO), is quite apparent in the 1994 Labor Law. However, as previously mentioned, the problem is not the amount of legislation, or, for the most part, its substantive content, but rather the effective enforcement of these new laws and regulations.II. Legal Mechanisms for Resolving Disputes and Enforcing Labor LawA. The Civil Law and Dispute ResolutionThe PRC Labor Law provides for the settlement of disputes through one of three ways: mediation, arbitration (zhongcai), and litigation (susong). The last option of litigation, however, is only available after the parties to the labor dispute have gone through the arbitration process. These methods of dispute resolution constitute a mechanism for the worker to seek redress for her grievances, such as contract disputes, through the civil law. One scholar comments that China’s 1994 Labor Law seems to reflect warmer feelings on the part of the Chinese government with regard to civil liability in the context of labor and employment law. The Labor Law does include quite a few civil remedies for workers seeking relief for various problems relating to wages and breach of contract. In actuality, however, little relief has been afforded to workers, who decide to use the civil law to solve their problems. Instead, a worker who sues may not only lose the suit, but may also lose her job or face retribution from her employer.B. Criminal PenaltiesThere are also remedies available under the criminal law for certain more serious violationsof the Labor Law and relevant regulations. Regardless of the provisions of the Labor Law that mention criminal liability, any criminal liability relating to the workplace or the worker is liability completely under the PRC Criminal Law and its provisions. In other words, the Labor Law does not itself criminalize behavior, the criminal law does.There are several provisions in the Criminal Law, which correspond or match directly with similar provisions in the chapter entitled “Legal Liability”in the Labor Law. Indeed, criminal liability may be imposed in the following areas: safety protection, prohibition of child labor, protection of the personal and democratic rights of the laborers (forced labor), and maintaining an adequate inspection system. There is one final requirement for intersections between the Labor Law and the Criminal Law to arise: the circumstances must be especially severe (qingjie yanzhong).The tools that one needs to analyze how the criminal law can be used to punish labor safety violations are simply to understand the general provisions of the criminal law on dolus specialis (mens rea), the concept of criminal liability for a corporation or other legal entity, and the actus reus for the specific crimes. Beginning with the actus reus of labor-related crimes, Articles 134-137 cover labor related accidents under the heading of “Crimes that Infringe on the Public Safety.” The mens rea for most of these crimes is assumedly negligence, and the accident caused must be “severe” (zhongda.) While the personnel directly responsible for the actus reus may be punished with either imprisonment or a fine.What emerges from these provisions as cited above is that when a safety accident (1) occurs, (2) results in death, injury, or severe consequences, (3) is due to violations that had already been pointed out by the authorities or the employees of the corporation, and (4) is severe, then criminal liability shall attach for those personnel who are directly (zhijie) responsible for its occurrence. The provisions do not specifically mention punishing the enterprise itself through a fine or by halting its operations. The punishment for personnel under the circumstances in Articles 134-37 is up to three years in prison, and under particularly severe circumstances, three to seven years in prison. In order to fully analyze this situation under the Criminal Law and make a proposal as to how it should be amended or reinterpreted, it will be necessary to consider each one of these elements separately and then in combination with one another. This methodology will parse out the strengths and weaknesses in the law.III. The Specifics of Criminal Sanctions for Labor Safety ViolationsA. The Accident Must Have Already OccurredThe ffectt of requiring that the accident must occur and must involve some sort of death, injury, or other severe result is that it precludes liability for reckless endangerment of workers or pre-accident cirmcumstances that create a very high degree of risk. Also, if the accident only involves a small or unserious consequence, then, absent some sort of minor criminal sanction (such as a fine), the law may proffer no incentive for a corporation to fix the problem and thereby avoid a larger or more serious accident in the future.B. The Accident Must be Due to Violations Already Pointed OutThis element clearly shows that there must be actual knowledge of the safety violation on the part of those in charge and therefore rules out imputed knowledge. Without the possibility of prosecution for imputed knowledge, managers and personnel will have little incentive to inspectfacilities and unearth latent hazards, except in the case where there are direct orders from the local MOLSS branch. The employees themselves may not have the technical skills necessary to spot a problem and avoid accidents. In addition, MOLSS inspection teams may be short handed and real inspections may not be conducted with regularity. Thus, this requirement that the violation already be pointed out inhibits prosecution and provides no incentive for managers to conduct regular inspections and refrain from negligent behavior.C. The Personnel Directly Responsible Will Assume Criminal LiabilityThe largest problem with this phrase is that it is vague and undefined. The primary issue is whether the law holds the corporation, and thus the personnel responsible, or merely holds the personnel actually directly responsible liable for the damages caused. This debate is prominent in Chinese legal circles, and some scholars have argued vigorously that it should be the corporation and thus the personnel that are held responsible. If it is the corporation that is primarily responsible, then this distinction may open the door for liability higher up the management chain. The major question then becomes: how high up in the chain does the procurator need to go in order to ensure that the personnel with real power correct safety violations. Obviously, there is no one right answer, however there must be a balance between the power to correct the violation and the opportunity and duty of oversight of the workspace. This issue will become more salient when discussing possible amendments to the law.D. Prosecuting Under a Theory of MurderIf there is an accident that causes the deaths of employees, then why can it not be prosecuted under a theory of negligent homicide? It should be noted here that negligent and intentional murder are certainly theories that could be used under the Chinese Criminal Law. If the purpose of connecting criminal law and the labor law is to protect against death or injury then should there not be a reference in the Labor Law that points the procurator towards the provisions in the Criminal Law that deal with murder? This important question is one which will be addressed in the following sections.IV. Proposal for a New Model of Enforcing Labor Safety Laws and RegulationsA. Negligent Homicide1. Mens reaAccording to the PRC Criminal Law, there are only two mental states that may apply to crimes therein: negligent and intentional. However, scholars have argued in favor of limiting the scope of negligent crimes within the Criminal Law, which may create a problem for this analysis because the provisions on safety accidents within the code do not make specific mention of negligence. Thus, in order to apply the provisions in the Criminal Law dealing specifically with safety accidents there might need to be amendments that allow for such crimes to be prosecuted under a theory of negligence. If, however, prosecution were to proceed under a theory of murder, a negligent mental state would be expressly permitted in the provisions of the Criminal Law. In the end, success may depend on the theory chosen, and the willingness of the procurator and judge to allow a negligence theory in a labor safety violation case.Furthermore, in dealing with criminal prosecution for labor safety violations the most appropriate option for mens rea is criminal negligence. Although intentional viIlations of thestandards themselves might be possible, the harm was most likely caused by the negligence of the manager or corporate officer. Proceeding under a theory of negligent homicide, it will be necessary to determine the duty, the breach of that duty, and the causal connection between the act or the omission of the manager or corporate officer and the death or harm to the worker.2. DutyIn western criminal law, negligent homicide will be predicated on some type of duty whether it be statutory, contractual, or familial. The Chinese Criminal Law makes no mention in the negligence provisions of any sort of duty owed to the person harmed or injured. Although negligence itself is not predicated on a breach of duty within the Chinese Criminal Law, this does not mean that there is no duty to workers upon which a theory of negligent homicide might be advanced. The Labor Law expressly states that every worker has a right to a safe workplace. The duty of the employer to provide the employee with a safe work place is further reinforced by the recently promulgated Safe Production Law. Both the Labor Law and the Safe Production Law include provisions which state that if violations of the laws constitute a crime, then criminal liability will be imposed. It seems possible then, if not entirely logical, that a procurator could premise a prosecution for negligent homicide under Article 233 of the Criminal Law on the duty that the employer or employing unit owes to the worker to provide a safe work place under the Labor Law and the Safe Production Law. Because both of these laws are national laws they are controlling under all circumstances pertaining to laborers in the PRC.3 PunishmentThe final question to resolve is: which one of the corporate actors should be held responsible for breaching a duty under the Labor Law and thereby causing an accident and injuries or deaths of workers. Ideally, such provisions would provide an incentive to whomever in that particular enterprise truly has the power to correct the problems that could potentially lead to accidents by directing funds to the m *--anager overseeing the workers or an inspection team. Designing a catchall provision of that nature or manipulating provisions within the pre-existing law to that end is surely not an easy task.B. Reckless EndangermentThe Chinese Criminal Code makes no allowances for prosecution under a theory of reckless endangerment. However, this provision is not unheard of under the criminal law in other countries. This kind of liability will most likely be un-welcomed by Chinese authorities, but criminal liability beyond administrative fines would certainly provide a stronger deterrent for corporate officers and managers to be stricter and more disciplined regarding inspections of the facilities. Any liability for mangers or officers in this context would have to be sought under an amendment to the Chinese Criminal Law.译文一：出自：2004年华盛顿大学华盛顿大学《全球研究法律评论》中华人民共和国的刑事责任劳动安全行为名字：约翰•巴尔扎诺摘要：我国工人正处于困难时期。
国际法律中英文对照外文翻译文献
中英文对照外文翻译文献(文档含英文原文和中文翻译)原文:Evasion of Law and Mandatory Rules in Private International LawINTRODUCTIONIT has often been asserted that English private international law has no doctrine of evasion of the law. It is true that English law has never developed a general doctrine, like the French one of fraude a la hi, to deal with cases of evasion. Nonetheless, evasion of the law has been recognised as a problem in at least some areas of private international law, and an increasing number of specific anti-evasion measures have been introduced in response to this. The English approach towards evasion is a pragmatic one rather than being based on any broad underlying theory. In particular, the fundamental questions have not been addressed of what is wrong with evasion of the law and how it can be dealt with most effectively. The purpose of thisarticle is to examine the present law on evasion, determine what is wrong with evasion of the law and put forward proposals for a principled approach to deal with the problem.I THE PRESENT LAW ON EV ASIONThe most obvious sense in which the law is evaded is when persons deliberately flout the law, for example a taxpayer fails to declare all his income to the Inland Revenue, or a person smuggles goods into a country in breach of import controls. In such cases the party seeking to evade the law wishes no law to apply. The private international lawyer may be concerned with this type of case, for instance the English courts may be asked to enforce a contract the performance of which involves the illegal export of goods.Of more interest to the private international lawyer, and the subject of this article, are those cases where laws are evaded by persons showing a preference for the application of one country's law rather than that of another. People can show this preference by going to another country in the expectation that that country's law will be applied to their affairs. This has happened in the sphere of family law where evasive marriages, divorces and abduction of children are well known. Evasion can also take place in the commercial sphere where the particular method of evasion takes a different form, i.e. contractual agreements that a particular law will apply. Those areas in which evasion has been recognised as being a problem: marriage, divorce, child abduction and custody, and contract, will now be examined in detail, after which some conclusions will be drawn on the nature of the approach towards evasion adopted under the present law.A. Evasive MarriagesEvasive marriages have been a well known phenomenon since the earliest days of conflict of laws. Starting with Brook v. Brook in the middle of the nineteenth century there has been a spate of reported cases involving English couples going to Denmark or Germany to marry in order to evade the English law on the prohibited degrees of marriage. After the marriage the couple would return to live in England. The English courts strongly objected to the attempt to evade English law in these cases and refused to recognise the foreign marriage. The technique for dealing with the evasion was to classify the issue in the case as being one of essential validity and to apply the law of the domicile of the parties, England, to the question of the validity of the foreign marriage. In other words, the courts moulded their private international rule on capacity to enter a marriage to stop evasion of the law. The gradual relaxationin the prohibited degrees under English law has largely meant the end of such instances of evasion. However, it still remains the case that, for example, an uncle will be unable to marry his niece in England but he may be able to do so under some foreign systems of law.Better known to laymen than the Danish marriages cases are the Gretna Green marriage cases.At one time young English couples would elope to Scotland in order to evade the English requirement of parental consent for the marriage of a child between the ages of 16 and 21. Such a child could marry in Scotland without parental consent, there being very much less formality for marriage under Scots law. The reduction