中国人民大学法学院考研复试英语题目及答案

法理：●法与国家权力的关系●法律和社会的关系？Here giving me just minutes to say something about the relationship between law and society , I don't think I can express such a big topic clearly .so I just pick a few simple points to finish this task.Firstly, law came into being because of the needs of the humans' living .humans are regulated and safeguarded almost from a newly-born baby to one's death. Law is the outcome of the society , one of the social systems and one of the social regulations .it is closely related to the social customs ,playing a role of maintaining the existent systems and the concepts of the morals and ethics .It is the reflection of the social configuration of some society at certain times.Secondly ,law has the function of regulating the human' social life on one hand ,on the other, it can also actively lead people to tend toward the luciferous side in human nature.So ,a good law and its good effects can draw people away from evils and trespassing as much as possible, which eventually help us all to live a happy and harmonious life .Thirdly ,it is no doubt that law and society takes actions on each other . various kinds of social problems and the changes of some social notions can influence the regulations of the law including the new formation and recessions of some codes or even the constitution.Fourthly ,we should take a stand of movement to talk about anything. For the society as well as the laws in any county, they will never stay at the same level and time, and they should and they had better march on hand in hand and to most extent to be adapt with each other.●法与道德的关系When I was a middle school student, my political teacher told me that if I want to tell something about the relationship between two notions, I should either say something about the sameness and differences as well. I think this is true. So in face of this question, I will compare the sameness of the law and the morality first; and after that, I will tell the difference between the law and the morality.So now let me compare the sameness. 上层建筑――经济基础First of all, to make this point in a political way, the law and the morality are both determined by the economic foundation. So we can call that the law and the morality are both superstructure of the society and both of them play important role in the society. 道德――法Secondly, the morality contributes much to the law. For example, sometimes, the legal order should be and in reality it is kept or maintained by the morality. We can imagine that if morality is not observed, the law can be easily infringed.法――道德Now thirdly, I should say the law is very important to the morality as well. In fact, the law is determined by many factors including some morality factors. So keeping the legal order is just the proper way to keep the moral order of the society.Ok, just now, I have told your something about the sameness between the law and themorality. And now I want the reveal the differences between the two notions. In fact, there are many differentiations between the law and the morality. 形成时间Firstly, the morality emerged far earlier the law. Even in the primitive society, there was morality but the law did not emerge until the state is built in the slavery society.表现形式secondly, the form or the appearance of the law and the morality is not same. We can see that the law has the definitude form, and the effectiveness of the law is assured by the state, but the morality often has no form at all and they just has its roots in the people’heart. 作用机制And thirdly, the action mechanism of them are different. For example, the law is promised or guaranteed by the state power. But in contrast with the law, the morality has its effect only in the heart of people.调整范围And finally, as far as the regulating extension is concerned, the extension of the law is much wider than the morality. As we know, some behaviors simultaneously don’t conform to the law and the morality. So such behaviors can be regulated by the law as well as the morality. But we can see that there are some slight behaviors. They just go against the morality but not against the law. For example, some adults don’t care much about their old parents. So when such behaviors are very slight, they should just be regulated by the morality but should not be regulated by the law.Ok, that’s all for this question.司法公正与司法效率Judicial justice and the judicial efficiencyFirstly, I want to distinguish the two meanings of the judicial justice. The first o ne is the procedural justice while the other one is the substantive justice. For exampl e, the due trial process is the procedural justice while the trial result is the substanti ve justice. So what is the relationship between the judicial justice and the judicial eff iciency? Briefly speaking, the other way we consider the justice is the efficiency. The justice that is lack of efficiency is meaningless. This is just like the meaning of a pr overb that the late justice is non-justice.How to coordinate the relationship between the judicial justice and the judicial e fficiency? In my opinion, we should stick to the primary principle that the judicial j ustice has the priority over the judicial efficiency. There are several reasons. It is no doubt that the primary purpose we build up the judicial system is to protect the ri ghts of the citizens and at the same time punish what are against the judicial justice. So based on such arguments, I want to say that when judging the significance betw een the judicial justice and the judicial efficiency, we should choose the judicial justic e to be more important.But this is not to say the judicial efficiency is of no significance at all. On the c ontrary, I want to say that we should not neglect pursuing the judicial efficiency. No w let me give my reasons of this view. First of all, for the litigants in a lawsuit, in t he process of pursuing the ideal result of the litigation, their energy is limited, their money is limited, and their time is limited too. So judicial efficiency is of great impo rtance for them. It is not strange that they hope to solve their problems or the disp utes in a minute since the litigation starts. And even for the accused in the criminalprocedure, they want to finish the litigation soon because the long litigation is very p ainful for them. And the second reason the importance of judicial efficacy is that, as far as the state is concerned, as the neutral party of for example the litigation, t he judicial resource is limited too. For many years, the judicial specialists and the pr actionors have tried their best to seek some measures to solve the most judicial probl ems at the least cost. For example, take the jury system in America for example, in some complicated cases as the Simpson case in 1999, it cost the judicial resource mu ch morr than expected.So my conclusion is that we should not stick to the judicial justice only or the j udicial efficiency only. We should fully examine the self-value of either the judicial ju stice or the judicial efficiency.●程序正义与实体正义procedural justice and substantive justice●大陆法系与英美法系比较？――两大法系的区别Could you tell me something about the separation of judicial system?The term Anglo-American Law System refers to the system of law developed in Englan d and transferred to most of the English-speaking world. It is distinguished from the Contine ntal Law System used in Continental Europe, and in those nations settled by European peopl es. Both the two systems are the basis of law in most of the western world.The continental law system can be traced back to Roman law, which extended to the lim its of the Empire. It received its modern impetus from the early nineteenth-century French c odes of law created by French jurists.The differences between the two can be put as follows:Firstly, in the process of the formation of the continental law system, the jurists have played an important role, while the judges have contributed a lot in the format ion of the common law system.(法学家、法官)Secondly, I want to compare the representation of the different laws. The contin ental law system is famous for its statutory law and the common law system is famo us for its case law.（制定法、案例法）Thirdly, each system has its particular angle of view. For example, the continen tal law system pays its attention to the substantive law but the common law system pays its attention to the procedural law. The latter underlines trials、procedure、proof a nd execution.(实体法、程序法)Fourthly, the differences in composition of the two are apparent. In the Continental La w System, public law and private law are the basic classification, and the civil law are the ba sic classification, and the civil law plays an important role in it. While the basic parts of the Anglo-American Law System are common law and equity law, and public law is the key pa rt of it.（公法私法、普通法衡量法）In fact, there are many other differences between the continental law system an d the common law system. But in fact, each system has it own merits. For example, the continental law is better for its stability, and the common law is better for its flexibility. So in the development of each law system, many of the merits are introduce d into each other. And even today, when we are considering developing the judicial s ystem, investigating the particular characters of each of the judicial system is very i mportant.对司法独立有什么看法？(judicial independence/ independence of jurisdic tion)First of all, I want to say that the judicial independence is of great importance. When we are talking about the judicial independence, it is no doubt that we can all be aware of how important the law is. In fact, in the process of building the legal s ociety and the harmonious society, law is taking a great role in this process. And in order to make full use of law to rule the country, the independence of law is very i mportant. However, we can see that sometimes the ruling by law is interrupted by m uch resistance. For example, because of the political system of China, our courts are often interrupted by the People’s Congress, the government and so on.To make the meaning of judicial independence even more clearer, I have to say t hat the judicial independence in china refers to the courts’independence but not ref ers to the judges’independence. As we can see, the chief judge of our Supreme cour t is