of the age of majority to 18 in England has meant that in most cases there is no longer any need for young couples to go to Scotland to enter into a valid marriage. However, the attitude of the English courts towards Gretna Green marriages is instructive and contrasts strongly with their attitude towards the Danish marriages. No objection was made to the parties evading the English requirement of parental consent by going to marry in Scotland and these Scots marriages were recognised as being valid. The issue was classified as one of formal validity and the law of the place of celebration was applied to the marriage, i.e. Scots law. The private international law rule was not moulded to stop evasion.The traffic in evasive marriage was not all one way. There are well known instances of French couples coming to England in order to evade stringent French requirements of parental consent to the marriage of children up to the age of 25. Not surprisingly, in the light of the Gretna Green marriages, these English marriages were regarded as being valid, despite the clear evasion of French law by the parties.B. Evasive DivorcesIn 1868 in Shaw v. Gould Lord Westbury, speaking in the context of a Scots divorce obtained by an English domiciliary said that:No nation can be required to admit that its domiciled subjects may lawfully resort to another country for the purpose of evading the laws under which they live. When they return to the country of their domicile, bringing back with them a foreign judgment so obtained, the tribunals of the domicile are entitled or even bound, to reject such judgment, as having no extra-territorial force or validity.A hundred years later there was considerable judicial concern that, whilst the rules on recognition of foreign divorces should be liberalised and made more flexible, "quickie" divorces obtained abroad after a short period of residence should not be recognised. The technique for achieving this was to introduce at common law a realand substantial connection test as a basis for the recognition of foreign divorces. A petitioner who was merely temporarily in, for example, Nevada when he obtained his divorce, would not be able to satisfy this test and the foreign divorce would not be recognised. The attitude subsequently changed and the Recognition of Divorces and Legal Separations Act 1971 enshrined the Law Commission's philosophy that, if there had been forum shopping, the harm had already been done, and in order to prevent a limping marriage the foreign divorce should still be recognised in England.This still remains the general view to this day. However, there are two specific statutory anti-evasion provisions which constitute exceptions to this general rule. Both provisions are concerned with extra-judicial divorces. There was a concern shown by the judiciary and then by Parliament that parties should not be able to evade the English system of divorces granted by courts and the English law on financial provision on divorce by obtaining in England an extrajudicial divorce. Since 1974 such extra-judicial divorces have therefore been denied recognition. There was then a concern that the particular statutory provision denying recognition to this type of divorce could itself be evaded by English residents going abroad, for example on a day trip to France, to obtain an extra-judicial divorce which, because it would be recognised in their foreign domicile, would be recognised in England. The latest version of the relevant statutory anti-evasion provision seeks to prevent this by denying recognition to extra-judicial divorces obtained, without proceedings, outside the British Islands if either spouse had for a period of one year immediately preceding the institution of the proceedings habitually been resident in the United Kingdom. The latter provision does nothing to prevent an English domiciliary from evading his financial responsibilities to his spouse by obtaining an extra-judicial divorce in the state of his nationality, and then having this recognised in England. However, the Court of Appeal in Chaudhary v. Chaudhary held that, in such circumstances, recognition of the divorce would be contrary to public policy, thereby preventing the evasion.C. Child Abduction and CustodyThe most recent problem of evasion to arise in the family law area involves cases of child abduction and custody. If the parents of a child are in dispute over the custody of a child and the parent who has not been granted custody by the English courts seizes the child and removes it abroad, there is a deliberate flouting of the English law in that the English custody order has been disregarded. This is regarded as a very serious matter and Parliament has intervened to introduce new criminal offencesconcerned with taking a child under the age of 16 out of the jurisdiction without consent. There may also be an element of the errant parent preferring the application of a foreign law in that this parent may seek and obtain a custody order abroad. The problem is essentially one of getting a foreign court to recognise the English custody order or the custody rights (if no order has been made) and return the child to England. There are now international conventions on child abduction and custody, and if the child is removed to a country which is a party to these conventions, that country may be obliged to recognise the English custody order and rights. As far as the United Kingdom is concerned the international conventions were brought into effect by the Child Abduction and Custody Act 1985, which requires English courts to recognise foreign custody orders and rights in certain circumstances.D. Evasive ContractsIn contract cases the judiciary appear on the face of it to have a strong objection to evasion of the law. In theory the requirement laid down in Vita Food Products v. Unus Shipping that the parties' choice of the applicable law must be made in good faith, will stop all cases of evasion of the law. Even if the case involves an issue of formal validity of the contract the bona fides doctrine can still come into play. This contrasts with marriage cases where, as has been seen, the evasion of formal requirements is not objected to. However, in practice the requirement of a bona fide choice does not appear to restrict the parties' freedom to choose the applicable law. There is no reported English case in which the parties' choice has been struck out on this ground. It is important to notice that, although the Vita Foods Case introduced a restriction on party autonomy, this restriction did not apply on the facts of the case and the result was to allow parties to evade the Hague Rules.Much more important than the common law doctrine of bona fides are the specific statutory anti-evasion provisions that have been introduced into the area of contract. The most famous of these is contained in section 27 of the Unfair Contract Terms Act 1977. This section prevents evasion of English law, or the law of any other part of the United Kingdom, by restricting the parties' freedom to choose a foreign law. It provides that the Act and the protection it gives to consumers still has effect if the choice of law appears "to have been imposed wholly or mainly for the purpose of enabling the party imposing it to evade the operation of this Act". The section goes on to provide as an alternative that the Act will apply, despite the parties' choice, if "in the making of the contract one of the parties dealt as consumer, and he was then habitually resident in the United Kingdom, and the essential steps necessary for themaking of the contract were taken there, whether by him or by others on his behalf". The section, more controversially, also prevents parties from evading foreign law. It restricts the right of parties, whose contract has a foreign objective proper law, to choose the law of part of the United Kingdom by providing that, in such a case, certain sections of the Act will not apply as part of the proper law.Another example of a statutory anti-evasion provision is to be found in the Carriage of Goods by Sea Act 1971, implementing the Hague-Visby Rules. Under the old Hague Rules there was a problem of people evading those Rules by the insertion of a choice of law clause in their contract. This gap was closed by the insertion in the Hague-Visby Rules of a new Article X to replace the original Article X in the Hague Rules. This lays down the territorial scope of the new Rules, and is coupled with a provision in the implementing legislation which states that the Rules, as set out in the Schedule to the Carriage of Goods by Sea Act 1971, shall have the force of law. According to the House of Lords in The Hollandia the intention of Parliament was for the new Rules to apply whenever the case comes within Article X, regardless of whether there is a foreign proper law. Their Lordships were concerned to interpret the Act and the Hague-Visby Rules in such a way as to prevent the possibility of their being evaded. As Lord Diplock said:[the Hague-Visby Rules]should be given a purposive rather than a narrow literalistic construction, particularly wherever the adoption of a literalist construction would enable the stated purpose of the international convention, viz., the unification of domestic laws of the contracting states relating to bills of lading, to be evaded by the use of colourable devices that, not being expressly referred to in the rules, are not specifically prohibited.An Ad Hoc ApproachWhat is noticeable about the present law on evasion is that no general principle has been developed to explain why evasion is regarded as objectionable in some cases but not in others. The law seems quite inconsistent, with evasive Gretna Green marriages being regarded as perfectly acceptable but evasive Danish marriages being regarded as beyond the pale. The whole approach towards evasion is essentially an ad hoc one; not only are different types of evasive marriage treated differently, but also evasive marriages are treated in isolation from evasive divorces or evasive contracts. This ad hoc approach extends to the technique for dealing with those cases where evasion is regarded as objectionable. In some cases specific statutory anti-evasionprovisions have been adopted to deal with evasion; in other cases the technique has been to mould common law rules to deal with the problem. The result is that the present law on evasion can be seen to be unduly complex, uncertain and inconsistent.A more principled approach is needed but before this can be developed an answer is required to the fundamental question, which so far has been ignored under English law: what is wrong with evasion of the law?II WHAT IS WRONG WITH EV ASION OF THE LAW?A. Moral GuiltThe term evasion is a loaded one, with connotations of shifty, underhand behaviour. It is easy to fall into the trap of automatically assuming that a desire to evade the law is in itself morally reprehensible. This is what has happened in the area of contract choice of law. The requirement that the choice of the applicable law must be made in good faith concentrates on the motives of the parties, and if these are impure the choice is necessarily regarded as a bad one and to be struck out. Yet there is nothing wrong in principle with parties choosing the law to govern their transactions. Indeed, it is very desirable that they should make such a choice. Party autonomy produces certainty in the law and upholds the expectations of the parties. In some cases this choice may be made on the basis that the application of one law is more convenient than that of another. In other cases the choice may be made on the basis that the content of one law is preferred by the parties to that of another. For example, the parties to an international insurance or shipping contract may choose the law of England to apply, despite the fact that there is no connection with this country, because they regard English law as being well developed in this area. No one would stigmatise this type of conduct. Is it any worse if the parties choose a law to apply because they prefer some specific provisions of that law to that of some other country? What the parties are usually trying to do in such a case is to ensure that a law is applied which provides that their transaction, whether it is a commercial contract or a marriage, is valid. This should not be a cause for concern, nor should it be condemned on the mistaken basis that the parties' motives are impure. Moreover, there is something slightly hypocritical in the judiciary making this type of moral judgment when they themselves are quite prepared to escape from applying a law the content of which is not to their liking by using such devices as public policy and renvoi.Whilst there is nothing wrong with the parties' motives in cases of evasion, this does not mean that the practice is unobjectionable. In some cases the evasion mayinvolve unfairness to someone else; the evasion may even be against the national interest.译文：国际私法中的法律规避和强制性规则引言人们常常说，英国的国际私法学说中没有法律规避原则。
毕业论文外文翻译范例
外文原文(一)Savigny and his Anglo-American Disciple s*M. H. HoeflichFriedrich Carl von Savigny, nobleman, law reformer, champion of the revived German professoriate, and founder of the Historical School of jurisprudence, not only helped to revolutionize the study of law and legal institutions in Germany and in other civil law countries, but also exercised a profound influence on many of the most creative jurists and legal scholars in England and the United States. Nevertheless, tracing the influence of an individual is always a difficult task. It is especially difficult as regards Savigny and the approach to law and legal sources propounded by the Historical School. This difficulty arises, in part, because Savigny was not alone in adopting this approach. Hugo, for instance, espoused quite similar ideas in Germany; George Long echoed many of these concepts in England during the 1850s, and, of course, Sir Henry Sumner Maine also espoused many of these same concepts central to historical jurisprudence in England in the 1860s and 1870s. Thus, when one looks at the doctrinal writings of British and American jurists and legal scholars in the period before 1875, it is often impossible to say with any certainty that a particular idea which sounds very much the sort of thing that might, indeed, have been derived from Savigny's works, was, in fact, so derived. It is possible, nevertheless, to trace much of the influence of Savigny and his legal writings in the United States and in Great Britain during this period with some certainty because so great was his fame and so great was the respect accorded to his published work that explicit references to him and to his work abound in the doctrinal writing of this period, as well as in actual law cases in the courts. Thus, Max Gutzwiller, in his classic study Der einfluss Savignys auf die Entwicklung des International privatrechts, was able to show how Savigny's ideas on conflict of laws influenced such English and American scholars as Story, Phillimore, Burge, and Dicey. Similarly, Andreas Schwarz, in his "Einflusse Deutscher Zivilistik im Auslande," briefly sketched Savigny's influence upon John Austin, Frederick Pollock, and James Bryce. In this article I wish to examine Savigny's influence over a broader spectrum and to draw a picture of his general fame and reputation both in Britain and in the United States as the leading Romanist, legal historian, and German legal academic of his day. The picture of this Anglo-American respect accorded to Savigny and the historical school of jurisprudence which emerges from these sources is fascinating. It sheds light not only upon Savigny’s trans-channel, trans-Atlantic fame, but also upon the extraordinarily*M.H.Hoeflich, Savigny and his Anglo-American Disciples, American Journal of Comparative Law, vol.37, No.1, 1989.cosmopolitan outlook of many of the leading American and English jurists of the time. Of course, when one sets out to trace the influence of a particular individual and his work, it is necessary to demonstrate, if possible, precisely how knowledge of the man and his work was transmitted. In the case of Savigny and his work on Roman law and ideas of historical jurisprudence, there were three principal modes of transmission. First, there was the direct influence he exercised through his contacts with American lawyers and scholars. Second, there was the influence he exercised through his books. Third, there was the influence he exerted indirectly through intermediate scholars and their works. Let us examine each mode separately.I.INFLUENCE OF THE TRANSLATED WORKSWhile American and British interest in German legal scholarship was high in the antebellum period, the number of American and English jurists who could read German fluently was relatively low. Even those who borrowed from the Germans, for instance, Joseph Story, most often had to depend upon translations. It is thus quite important that Savigny’s works were amongst the most frequently translated into English, both in the United States and in Great Britain. His most influential early work, the Vom Beruf unserer Zeitfur Rechtsgeschichte und Gestzgebung, was translated into English by Abraham Hayward and published in London in 1831. Two years earlier the first volume of his History of Roman Law in the Middle Ages was translated by Cathcart and published in Edinburgh. In 1830, as well, a French translation was published at Paris. Sir Erskine Perry's translation of Savigny's Treatise on Possession was published in London in 1848. This was followed by Archibald Brown's epitome of the treatise on possession in 1872 and Rattigan's translation of the second volume of the System as Jural Relations or the Law of Persons in 1884. Guthrie published a translation of the seventh volume of the System as Private International Law at Edinburgh in 1869. Indeed, two English translations were even published in the far flung corners of the British Raj. A translation of the first volume of the System was published by William Holloway at Madras in 1867 and the volume on possession was translated by Kelleher and published at Calcutta in 1888. Thus, the determined English-speaking scholar had ample access to Savigny's works throughout the nineteenth century.Equally important for the dissemination of Savigny's ideas were those books and articles published in English that explained and analyzed his works. A number of these must have played an important role in this process. One of the earliest of these is John Reddie's Historical Notices of the Roman law and of the Progress of its Study in Germany, published at Edinburgh in 1826. Reddie was a noted Scots jurist and held the Gottingen J.U.D. The book, significantly, is dedicated to Gustav Hugo. It is of that genre known as an external history of Roman law-not so much a history of substantive Roman legal doctrine but rather a historyof Roman legal institutions and of the study of Roman law from antiquity through the nineteenth century. It is very much a polemic for the study of Roman law and for the Historical School. It imparts to the reader the excitement of Savigny and his followers about the study of law historically and it is clear that no reader of the work could possibly be left unmoved. It is, in short, the first work of public relations in English on behalf of Savigny and his ideas.Having mentioned Reddie's promotion of Savigny and the Historical School, it is important to understand the level of excitement with which things Roman and especially Roman law were greeted during this period. Many of the finest American jurists were attracted-to use Peter Stein's term-to Roman and Civil law, but attracted in a way that, at times, seems to have been more enthusiastic than intellectual. Similarly, Roman and Civil law excited much interest in Great Britain, as illustrated by the distinctly Roman influence to be found in the work of John Austin. The attraction of Roman and Civil law can be illustrated and best understood, perhaps, in the context of the publicity and excitement in the English-speaking world surrounding the discovery of the only complete manuscript of the classical Roman jurist Gaius' Institutes in Italy in 1816 by the ancient historian and German consul at Rome, B.G. Niebuhr. Niebuhr, the greatest ancient historian of his time, turned to Savigny for help with the Gaius manuscript (indeed, it was Savigny who recognized the manuscript for what it was) and, almost immediately, the books and journals-not just law journals by any means-were filled with accounts of the discovery, its importance to legal historical studies, and, of course, what it said. For instance, the second volume of the American Jurist contains a long article on the civil law by the scholarly Boston lawyer and classicist, John Pickering. The first quarter of the article is a gushing account of the discovery and first publication of the Gaius manuscript and a paean to Niebuhr and Savigny for their role in this. Similarly, in an article published in the London Law Magazine in 1829 on the civil law, the author contemptuously refers to a certain professor who continued to tell his students that the text of Gaius' Institutes was lost for all time. What could better show his ignorance of all things legal and literary than to be unaware of Niebuhr's great discovery?Another example of this reaction to the discovery of the Gaius palimpsest is to be found in David Irving's Introduction to the Study of the Civil Law. This volume is also more a history of Roman legal scholarship and sources than a study of substantive Roman law. Its pages are filled with references to Savigny's Geschichte and its approach clearly reflects the influence of the Historical School. Indeed, Irving speaks of Savigny's work as "one of the most remarkable productions of the age." He must have been truly impressed with German scholarship and must also have been able to convince the Faculty of Advocates, forwhom he was librarian, of the worth of German scholarship, for in 1820 the Faculty sent him to Gottingen so that he might study their law libraries. Irving devotes several pages of his elementary textbook on Roman law to the praise of the "remarkable" discovery of the Gaius palimpsest. He traces the discovery of the text by Niebuhr and Savigny in language that would have befitted an adventure tale. He elaborates on the various labors required to produce a new edition of the text and was particularly impressed by the use of a then new chemical process to make the under text of the palimpsest visible. He speaks of the reception of the new text as being greeted with "ardor and exultation" strong words for those who spend their lives amidst the "musty tomes" of the Roman law.This excitement over the Verona Gaius is really rather strange. Much of the substance of the Gaius text was already known to legal historians and civil lawyers from its incorporation into Justinian's Institutes and so, from a substantive legal perspective, the find was not crucial. The Gaius did provide new information on Roman procedural rules and it did also provide additional information for those scholars attempting to reconstruct pre-Justinianic Roman law. Nevertheless, these contributions alone seem hardly able to justify the excitement the discovery caused. Instead, I think that the Verona Gaius discovery simply hit a chord in the literary and legal community much the same as did the discovery of the Rosetta Stone or of Schliemann’s Troy. Here was a monument of a great civilization brought newly to light and able to be read for the first time in millenia. And just as the Rosetta Stone helped to establish the modern discipline of Egyptology and Schliemann's discoveries assured the development of classical archaeology as a modern academic discipline, the discovery of the Verona Gaius added to the attraction Roman law held for scholars and for lawyers, even amongst those who were not Romanists by profession. Ancillary to this, the discovery and publication of the Gaius manuscript also added to the fame of the two principals involved in the discovery, Niebuhr and Savigny. What this meant in the English-speaking world is that even those who could not or did not wish to read Savigny's technical works knew of him as one of the discoverers of the Gaius text. This fame itself may well have helped in spreading Savigny's legal and philosophical ideas, for, I would suggest, the Gaius "connection" may well have disposed people to read other of Savigny's writings, unconnected to the Gaius, because they were already familiar with his name.Another example of an English-speaking promoter of Savigny is Luther Stearns Cushing, a noted Boston lawyer who lectured on Roman law at the Harvard Law School in 1848-49 and again in 1851- 1852.Cushing published his lectures at Boston in 1854 under the title An Introduction to the Study of Roman Law. He devoted a full chapter to a description of the historical school and to the controversy betweenSavigny and Thibaut over codification. While Cushing attempted to portray fairly the arguments of both sides, he left no doubt as to his preference for Savigny's approach:The labors of the historical school have established an entirely new and distinct era in the study of the Roman jurisprudence; and though these writers cannot be said to have thrown their predecessors into the shade, it seems to be generally admitted, that almost every branch of the Roman law has received some important modification at their hands, and that a knowledge of their writings, to some extent, at least, is essentially necessary to its acquisition.译文(一)萨维尼和他的英美信徒们*M·H·豪弗里奇弗雷德里奇·卡尔·冯·萨维尼出身贵族，是一位出色的法律改革家，也是一位倡导重建德国教授协会的拥护者，还是历史法学派的创建人之一。
法学毕业论文法学外文翻译中英文对照
英文原文：Hｏw Ｒeal Ｉs Chｉna’s Real Estate Bubｂle And ＷhaｔShｏｕld Be Done ａｂｏut ＩtThinｋ U.S. houｓｉｎg priceｓ havｅｇone beｒserk？Ｔry ｔho ｓe in Ｓｈanｇhai aｎd Ｂeijing， where the cost oｆｈoｍeｓ has ｂeeｎ rｉsing an ｅstｉmaｔｅd 25％ａnnually in ｒecent yeaｒs。
Th ａｔ’ｓｔwｉce tｈｅ jｕmｐ in ｔｈe median sale pｒicｅｏf ｅxisti ｎg Ｕ。
S. homes oｖer tｈe pａｓt ｙear, ａnd a sｉｇn ｔhａｔＣh ｉna’ｓ real ｅｓtate mａrｋet iｓ in ｔｈｅ mｉdst oｆｗｈａt ｓome ｏbsｅrveｒs vｉew as ａ potentially exｐlosiｖe ｂubblｅ.The ｂubｂle is ｒoｏted iｎsuｃh fａctｏrs ａｓ Chｉｎa's ｓtrong ecｏnomic growｔh ｓincｅ 1990 and ｉnｖestor ｂets ｔhat Cｈｉｎa’s curreｎcy， the yuaｎ， will ｂe revalｕed uｐwarｄ in tｈe near ｆｕtｕre. Buｔ such spｅculaｔion is heｌｐing push the ｐｒicｅ of homes beyond tｈｅｒｅach of miｄdｌe ｃlaｓs ｃiｔizenｓ in key Ｃhinｅsｅ ciｔｉes and raｉｓinｇ the prospect oｆａｓudｄen marｋet collapｓｅthaｔ could ｔhrｅａten tｈｅｃountrｙ's shａky bank ｉｎg seｃtor aｎd wiｐe out tｈｅｌife ｓaｖｉｎｇs of manｙｆａmilieｓ。
法学 毕业论文 文献 外文 英文 翻译
附件一：英文文献INTRODUCTIONOffences of strict liability are those crimes which do not require mens rea with regard to at least one or more elements of the actus reus. The defendant need not have intended or known about that circumstance or consequence. Liability is said to be strict with regard to that element. For a good example see:R v Prince[1875]：The defendant ran off with an under-age girl. He was charged with an offence of taking a girl under the age of 16 out of the possession of her parents contrary to s55 of the Offences Against the Person Act 1861. The defendant knew that the girl was in the custody her father but he believed on reasonable grounds that the girl was aged 18. It was held that knowledge that the girl was under the age of 16 was not required in order to establish the offence. It was sufficient to show that the defendant intended to take the girl out of the possession of her father.It is only in extreme and rare cases where no mens rea is required for liability, thereby making the particular offence "absolute".GENERAL PRINCIPLESThe vast majority of strict liability crimes are statutory offences. However, statutes do not state explicitly that a particular offence is one of strict liability. Where a statute uses terms such as "knowingly" or "recklessly" then the offence being created is one that requires mens rea. Alternatively, it may make it clear that an offence of strict liability is being created. In many cases it will be a matter for the courts to interpret the statute and decide whether mens rea is required or not. What factors are taken into account by the courts when assessing whether or not an offence falls into the category of strict liability offences?THE MODERN CRITERIAIn Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong [1984], the Privy Council considered the scope and role of strict liability offences in the modern criminal law and their effect upon the "presumption of mens rea". Lord Scarman laid down the criteria upon which a court should decide whether or not it is appropriate to impose strict liability: "In their Lordships' opinion, the law … may be stated in the following propositions … : (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is "truly criminal" in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."(1) PRESUMPTION OF MENS REACourts usually begin with the presumption in favor of mens rea, seeing the well-known statement by Wright J in Sherras v De Rutzen：There is a presumption that mens rea, or evil intention, or knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered(2) GRAVITY OF PUNISHMENTAs a general rule, the more serious the criminal offence created by statute, the less likely the courts is to view it as an offence of strict liability. See:Sweet v Parsley [1970]：The defendant was a landlady of a house let to tenants. She retained one room in the house for herself and visited occasionally to collect the rent and letters. While she was absent the police searched the house and found cannabis. The defendant was convicted under s5 of the Dangerous Drugs Act 1965, of "being concerned in the management of premises used for the smoking of cannabis". She appealed alleging that she had no knowledge of the circumstances and indeed could not expect reasonably to have had such knowledge.The House of Lords,quashing her conviction, held that it had to be proved that the defendant had intended the house to be used for drug-taking, since the statute in question created a serious, or "truly criminal" offence, conviction for which would have grave consequences for the defendant. Lord Reid stated that "a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma". And equally important, "the press in this country are vigilant to expose injustice, and every manifestly unjust conviction made known to the public tends to injure the body politic [people of a nation] by undermining public confidence in the justice of the law and of its administration."Lord Reid went on to point out that in any event it was impractical to impose absolute liability for an offence of this nature, as those who were responsible for letting properties could not possibly be expected to know everything that their tenants were doing.(3) WORDING OF THE STATUTEIn determining whether the presumption in favor of mens rea is to be displaced, the courts are required to have reference to the whole statute in which the offence appears. See:Cundy v Le Cocq (1884) ：The defendant was convicted of unlawfully selling alcohol to an intoxicated person, contrary to s13 of the Licensing Act 1872. On appeal, the defendant contended that he had been unaware of the customer's drunkenness and thus should be acquitted. The Divisional Court interpreted s13 as creating an offence of strict liability since it was itself silent as to mens rea, whereas other offences under the same Act expressly required proof of knowledge on the part of the defendant. It was held that it was not necessary to consider whether the defendant knew, or had means of knowing, or could with ordinary care have detected that the person served was drunk. If he served a drink to a person who was in fact drunk, he was guilty. Stephen J stated: Here, as I have already pointed out, the object of this part of the Act is to prevent the sale of intoxicating liquor to drunken persons, and it is perfectly natural to carry that out by throwing on the publican the responsibility of determining whether the person supplied comes within that category.(4) ISSUES OF SOCIAL CONCERNSee :R v Blake (1996) :Investigation officers heard an unlicensed radio station broadcast and traced it to a flat where the defendant was discovered alone standing in front of the record decks, still playing music and wearing a set of headphones. Though the defendant admitted that he knewhe was using the equipment, he claimed that he believed he was making demonstration tapes and did not know he was transmitting. The defendant was convicted of using wireless telegraphy equipment without a license, contrary to s1 (1) Wireless Telegraphy Act 1949 and appealed on the basis that the offence required mens rea.The Court of Appeal held that the offence was an absolute (actually a strict) liability offence. The Court applied Lord Scarman's principles in Gammon and found that, though the presumption in favor of mens rea was strong because the offence carried a sentence of imprisonment and was, therefore, "truly criminal", yet the offence dealt with issues of serious social concern in the interests of public safety (namely, frequent unlicensed broadcasts on frequencies used by emergency services) and the imposition of strict liability encouraged greater vigilance in setting up careful checks to avoid committing the offence.(5) IS THERE ANY PURPOSE IN IMPOSING STRICT LIABILITY?The courts will be reluctant to construe a statute as imposing strict liability upon a defendant, where there is evidence to suggest that despite his having taken all reasonable steps, he cannot avoid the commission of an offence. See:Sherras v De Rutzen [1895]: The defendant was convicted of selling alcohol to a police officer whilst on duty, contrary to s16(2) of the Licensing Act 1872. He had reasonably believed the constable to be off duty as he had removed his arm-band, which was the acknowledged method of signifying off duty. The Divisional Court held that the conviction should be quashed, despite the absence from s16 (2) of any words requiring proof of mens rea as an element of the offence. Wright J expressed the view that the presumption in favor of mens rea would only be displaced by the wording of the statute itself, or its subject matter. In this case the latter factor was significant, in that no amount of reasonable care by the defendant would have prevented the offence from being committed. Wright J stated: "It is plain that if guilty knowledge is not necessary, no care on the part of the publican could save him from a conviction under section 16, subsection (2), since it would be as easy for the constable to deny that he was on duty when asked, or to produce a forged permission from his superior officer, as to remove his armlet before entering the public house. I am, therefore, of opinion that this conviction ought to be quashed."MODERN EXAMPLESThe following case is a modern example of the imposition of strict liability: Alphacell v Woodward [1972] The defendants were charged with causing polluted matter to enter a river contrary to s2 of the Rivers (Prevention of Pollution) Act 1951. The river had in fact been polluted because a pipe connected to the defendant's factory had been blocked, and the defendants had not been negligent. The House of Lords nevertheless held that the defendants were liable. Lord Salmon stated: If this appeal succeeded and it were held to be the law that no conviction be obtained under the 1951 Act unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred to the relief of many riparian factory owners. As a result, many rivers which are now filthy would become filthier still and many rivers which are now clean would lose their cleanliness. The legislature no doubt recognized that as a matter of public policy this would be most unfortunate. Hence s2(1)(a) which encourages riparian factory owners not only to take reasonable steps to prevent pollution but to do everything possible to ensure that they do not cause it.ARGUMENTS FOR STRICT LIABILITY1. The primary function of the courts is the prevention of forbidden acts. What acts should be regarded as forbidden? Surely only such acts as we can assert ought not to have been done. Some of the judges who upheld the conviction of Prince did so on the ground that men should be deterred from taking girls out of the possession of their parents, whatever the girl's age. This reasoning can hardly be applied to many modern offences of strict liability. We do not wish to deter people from driving cars, being concerned in the management of premises, financing hire purchase transactions or canning peas. These acts, if done with all proper care, are not such acts as the law should seek to prevent.2. Another argument that is frequently advanced in favor of strict liability is that, without it, many guilty people would escape - that there is neither time nor personnel available to litigate the culpability of each particular infraction. T his argument assumes that it is possible to deal with these cases without deciding whether D had mens rea or not, whether he was negligent or not. Certainly D may be convicted without deciding these questions, but how can he be sentenced? Suppose that a butcher sells some meat which is unfit for human consumption. Clearly the court will deal differently with (i) the butcher who knew that the meat was tainted; (ii) the butcher who did not know, but ought to have known; and (iii) the butcher who did not know and had no means of finding out. Sentence can hardly be imposed without deciding into which category the convicted person falls.3. The argument which is probably most frequently advanced by the courts for imposing strict liability is that it is necessary to do so in the interests of the public. Now it may be conceded that in many of the instances where strict liability has been imposed, the public does need protection against negligence and, assuming that the threat of punishment can make the potential harm doer more careful, there may be a valid ground for imposing liability for negligence as well as where there is mens rea. This is a plausible argument in favor of strict liability if there were no middle way between mens rea and strict liability - that is liability for negligence - and the judges have generally proceeded on the basis that there is no such middle way. Liability for negligence has rarely been spelled out of a statute except where, as in driving without due care, it is explicitly required. Lord Devlin has said: "It is not easy to find a way of construing a statute apparently expressed in terms of absolute liability so as to produce the requirement of negligence."ARGUMENTS AGAINST STRICT LIABILITY1. The case against strict liability, then, is, first, that it is unnecessary. It results in the conviction of persons who have behaved impeccably and who should not be required to alter their conduct in any way.2. Secondly, that it is unjust. Even if an absolute discharge can be given D may feel rightly aggrieved at having been formally convicted of an offence for which he bore no responsibility. Moreover, a conviction may have far-reaching consequences outside the courts, so that it is no answer to say that only a nominal penalty is imposed.3. The imposition of liability for negligence would in fact meet the arguments of most of those who favor strict liability. Such statutes are not meant to punish the vicious will but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals." The "thoughtless and inefficient" are, of course, the negligent. The objection tooffences of strict liability is not that these persons are penalized, but that others who are completely innocent are also liable to conviction. Though Lord Devlin was skeptical about the possibility of introducing the criterion of negligence (above), in Reynolds v Austin (1951) he stated that strict liability should only apply when there is something that the defendant can do to promote the observance of the law - which comes close to requiring negligence. If there were something which D could do to prevent the commission of the crime and which he failed to do, he might generally be said to have failed to comply with a duty - perhaps a high duty - of care; and so have been negligent.4. In Alphacell v Woodward (1972) Lord Salmon thought the relevant statutory section, "encourages riparian factory owners not only to take reasonable steps to prevent pollution but to do everything possible to ensure that they do not cause it." This suggests that, however vast the expenditure involved, and however unreasonable it may be in relation to the risk, D is under a duty to take all possible steps. Yet it may be doubted whether factory owners will in fact do more than is reasonable; and it is questionable whether they ought to be required to do so, at the risk - even though it be unlikely - of imprisonment. The contrary argument is that the existence of strict liability does induce organizations to aim at higher and higher standards.POSSIBLE DEVELOPMENTSThere are several possible compromises between mens rea and strict liability in regulatory offences. A "halfway house" has developed in Australia. The effect of Australian cases is: D might be convicted without proof of any mens rea by the Crown; but acquitted if he proved on a balance of probabilities that he lacked mens rea and was not negligent; ie, that he had an honest and reasonable belief in a state of facts which, would have made his act innocent. The onus of proving reasonable mistake is on D.STATUTORY DEFENCESIt is common for the drastic effect of a statute imposing strict liability to be mitigated by the provision of a statutory defense. It is instructive to consider one example. Various offences relating to the treatment and sale of food are enacted by the first twenty sections of the Food Safety Act 1990. Many, if not all, of these are strict liability offences. Section 21(1), however, provides that it shall be a defense for the person charged with any of the offences to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control. Statutory defenses usually impose on the defendant a burden of proving that he had no mens rea and that he took all reasonable precautions and exercised all due diligence to avoid the commission of an offence. The effect of such provisions is that the prosecution need do no more than prove that the accused did the prohibited act and it is then for him to establish, if he can, that he did it innocently. Such provisions are a distinct advance on unmitigated strict liability.附件二：英文文献翻译介绍严格责任犯罪是关于客观方面的一个或多个因素不要求犯罪意图的那些犯罪。
外文翻译原文和译文
中国计量学院现代科技学院毕业设计（论文）外文翻译学生姓名：XXX 学号：专业：法学班级：外文题目：Evasion of Law and Mandatory Rules in Private International Law 指导老师：系：人文与法学2013年月日外文文献原文Evasion of Law and Mandatory Rules in Private International LawJ.J. FAWCETTCambridge Law Journal, 1990, 49(1):44-62Source: Cambridge Journals，INTRODUCTIONIT has often been asserted that English private international law has no doctrine of evasion of the law. It is true that English law has never developed a general doctrine, like the French one of fraude a la hi, to deal with cases of evasion. Nonetheless, evasion of the law has been recognised as a problem in at least some areas of private international law, and an increasing number of specific anti-evasion measures have been introduced in response to this. The English approach towards evasion is a pragmatic one rather than being based on any broad underlying theory. In particular, the fundamental questions have not been addressed of what is wrong with evasion of the law and how it can be dealt with most effectively. The purpose of this article is to examine the present law on evasion, determine what is wrong with evasion of the law and put forward proposals for a principled approach to deal with the problem.I THE PRESENT LAW ON EV ASIONThe most obvious sense in which the law is evaded is when persons deliberately flout the law, for example a taxpayer fails to declare all his income to the Inland Revenue, or a person smuggles goods into a country in breach of import controls. In such cases the party seeking to evade the law wishes no law to apply. The private international lawyer may be concerned with this type of case, for instance the English courts may be asked to enforce a contract the performance of which involves the illegal export of goods.Of more interest to the private international lawyer, and the subject of this article, are those cases where laws are evaded by persons showing a preference for the application of one country's law rather than that of another. People can show this preference by going to another country in the expectation that that country's law will be applied to their affairs. This has happened in the sphere of family law where evasive marriages, divorces and abduction of children are wellknown. Evasion can also take place in the commercial sphere where the particular method of evasion takes a different form, i.e. contractual agreements that a particular law will apply. Those areas in which evasion has been recognised as being a problem: marriage, divorce, child abduction and custody, and contract, will now be examined in detail, after which some conclusions will be drawn on the nature of the approach towards evasion adopted under the present law.A. Evasive MarriagesEvasive marriages have been a well known phenomenon since the earliest days of conflict of laws. Starting with Brook v. Brook in the middle of the nineteenth century there has been a spate of reported cases involving English couples going to Denmark or Germany to marry in order to evade the English law on the prohibited degrees of marriage. After the marriage the couple would return to live in England. The English courts strongly objected to the attempt to evade English law in these cases and refused to recognise the foreign marriage. The technique for dealing with the evasion was to classify the issue in the case as being one of essential validity and to apply the law of the domicile of the parties, England, to the question of the validity of the foreign marriage. In other words, the courts moulded their private international rule on capacity to enter a marriage to stop evasion of the law. The gradual relaxation in the prohibited degrees under English law has largely meant the end of such instances of evasion. However, it still remains the case that, for example, an uncle will be unable to marry his niece in England but he may be able to do so under some foreign systems of law.Better known to laymen than the Danish marriages cases are the Gretna Green marriage cases.At one time young English couples would elope to Scotland in order to evade the English requirement of parental consent for the marriage of a child between the ages of 16 and 21. Such a child could marry in Scotland without parental consent, there being very much less formality for marriage under Scots law. The reduction of the age of majority to 18 in England has meant that in most cases there is no longer any need for young couples to go to Scotland to enter into a valid marriage. However, the attitude of the English courts towards Gretna Green marriages is instructive and contrasts strongly with their attitude towards the Danish marriages. No objection was made to the parties evading the English requirement of parental consent by going to marry in Scotland and these Scots marriages were recognised as being valid. The issue was classified as one of formal validity and the law of the place of celebration was applied to the marriage, i.e. Scots law. The private international law rule was notmoulded to stop evasion.The traffic in evasive marriage was not all one way. There are well known instances of French couples coming to England in order to evade stringent French requirements of parental consent to the marriage of children up to the age of 25. Not surprisingly, in the light of the Gretna Green marriages, these English marriages were regarded as being valid, despite the clear evasion of French law by the parties.B. Evasive DivorcesIn 1868 in Shaw v. Gould Lord Westbury, speaking in the context of a Scots divorce obtained by an English domiciliary said that:No nation can be required to admit that its domiciled subjects may lawfully resort to another country for the purpose of evading the laws under which they live. When they return to the country of their domicile, bringing back with them a foreign judgment so obtained, the tribunals of the domicile are entitled or even bound, to reject such judgment, as having no extra-territorial force or validity.A hundred years later there was considerable judicial concern that, whilst the rules on recognition of foreign divorces should be liberalised and made more flexible, "quickie" divorces obtained abroad after a short period of residence should not be recognised. The technique for achieving this was to introduce at common law a real and substantial connection test as a basis for the recognition of foreign divorces. A petitioner who was merely temporarily in, for example, Nevada when he obtained his divorce, would not be able to satisfy this test and the foreign divorce would not be recognised. The attitude subsequently changed and the Recognition of Divorces and Legal Separations Act 1971 enshrined the Law Commission's philosophy that, if there had been forum shopping, the harm had already been done, and in order to prevent a limping marriage the foreign divorce should still be recognised in England.This still remains the general view to this day. However, there are two specific statutory anti-evasion provisions which constitute exceptions to this general rule. Both provisions are concerned with extra-judicial divorces. There was a concern shown by the judiciary and then by Parliament that parties should not be able to evade the English system of divorces granted by courts and the English law on financial provision on divorce by obtaining in England an extrajudicial divorce. Since 1974 such extra-judicial divorces have therefore been denied recognition. There was then a concern that the particular statutory provision denying recognition to this type of divorce could itself be evaded by English residents going abroad, for example on a day trip to France, to obtain an extra-judicial divorce which, because it would berecognised in their foreign domicile, would be recognised in England. The latest version of the relevant statutory anti-evasion provision seeks to prevent this by denying recognition to extra-judicial divorces obtained, without proceedings, outside the British Islands if either spouse had for a period of one year immediately preceding the institution of the proceedings habitually been resident in the United Kingdom. The latter provision does nothing to prevent an English domiciliary from evading his financial responsibilities to his spouse by obtaining an extra-judicial divorce in the state of his nationality, and then having this recognised in England. However, the Court of Appeal in Chaudhary v. Chaudhary held that, in such circumstances, recognition of the divorce would be contrary to public policy, thereby preventing the evasion.C. Child Abduction and CustodyThe most recent problem of evasion to arise in the family law area involves cases of child abduction and custody. If the parents of a child are in dispute over the custody of a child and the parent who has not been granted custody by the English courts seizes the child and removes it abroad, there is a deliberate flouting of the English law in that the English custody order has been disregarded. This is regarded as a very serious matter and Parliament has intervened to introduce new criminal offences concerned with taking a child under the age of 16 out of the jurisdiction without consent. There may also be an element of the errant parent preferring the application of a foreign law in that this parent may seek and obtain a custody order abroad. The problem is essentially one of getting a foreign court to recognise the English custody order or the custody rights (if no order has been made) and return the child to England. There are now international conventions on child abduction and custody, and if the child is removed to a country which is a party to these conventions, that country may be obliged to recognise the English custody order and rights. As far as the United Kingdom is concerned the international conventions were brought into effect by the Child Abduction and Custody Act 1985, which requires English courts to recognise foreign custody orders and rights in certain circumstances.D. Evasive ContractsIn contract cases the judiciary appear on the face of it to have a strong objection to evasion of the law. In theory the requirement laid down in Vita Food Products v. Unus Shipping that the parties' choice of the applicable law must be made in good faith, will stop all cases of evasion of the law. Even if the case involves an issue of formal validity of the contract the bona fides doctrine can still come into play. Thiscontrasts with marriage cases where, as has been seen, the evasion of formal requirements is not objected to. However, in practice the requirement of a bona fide choice does not appear to restrict the parties' freedom to choose the applicable law. There is no reported English case in which the parties' choice has been struck out on this ground. It is important to notice that, although the Vita Foods Case introduced a restriction on party autonomy, this restriction did not apply on the facts of the case and the result was to allow parties to evade the Hague Rules.Much more important than the common law doctrine of bona fides are the specific statutory anti-evasion provisions that have been introduced into the area of contract. The most famous of these is contained in section 27 of the Unfair Contract Terms Act 1977. This section prevents evasion of English law, or the law of any other part of the United Kingdom, by restricting the parties' freedom to choose a foreign law. It provides that the Act and the protection it gives to consumers still has effect if the choice of law appears "to have been imposed wholly or mainly for the purpose of enabling the party imposing it to evade the operation of this Act". The section goes on to provide as an alternative that the Act will apply, despite the parties' choice, if "in the making of the contract one of the parties dealt as consumer, and he was then habitually resident in the United Kingdom, and the essential steps necessary for the making of the contract were taken there, whether by him or by others on his behalf". The section, more controversially, also prevents parties from evading foreign law. It restricts the right of parties, whose contract has a foreign objective proper law, to choose the law of part of the United Kingdom by providing that, in such a case, certain sections of the Act will not apply as part of the proper law.Another example of a statutory anti-evasion provision is to be found in the Carriage of Goods by Sea Act 1971, implementing the Hague-Visby Rules. Under the old Hague Rules there was a problem of people evading those Rules by the insertion of a choice of law clause in their contract. This gap was closed by the insertion in the Hague-Visby Rules of a new Article X to replace the original Article X in the Hague Rules. This lays down the territorial scope of the new Rules, and is coupled with a provision in the implementing legislation which states that the Rules, as set out in the Schedule to the Carriage of Goods by Sea Act 1971, shall have the force of law. According to the House of Lords in The Hollandia the intention of Parliament was for the new Rules to apply whenever the case comes within Article X, regardless of whether there is a foreign proper law. Their Lordships were concerned to interpret the Act and the Hague-Visby Rules in such a way as to prevent the possibility of theirbeing evaded. As Lord Diplock said:[the Hague-Visby Rules]should be given a purposive rather than a narrow literalistic construction, particularly wherever the adoption of a literalist construction would enable the stated purpose of the international convention, viz., the unification of domestic laws of the contracting states relating to bills of lading, to be evaded by the use of colourable devices that, not being expressly referred to in the rules, are not specifically prohibited.An Ad Hoc ApproachWhat is noticeable about the present law on evasion is that no general principle has been developed to explain why evasion is regarded as objectionable in some cases but not in others. The law seems quite inconsistent, with evasive Gretna Green marriages being regarded as perfectly acceptable but evasive Danish marriages being regarded as beyond the pale. The whole approach towards evasion is essentially an ad hoc one; not only are different types of evasive marriage treated differently, but also evasive marriages are treated in isolation from evasive divorces or evasive contracts. This ad hoc approach extends to the technique for dealing with those cases where evasion is regarded as objectionable. In some cases specific statutory anti-evasion provisions have been adopted to deal with evasion; in other cases the technique has been to mould common law rules to deal with the problem. The result is that the present law on evasion can be seen to be unduly complex, uncertain and inconsistent.A more principled approach is needed but before this can be developed an answer is required to the fundamental question, which so far has been ignored under English law: what is wrong with evasion of the law?II WHAT IS WRONG WITH EV ASION OF THE LAW?A. Moral GuiltThe term evasion is a loaded one, with connotations of shifty, underhand behaviour. It is easy to fall into the trap of automatically assuming that a desire to evade the law is in itself morally reprehensible. This is what has happened in the area of contract choice of law. The requirement that the choice of the applicable law must be made in good faith concentrates on the motives of the parties, and if these are impure the choice is necessarily regarded as a bad one and to be struck out. Yet there is nothing wrong in principle with parties choosing the law to govern their transactions. Indeed, it is very desirable that they should make such a choice. Partyautonomy produces certainty in the law and upholds the expectations of the parties. In some cases this choice may be made on the basis that the application of one law is more convenient than that of another. In other cases the choice may be made on the basis that the content of one law is preferred by the parties to that of another. For example, the parties to an international insurance or shipping contract may choose the law of England to apply, despite the fact that there is no connection with this country, because they regard English law as being well developed in this area. No one would stigmatise this type of conduct. Is it any worse if the parties choose a law to apply because they prefer some specific provisions of that law to that of some other country? What the parties are usually trying to do in such a case is to ensure that a law is applied which provides that their transaction, whether it is a commercial contract or a marriage, is valid. This should not be a cause for concern, nor should it be condemned on the mistaken basis that the parties' motives are impure. Moreover, there is something slightly hypocritical in the judiciary making this type of moral judgment when they themselves are quite prepared to escape from applying a law the content of which is not to their liking by using such devices as public policy and renvoi.Whilst there is nothing wrong with the parties' motives in cases of evasion, this does not mean that the practice is unobjectionable. In some cases the evasion may involve unfairness to someone else; the evasion may even be against the national interest.外文文献译稿国际私法中的法律规避和强制性规则J.J.福西特剑桥法律期刊，1990，49(1)：44-62．来源：剑桥期刊网，引言人们常常说，英国的国际私法学说中没有法律规避原则。
法学英语论文
THE PRESUMPTION OF INNOCENCEAbstract:The law provides that a person may not be convicted of a crime unless his guilt is proved beyond a doubt. The accused has no obligation to present evidence to prove his innocence. No inference of guilt may be drawn from the mere fact of indictment. Evidence supporting the indictment must be presented at trial, and the judgment of the court must be based on that evidence alone. The court may not “assume” that the accused is guilty.Keywords:presumption innocence the accused obligationI say that our criminal law really does contain the doctrine of presumption of innocence. To take up the argument first:it is based primarily on the role of the procuracy in the law,and on the identification of the presumption of innocence with an actual belief in the innocence of the accused.The procuracy not only prosecutes criminals in court but is also in charge of the preliminary investigation of crimes,conducted by so-called investigators,leading to indictment;in addition,the procuracy is charged with general supervision of legality,performing what in the United States has come to be called an “ombudsman”function.It is the “watchdog of legality” and is supposed to be impartial even in criminal prosecutions.The investigator is not supposed to indict and the procurator is not supposed to prosecute unless,after an objective examination of all the circumstances of the case,they fully believe in the guilt of the accused comes to trial he is “presumed” to be innocent? On the con tary,he is “presumed” by the procurator to be guilty, and the judge has formed no “presumption” one way or the other.This reasoning prevailed in the late 1950s in the decision to omit from the All-Union Fundamental Principles of Criminal Procedure and from the Republican codes any express reference to the pre-sumption of innocence. Instead, the draftsmen spelled out what is generally meant by the presumption of innocence in Continental European legal systems. while at the same time preserving the right and duty of the procurator to prosecute only those whom he fully believes to be guilty.However not only the prosecutor in a criminal case, but the court as well, has the “Obligation of proof,” which is defined as the obligation “to take all measures provided by law for a thorough, complete, and objective analysis of the circumstances of the case, and to expose circum-stances tending both to convict and to acquit the accused, as well as those tending to aggravate and mitigate his guilt.”①If one were to follow Gorgone in identifying the obligation” of proof that rests on the Soviet prosecutor with a “burden” of proof as that term is under-stood in English and American law, then one would have to con-clude, first, that the Soviet court also has the burden of proof—which would be an absurd statement; the courts, to be sure, use bothphrases. They refer only infrequently however to the burden of proo usually in its Latin form and occasionally in Russian trans-lation, Soviet legislation does speak of “ob ligation of roof . However not only the prosecutor in a criminal case, but the court as well, has the “O bligation of proof,” which is defined as the obligation “to take all measures provided by law for through, complete, and objective analysis of the circumstances of the case, and to expose circum-stances tending both to convict and to acquit the accused, as well as those tending to aggravate and mitigate his guilt.” ②If one were to follow Gorgone in identifying the“obligation” of proof that rests on the Soviet prosecutor with a “burden” of proof as that term is under stood in English and American law, then one would have to con-clude, first, that the Soviet court also has the burden of proof—which would be an absurd statement. This provision is identical with art. 14 of the Fundamental Principles of Criminal Procedure of the USSR. “the court, procurator, investigator, and persons conducting the inquiry shall not have the right to shift the obligation of proof to the accused,”Unlike English and American law, though like French, German, and other Continental European legal systems, Soviet law does not cast upon the prosecutor the risk of an acquittal if he fails to present certain evidence or if the evidence that he presents is not convinc ing,°but instead permits—indeed, requires—the court, as well, to conduct the case against the accused. Indeed, as Dr. Gorgone points out, many, perhaps most, criminal trials in the USSR are conducted in the absence of the prosecuton and where the prosecutor appears and in the course of the trial ceases to be convinced of the guilt of the accused, and therefore withdraws, the court must continue to judg- ment and may convict.8 The possibility of a trial and a conviction despite the prosecutor’s withdrawal from the case is a sufficient rea-son, though not the only reason, why it cannot be said that Soviet law contains the presumption of innocence in the American (or English) sense.In one sense it may be said that the Soviet prosecutor does bear the risk of an acquittal if the court is not convinced of the guilt of the accused. Howeer this is not a procedural risk, since the court may be convinced of guilt even if all the evidence produced by the prosecution is disbelieved, or even if the prosecution withdraws that the prosecution is not a person but a document, namely the indictment that has been drafted by the investigator, approved by the procurator, and issued by an administrative session of a court. No authority is cited for this con-cept. At first blush it seems strange—like something out of Gogol.— to suppose that the burden of proof could be borne by a piece of pa- per. It may seem less strange however, under Soviet criminal proce-dure, where the trial proceeds systematically on the basis of the “Ilk of the case”. The question remains, nevertheless: is it possible? Soviet indictments, to be sure, like those in other coun-tries of Western Europe, include transcripts of the preliminary in-terrogation of the accused and ofwitnesses, reports of views of the scene of the crime, and all other evidence on which the prosecution is based. This fact gives some force to Gorgone’s remark that “incence, the incriminatory evidence is, technically speaking, brought forward the moment a court acce pts the case for trial,” Yet suppose that at trial a witness states that itwas he, and not the accused, who committed the crime, and that this testimony was not in the me of the ease but was elicited for the first time in response to questions by defense counsel; and suppose the procurator believes the witness and withdraws from the case, while the court continues to conduct the proceedings, not knowing whether to believe the witness or not. Who (or what) has the b ur den of proof that the witness’s statement was false? that he was not cally correct and, on the other might be interpreted as only expres. sing the legal platitude that the court should not convict a person on the basis of mere suspicion.The point is that our borrowing has lost its strangeness because we have been using it for many centuries. As used in Eng- lish and American law, a presumption is not an “assumption” or a “presupposition,” as Dr. Gorgone seems to think. Nor is it a hypoth- esis. It is not a “cognitive posture” of the judge. It is not “the judge’s personal assumption or presupposition that the accused is innocent until the opposite is proven.”From the standpoint not of English and American law, but of Soviet law, Gorgone’s argument is stronger, and is supported by the writings of some Soviet jurists. Others, however, including some who are ardent advocates of the presumption, disagree that the judge is required by the presumption to form an assumption or pre-supposition, or adopt a hypothesis, or take a cognitive posture, to the effect that the accused is in fact innocent Soviet legislation seems to me to be quite clear on the point: the judge is to be impar-tial, free of factual preconceptions concerning guilt or innocence, equally open to evidence on both sides. But he is only to convict if legal terms “presumption” and “presumed” except by a borrowing from Latin. The point is that our borrowing has lost its strangeness because we have been using it for many centuries. As used in Eng-lish and American law, a presumption is not an “assumption” or a “presupposition,” as Dr. Gorgone seems to think. Nor is it a hypoth- esis. I t is not a “cognitive posture” of the judge.It is not “the judge’s personal assumption or presupposition that the accused is innocent until the opposite is proven.”From the standpoint not of English and American law, but of Soviet law, Gorgone’s argument is stronger, and is supported by the writings of some Soviet jurists. Others, however, including some who are ardent advocates of the presumption, disagree that the judge is required by the presumption to form an assumption or pre-supposition, or adopt a hypothesis, or take a cognitive posture, to the effect that the accused is in fact innocent Soviet legislation seems to me to be quite clear on thepoint: the judge is to be impar-tial, free of factual preconceptions concerning guilt or innocence, equally open to evidence on both sides.Unoubtedly these political and conceptual issues are there, and Gorgone has performed an important service in bringing them to light once again.He may also be right—here I have more doubts— in complaining that not enough attention has been paid in the American literature to the debate on criminal procedure between Soviet “liberals” and Soviet “conservatives.” It is not as clear to me as it is to him that stronger formulations of the presumption of inno-cence, for example, would lead to a reduction in the power or even a change in the role of the procuracy. His statement that “virtually any high official of the USSR procuracy” must be included among the “conservatives” who are opposed to the presumption of inno-cence—is contradicted by the fact that high officials of the USSR procuracy have come out strongly in favor of the presumption of innocence.I suspect it lies in the direction of strengthening the integrity of the procuracy. which may involve increasing its power and role. Also, while the continued strengthening of the adversarialhistorically from English law—to the leading role of the judge in the presentation of evidence.Do these views justify Dr. Gorgone’s categorization of me as a “supporter” of the Soviet “conservatives”? Is it proper to say that “Berman upholds the inquisitorial conception of Soviet procedure” or that “Berman joins the conservatives” in arguing that under So viet law “it is impossible to say that the prosecution holds the bur den of proof’? Such statements confuse the role of an interpreter of a foreign legal system with that of a participant in the shaping of that system. Conceivably, the interpreter from abroad may have some influence on the foreign system, and in any event he has some responsibilities to it and for it, but those responsibilities require that he not allow politics to interfere with his scholarship.As a postscript, I return to the question whether the Soviet doc-trine of presumption of innocence meets the standards of those Western European countries whose systems of criminal procedure, like the Soviet, have rested primarily on impartial preliminary in- vestigation and the so-called inquisitorial role of the judge at the trial stage, and which therefore place less emphasis on the procedu- ral aspects of the presumption.Is it proper to say that “Berman upholds the inquisitorial conception of Soviet procedure” or that “Berman joins the conservatives” in arguing that under So viet law “it is impossible to say that the prosecution holds the bur-den of proof’? Such statements confuse the role of an interpreter of a foreign legal system with that of a participant in the shaping of that system.Conceivably, the interpreter from abroad may have some influence on the foreign system, and in any event he has some responsibilities to it and for it, but those responsibilities require that he not allow politics to interfere with his scholarship.As a postscript, I return to the question whether the Soviet doc- trine of presumption of innocence meets the standards of those Western European countries whose systems of criminal procedure, like the Soviet, have rested primarily on impartial preliminary in- vestigation and the so-called inquisitorial role of the judge at the trial stage, and which therefore place less emphasis on the procedu- ral aspects of the presumption.For the Soviet Union, the scope of the presumption of innocence at the pretrial stage is perhaps the most acute aspect of the ques-tion. It bears on the severe limitations placed by Soviet law on the iright nto counseql during the preliminary invesytigation . It bears on the conditions of such detention. It bears on such demeaning practices as the shaving of the prisoner’s head and the posting of armed guards on both sides of him during trial.This aspect of the presumption of innocence has been seriously neglected both in the society.References[1]RSFSR Code of Criminal Procedure, art 20. This provision is identical with art. 14 of the Fundamental Principles of Criminal Procedure of the USSR.[2]para. 2 of art.14 of the Fundamental P inciples of the USSR.。
法学毕业论文之外文翻译
浙江工业大学毕业论文外文资料翻译学院(系):法学院专业：09法学二专姓名：XXX学号：200809300XXX外文出处：1、《Frontiers of Law in China》2010,52、《Center for Comparative Literature and Cultural Studies MonashUniversity Melbourne》附件： 1.外文资料翻译译文；2.外文原文附件1：外文资料翻译译文一死刑听证制问题研究YUguan yang摘要：死刑主要用于对最严重的罪犯的惩治。
给这些案子举行公众听证制似乎是保证司法公正性的最佳方式。
死刑案的公众听证制在维护司法公正性和保障人的权利有着重大的意义，并且早已获得国内外的关注。
本文将解释美国相关死刑听证制机构的条件，从权利和义务角度定义公众听证制的性质，分析死刑公众听证制的特殊内涵，介绍外国的一些死刑听证制的案例，并且分析当前中国对于死刑公众听证制的实行，并通过一些建议实现对听证制的推进。
关键词：死刑案，公众听证制，国际标准，中国的实践死刑案听证制必须严格遵守犯罪公正性的国际标准，尤其是与美国相关的公众听证制。
公众听证制包括公开审判和公开宣判，两者都包括几个方面。
作者想分享一些与联合国相关文件死刑案公开审判和宣判的理解。
1,公众听证制的意义和要求1.1,公众听证制在权利和义务方面的基本原理公众听证制包括公开审判和公开宣判。
公开审判是指法庭上的一系列活动，比如调查证人，调查案件事实，双方证据交换等。
公开审判的核心是对审判活动的处理，由当场公开起诉、辩护陈述、询问证人、核查证据和法庭最后陈词组成。
在形式上，公开审判有两个要求：首先，包括案件名称、起诉罪名、被告人身份、法庭审判的时间地点和出庭人员在内的信息必须提前公布；其次，必须为公众的旁听提供足够的便利，任何人都应当被允许参加旁听，而记者也应被允许对审判进行报道。
公开审判的参加人员不能被限制于某一特定类型；但是法律法规指定的例外，比如法庭审议，任何想要参加旁听的人都不能被拒绝；所有的法庭活动，尤其是询问证人和检验证据都应该公开进行。
法学专业 外文翻译 外文文献 英文文献 从中国反垄断立法看行政垄断的法律规制
Legal Regulation of Administrative Monopoly As Viewed fromChinese Antimonopoly LawLing WangLaw school of Shandong University of TechnologyZibo 255049, Shandong, ChinaAbstractThe administrative monopoly breaks the principle of justice, and has large harm to the society. The special chapter in Chinese Antimonopoly Law regulates the contents and corresponding legal responsibilities of administrative monopoly, but the law still has some deficiencies. The Chinese Antimonopoly Law should be perfected from increasing the operation property, confirming the comprehensive legal responsibilities, confirming the law enforcement agency of anti-administrative monopoly, expanding the range of legal regulation and establishing the judicial review system.Keywords: Chinese Antimonopoly Law, Administrative monopoly, RegulationIn china, the administrative monopoly mainly means the behaviors that administrative subjects harm the market competition and destroy socialism market economy order by the administrative power. The administrative monopoly initially belongs to economic monopoly, and its harm is more than economic monopoly, and it destroys the principle of justice, and induces the occurrence of unfair competition and monopoly in special market, and it harms the benefits of most market subjects, and largely wastes effective resources, and blocks the establishment and perfection of the socialism market competition mechanism. Therefore, it should seek solution and regulation methods from various approaches for the administrative monopoly. Only in this way, the obstacle of Chinese economic system reform and the development of market economy can be removed, which can promote the quick development of economy, enhance the living level of people, improve the total survival environment, and realize the harmony and stability of the society.1. Regulation of administrative monopoly in Chinese Antimonopoly LawFor the regulation of administrative monopoly, there are many researches and discussions among Chinese scholars, and the system reform view and the legal regulation view are representative views. The system reform view thinks that the administrative monopoly is the product of system, and it can be completely solved by deepening the economic system reform and the political system reform, and the legal measure is hard to solve the problem of administrative monopoly. The central content of the legal regulation view is that the administrative monopoly is very harmful, and it must be forbidden mainly bythe laws. The legal regulation view is also can be divided into two factions, and one is to mainly use the administrative law to regulate the administrative monopoly, and the other thinks that Chinese Antimonopoly Law is the main power to regulate the administrative monopoly.Because Chinese economic and political system reform is a gradual process which needs quite long-term endeavors, and this transfer needs large patient and willpower, so the administrative monopoly has been a very hot potato at present, and it has seriously blocked the economic development of China with large social harms, and it even blocks the economic and political system reforms which is being in China, so it must be forbidden as soon as possible, or else, the large destroying function on the development of Chinese economy will be hard to image. Therefore, it is too ideal to only depend on the system reform to regulate the administrative monopoly, and the effect is not obvious. In the present national situation, law is the feasible measure to regulate the administrative monopoly. Because the administrative monopoly roots in economic monopoly and has many characters and harms of economic monopoly, more and more legal scholars want to utilize Chinese Antimonopoly Law to regulate the administrative monopoly. “It is the characteristic of Chinese Antimonopoly Law to take the administrative monopoly as the control object of antimonopoly, and it seems a necessary selection according to the national situation, because the administrative monopoly forming in traditional planned economy system is impossible to be removed by administrative measure, and it can only be solved by the legal measure, i.e. the Antimonopoly Law (Zhang, 1993, P.357)”.At August 1 of 2008, Chinese Antimonopoly Law became effective in people’s expectations, and the fifth chapter specially regulates the content of administrative monopoly, and the articles from 32 to 37 respectively generalize the elimination of administrative power abuse and the behaviors of competition limitation, and completely regulate the concrete represent form of administrative monopoly, and article 51 regulates corresponding legalresponsibilities. Thus，the regulation of administrative monopoly is first regulated in law, andthe legal approach is the main measure to govern the administrative monopoly, which indicated that the legal regulation view had been adopted finally. The contents of administrative monopoly in the Antimonopoly Law embodies the advancement of Chinese legal theory study and legislation technology, and it showed the decision of Chinese legislators to standardize the enforcement of administrative power and stop the abuse of administrative power. Of course, law is only one most important measure to regulate the administrative monopoly, and the reasonable and effective reforms in polity and economy also have very important meanings for the regulation of administrative monopoly behaviors.2. Deficiencies of administrative monopoly regulation in Chinese Antimonopoly LawRelative regulations about administrative monopoly in Chinese Antimonopoly Law are active and helpful exploration to regulate administrative monopoly behaviors by law, and corresponding legal regulations are deeply meaningful and influencing to eliminate the bad influences of administrative monopoly, promote the fair competition, establish normal market order, and guarantee the ordered development of market economy. However, whether relative corresponding systems or the articles in the chapter 5 still have some deficiencies, and the anti-administrative monopoly much still remains to be done.2.1 Regulations are too fundamental to operateThe articles in the chapter 5 of Chinese Antimonopoly Law are some principled articles lacking in operation, which make the judiciary and law enforcement agencies are difficult to distinguish. And many abstract concepts such as what extent can achieve administrative monopoly, and what is that the abuse of administrative power to block the free circulation of commodities can not be defined clearly in only five legal articles, so the catchwords ofanti-administrative monopoly appear incapable. At August 1 of 2008, the first day when Chinese Antimonopoly Law was implemented, Chinese State Administration of Quality Supervision, Inspection and Quarantine encountered the first case about Chinese Antimonopoly Law. However, in the expectation of ten thousands of people, this case came to an untimely end, and though the court adopted the article that the limitation of actions was over to evade this case, but it can be supposed that if the court can not evade it by relative reasons, what is the result? Was the behavior that Chinese State Administration of Quality Supervision forced to push the electric supervision code business of Citic Guoan Information Technology Co., Ltd with its own shares in 69 kinds of product an administrative monopoly behavior? The result might reach the same goal by different routes. And relative regulations about the current antimonopoly law endow law-officers too much discretion to make them to “go after profits and avoid disadvantages”.2.2 The regulations about the legal responsibility of administrative monopoly are deficientChinese Antimonopoly Law regulates the civil, administrative and criminal responsibilities assumed by managers who implement monopoly behaviors in detail, but for the legal responsibility of the behaviors of administrative monopoly, only the article 51 of Chinese Antimonopoly Law regulates that “If administrative power by government and organizations to which laws and regulations grant rights to administer public issues abuse administrative power, to eliminate or restrict competition, shall be ordered by superior authorities to correct themselves; people in direct charge and people directly involved shall be imposed administrative punishment. The antimonopoly execution authorities shall supply suggestion to related superior authorities to handle according to law.” Many administrative responsibilities such as “shall be ordered by superior authorities to correct themselves; people in direct cha rge and people directly involved shall be imposed administrative punishment” form different legal results of different subjects to implement monopoly behaviors, so peoplebegin to suspect the justice of laws, which virtually helps the administrative subjects to implement administrative monopoly, and the deterrent force will be reduced largely. At the same time, though the responsibility of Chinese Antimonopoly Law is too lighter and becomes a mere formality, and the law is not obeyed and strictly enforced, so the administrative monopoly remains incessant after repeated prohibition.2.3 The jurisdiction of antimonopoly law enforcement institution is limitedThe definition about the anti-administrative monopoly law enforcement agency in the fifty first article of Chinese Antimonopoly Law is still blurry, and on the one hand, the supervision procedures should be independently established to restrain laws by this law, and on the other hand, the law regulates that the administrative monopoly should be dominated by superior authorities, and the article that “If administrative power by government and organizations to which laws and regulations grant rights to administer public issues abuse administrative power, to eliminate or restrict competition will be handled by another regulation, shall be applied to another regulation” has left large space for the rights of relative departments and supervision institutions, which has eliminated the jurisdiction ofanti-administrative monopoly law enforcement agent to the administrative monopoly. At the same time, it is not reasonable to handle the behaviors of administrative monopoly by the superior authority of lawbreaker for the legal responsibilities. The superior authority is not a specific authority, because the authorities implementing administrative monopoly are different, and the law enforcement has be decomposed to various functional authorities, which will easily induce repeat law enforcements or blank law enforcement. Furthermore, the superior authority is not the authority to specially dominate administrative monopoly, or the special judicial authority, and it just is common law enforcement authority (Wang, 2007). Staffs in superior authority may not have strong antimonopoly consciousness, and both the cognition and treatment result all lack in authorities, and they also lack in the ability to teat the cases about administrative monopoly.2.4 The range of administrative monopoly regulation is too narrowThe article 33 of Chinese Antimonopoly Law limits the object of administrative monopoly in the domain of goods trade. “Administrative power by government and organizations to which laws and regulations grant rights to administer public issues shall not abuse administrative power to carry out following conducts, to hinder the free flow of the commodities between regions”. In fact, the character of the transfer of modern economic industry structure is that the proportion of the service industry is enhanced increasingly, and if the object of the anti-administrative monopoly is only limited in the domain of goods trade, the domain which is bigger and occupies more proportion will be abandoned out of the supervision of Chinese Antimonopoly Law. Though the article 34 forbids and excludes that exterior managers participate in local bid invitation and bidding activities, and the article 35 forbids and excludes that exterior managers invest or establish branches including the domainof service trade in local region, but there are many items in the service industry out of these two ranges, and the legal regulation about administrative monopoly behaviors in the domain of service industry is still blank in Chinese Antimonopoly Law.2.5 Regulation measures for abstract administrative monopoly are deficientThough Chinese Antimonopoly Law has prohibitive regulations about the behaviors of abstract administrative monopoly, but it regulates nothing about legal responsibility and relief ways. If the illegal behavior of abstract administration can not be redressed in time in practice, it will always induce larger harm (Huang, 2001). Many administrative monopoly behaviors in practice are implemented by the mode of abstract administrative monopoly behavior, and even certain concrete administrative monopoly behavior is always done according to administrative rules, but these rules must be examined and approved, recorded or agreed by superior people’s governments or charge authorities, and when they are dissented, the judgment right is always in original authorities which will be hard to deny the rules and byelaws what they constituted. In addition, most countries adopt the judicial review system to treat the abstract administrative behavior by the mode of inefficacy or nonexistence, but this system in Chinese Antimonopoly Law is deficient, so the illegal behaviors of administrative subject is hard to be redressed.3. Perfection of administrative monopoly regulation in Chinese Antimonopoly LawAbove aspects about the legal regulation for the administrative monopoly in Chinese Antimonopoly Law all need to be perfected and simple opinions are offered as follows.3.1 Using foreign mature experiences as references and increasing the operation feature of Chinese Antimonopoly LawLaw enforcement should be executed according to laws, and that means the clear description of legal concepts is the premise to exactly enforce laws, and the specific description of legal rules is the base to enforce laws strictly, but the problems about administrative monopoly in Chinese Antimonopoly are very complex, and some legal concepts have not been defined, and detailed legal standards and concrete legal responsibility should be further confirmed. Therefore, the content of the chapter 5 in Chinese Antimonopoly Law can be regarded as the principled legal rules to regulate administrative monopoly, and the explanation of general principles is a complex and hard task, just as when US modified the Antimonopoly Law, it added the word of “efficiency judgment”, and the American Competition Bureau used 13000 words to explain it. It is necessary to explain the criterion of general rules, and only to constitute suited rules as soon as possibly, and explain the principled articles in detail, the operation character of Chinese Antimonopoly Law can be added, and the uniform law enforcement standards can be established to effectively regulate the administrative monopoly behaviors by law.3.2 Establishing various administrative monopoly legal responsibility systemsThe past laws in China only regulated administrative monopoly by administrative responsibility, but ignored the function of civil responsibility and criminal responsibility. To more effectively regulate administrative monopoly, the particularity of administrative monopoly should be considered fully, and constitute comprehensive legal responsibilities including administrative responsibility, civil responsibility and criminal responsibility. When maintaining special competitors’ benefits, the behavior of administrative monopoly harms other competitors’ competition right at the same time, and it belongs to a kind of tort, and it should assume corresponding civil responsibility, and though the administrative responsibility includes the system of administrative compensation, but the range of administrative compensation is limited. And to better protect relative parties’ legal rights, Chinese Antimonopoly Law should specially regulate that victims of administrative monopoly have rights to institute civil actions, and obtain corresponding civil damages. At the same time, the behavior of administrative monopoly has large social harm, and it should be adjusted by the criminal law when it seriously harms the society, and furthermore, the social harm extent achieved by administrative monopoly is far bigger than some economic crimes and occupational crimes regulated in current criminal laws, so the measure of criminal punishment is necessary to be adopted.3.3 Confirming independent antimonopoly law enforcement institutions and perfect the law enforcement systemThe legal construction in China is to solve practical problems in the final analysis, and the setup of antimonopoly law enforcement institution is not exceptional. The antimonopoly law enforcement institution should be highly independent. To keep the independent is the life line of antimonopoly law enforcement institution, and the meaning of antimonopoly law, that is also the successful experience to effectively execute antimonopoly laws in most countries. And antimonopoly law enforcement institution must have high specialty character, and the antimonopoly law enforcement is not simple market management, and it comes down to the contents about economy, law and management, so it is a complex project. Professional organization system is the important factor to guarantee the effective operation of law enforcement institution.Independent and professional antimonopoly institution should be endowed by extensive administrative power, quasi-legislative power and quasi-judicial power, and that is the need to regulate administrative monopoly in China and the requirement to treat the development of international antimonopoly.3.4 Combining the generalization mode with the listing mode to specially limit the range of administrative monopolyBecause Chinese Antimonopoly Law defines the range of administrative monopoly by the listing mode, and it is mainly limited in the domain of goods trade, which induces that the regulation range of administrative monopoly in China is too narrow and lacks incorresponding flexibility. Using foreign relative experiences as references, China should adopt the mode combining the generalization mode with the listing mode to define the range of administrative monopoly.On the one hand, the main representative form of administrative monopoly should be listed specially, and the concrete regulations to regulate administrative monopoly behaviors in the domain of servicing industry should be added. And according to these rules, the antimonopoly law enforcement institutions should quickly judge representative administrative monopoly behaviors, and predict its legal result and increase the efficiency. On the other hand, according to relative authority data, the range of the industry about the national economy and the people’s livelihood should be specially defined, and the monopoly of these indu stries should be protected by laws, and the protective range and degree should also be defined, and for the behavior to illegally expand the monopoly range, corresponding punishment measures should be regulated.Through above analysis, the legal regulation of administrative monopoly behaviors in China just starts, and the relative rules about the administrative monopoly behaviors in Chinese Antimonopoly Law needs to be further perfected and crystallized, and the legal responsibilities about the administrative monopoly behaviors and the jurisdiction of law enforcement institution need to be further confirmed, and the regulation range of administration monopoly needs to be further expanded, and corresponding juridical relief approaches need to be gradually established. At the same time , the system reforms in the economic and political domain need to be further deepened, and the continual perfection of system reform can essentially reduce and stop the happening of administrative monopoly behaviors, and both the system reform and the legal regulation need to be strengthened, which is the essential way to solve the problem of administrative monopoly.从中国反垄断立法看行政垄断的法律规制Ling Wang山东科技大学法学院摘要：行政垄断打破了公正原则，并且具有较大的社会危害性。
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附录Revolution of Chinese Occupational Health Legal Protection Mechanisms Based on the Concept of InnovationJinke TanEast China University of Political Science and Law, Shanghai, China 201620 Keywords: Workers, Occupational Health, Occupational SafetyAbstract. Occupational Health Act hermeneutics development affects its law policy design direction. Therefore, the law of Chinese worker occupational health protection needs to be wary of some cognitive bias and its potential directional bias. It is imperati ve to abandon the “unitary view”with which people take occupational health protection equivalent to the skeletal muscle and other health protection; and “big occupational safety concept” which focuses on occupational safety but ignore occupational health a nd “occupational disease-oriented view” which narrows the occupational health governance as a statutory occupational disease prevention, reducing the risk management objects; toward “triadic” occupational health protection which are social well-adapted on the aspects of occupational physical health, mental health and occupation; to unify the Occupational Safety and Health Occupational Health and Safety legislation to promote good governance synergies; and establish the concept of occupational health risk management, strengthen early warning and prevention and the priority of control, and come into the whole process of comprehensive occupational health and disaster management.Legal protection concept adaptation based on new cognition of occupational health By the definition of occupational health and management of related concepts connotation,occupational health concept has been clear: occupational health of workers is a complete body physiology, steady and good mental state and social well-adapted stable state. Occupational Health has the following characteristics: it includes the physical, psychological and social aspects; it is dynamic, along with the development of social development; occupational Health and occupational Safety are dialectical unity, and occupational health protection is risk-oriented, rather than confined to statutory occupational disease. This understanding is corresponding to the inherent nature of occupational health compliance requirements, leading the legal protection of occupational health and adaptation.1 Protection from physical health to “physical, psychological and social adaptation good”three-dimensional health protection With economic globalization, increasing competition, rapid technological innovation, China labor environment has undergone major changes. Workers face more physical, psychological and social risks and hazards, and new occupational injuries continuously emerge, so the traditional occupational Health Act has been difficult to adapt to the real needs. Therefore, the future occupational safety law should go beyond the traditional emphasis on security to protect the health of the shackles, and promote physical health, mental health, and social adaptability:To establish the concept of the work environment right. Working environment right does not just refer to the health of workers rights protection, also includes a workplace mental health and social adaptability good protection,in order to achieve the highest standards of health and comfort of the psychological environment for legislative purposes, which is a new realm of the development of occupational health protection. Sweden has modified the previous workers protection law into worker environment rights law, Norway also specially formulated workplace rights law. Infrastructure development of occupational health and safety law should move towards “physical - social –psychological” protection, focusing on the protection of the work environment right.Legislation establishment of “physical - social –p sychological” occupational health protection mode. In the future, we need to modify the definition of occupational diseases in the second article of “Occupational Disease Prevention Law”, whose causative factors are no longer confined to the dust, radiation, toxic substances and other harmful substances, but also include social pressure and other risk factors. Secondly, it is recommended that workers’ mental illness due to work stress should be included in the List of Occupational Diseases within the scope of compensation into the work injury insurance, and the most important and urgent is the need to include post-traumatic stress disorder (as mentioned in the case of two diseases ) and depression after injury. In this way,we can beyond the traditional limitations of physical health protection, emphasize the overall health and safety of the working environment and reduce occupational injury risk, thus achieving the goal of health promotion.Improve the specific implementation mechanisms. We need to strengthen labor inspection regulations, mental health assessment, risk communication psychology, psychological counseling and other content right (force) obligation mechanism, clear the responsibility attribution and reporting time ofspecification of occupational injuries, and actively implement duty and obligation of the employing unit labor psychological occupational health, self-protection management and security education and training aspects, and carry out a plan to promote planned, positive, persistent workplace mental health promotion programs to prevent and control mental illness. Secondly, we must pay attention to the rehabilitation of injured workers reconstruction, not only to promote the rehabilitation of workers with mental illness, but also stress the social rehabilitation and vocational rehabilitation. Through the establishment of vocational rehabilitation assessment and accountability,not only make the injured worker get timely and effective treatment, but also protect the workers to have the institutional support to want to re-employment or to maintain existing job or return to work to overcome old related disorders support to ensure their adaptation in social life.2 From heavy Occupational Safety and light Occupational Health to systematize and good governanceLatent, occult and complexity of Occupational health risks decide the professional of occupational health protection, while the Occupational Safety and Health have a close link, we need to emphasize systematize and good governance. Currently the legal protection of occupational health system with Occupational Disease Prevention Law as the core and the Occupational Safety and legal protection system with “Production Safety Law” as the core architecture the dividing and conquering situation of the Chinese occupational health and occupational safety. In the specific regulation, because China occupational health regulatory mechanisms has experienced the labor department responsibility system in the early founding period of this country,the health health administrative department system in 1998, the health sector and production safety supervision department “cohabitation” system in 2003, and the newly revised “Occupational Disease Prevention Law” which takes the production sector regulatory regime in 2011. Through many of the shifting alliances, it has formed a production safety supervision and management departments, health administrative departments of labor and social security administrative departments at the core of“concerted efforts” but the “bulls dispersed” situation.Therefore, there are serious “fragmentation” governance orientation in the occupational health protection on the internal mechanisms of occupational safety and occupational health and protection of the relationship: (1) institutional fragmentation: legal protection of occupational health hazards institutional design is lack of coordination, and even have conflicts and contradictory, such as too much emphasis on complement compensation (pay) and neglect prevention and break institutional balance; (2) regulatory powers and resource allocation fragmentation: for example, the safety supervision departments have no professional independent department to undertake occupational health, and health department has no enforcement authority, and various regulatory bodies manage are segmentation and lack coordination; (3) the fragmentation of the system during operation:occupational health protection processes are broken, rigid, heavy compensation (pay) and light prevention and rehabilitation, the process of mutual is segmented and so forth.In order to achieve the purpose of protection of occupational health, we must recognize the relationship between occupational safety and occupational health rightly. As the futurist AlvinToffler said, “To re-integrate the right bigideas, as well as on the general theory of the fractional part into the overall return.” “Faced with occupational health management with the global issues,”you first need to emphasize the dialectical unity of occupatio nal health and occupational safety systems, break the current legislation of both decentralized, functional partitioning, regulatory discrete situation, and formulate a unified “Occupational Health and Safety Act” to integrate the existing “occupational Disease Prevention Law” and “production Safety Law”. Second, we should improve the integration of occupational safety and health regulatory model, and establish a relatively independent occupational health sub-supervision and law enforcement agencies, and the lead in establishing occupational health sector regulation coordination mechanisms to promote occupational health and safety protection for joint development.3 A whole process of governance from a passive response to prevention and control of priorityOccupational health protection risk-oriented philosophy requires the awareness of the risks of new occupational hazards, analyze and evaluate and put them into control objects. On the other hand, it is no longer limited to the statutory occupational pr otection, “making the workplace healthier eyes of governance move from risk attributes of the work itself to a variety of risk factors associated with workplace.” A full range of occupational health hazards governance model is not only adopted for traditional occupational diseases, but also for multistory diseases and the “work-related disease”and other general risk prevention, such as emerging technologies product Nan particle materials.Ideal regulatory mechanisms need to prevent and control occupational health management from the source to the early prevention and control in theprocess of labor protection, manage occupational hazards consequence, to clear responsibility in the formation of occupational therapy rehabilitation, and manage the integration powerfully, seamless regulation (see below figure), but China occupational health prevention and control regulatory mechanisms is still far to reach this goal. Although many scholars proposed to improvement suggestions about occupational health supervision dispersed, overlapping functions, un-standardized regulatory agencies settings, the lack of definitive measures, but in context of the continuous occupational health disaster, this“government regulation dependence” reform path does not eradicate the dilemma of occupational health protection.Occupational health laws should govern toward a mode of government regulation guidance, market coordination and the main power: optimal allocation of government supervision and monitoring of the management of rights, to mobilize the enthusiasm of the employer initiative,enrich and strengthen the rights of workers’ occupational health, the formation of “internal controls” and “external monitor” interactive coordination of occupational health promotion approach.This requires: the first is to form system “cooperation”: including occupational health hazard reporting, evaluation system; “three simultaneous” system; occupational hazards assessment system; standardization system; occupational health surveillance system; education and training system; prevention and control of industrial injury insurance system, etc. institutional system. The second is to improve the implementation of the safeguard mechanism: It is necessary to take the health administration department of the core regulatory body, other departments cooperate to improve the supervisionand coordination mechanism, to adopt a linkage, consolidated supervision model. In the Central, the Minister of Health and the State Administration of Work Safety Secretary can be regarded as convener, and in the local co-ordination by all levels of government, the Secretary of Health and Safety Authority Secretary can be regarded as the convener, making formation of normalization and legalization of“responsible government, departmental interaction” regulatory coordination mechanisms. Followed,we should arise the employer’s positive initiative, propose system of the difference between rates of injury insurance mechanism for the prevention and control of occupational health hazards good performance the employer had a lower rate, and vice versa, then high; meanwhile, we should sound the participation in monitoring occupational health rights obligations and responsibilities of institutional arrangements of industry associations, occupational health service organizations, trade unions, community, labor, social media and other social subjects, with the procedural rules of science to promote the participation of social regulation system technology. Moreover, we should enrich and strengthen the rights of workers in occupational health, refine and strengthen the realization of the right path, such as rules to refuse dangerous work as specified safeguards, and clearly define employers and workers occupational health consultation procedures.References[1]Wencong Qiu. Talks on Rational Governance Paradigm Shift from the Workers Compensation System for Occupational Hazards Identified. Taiwan technology development and legal norms Biennial, 2008: pp.101.[2]WHO Expert Committee, Identification and Control of Work-related Disease, WHO Technical Report Series, No. 714, 1985, p.13.[3]Yueqin Huang. International Comparison of Worker Safety and Health Research - Work Environment Right exploration. Taiwan "Executive Yuan department worker safety and health institute": 1993(93-94).[4]Jigang Chen. The International Occupational Health Management System Architecture and Development Trend. Environmental and Occupational Medicine, 2006(6): pp. 537.[5]Wencong Qiu. Talks on Rational Governance Paradigm Shift from the Workers Compensation System for Occupational Hazards Identified. Taiwan technology development and legal norms Biennial, 2008: pp.105.[6]Di Xie & Qin He. Occupational Safety and Regulation Issues: Based on the Law and Economics Perspective. Economist: 2008(2), pp. 47, 48.[7]Occupational Disease Prevention Law revised at the end of December 2011.基于创新理念的中国职业卫生法律保护机制革命谭金科华东政法大学，上海，中国摘要：职业卫生法解释学的发展影响其法律政策设计方向。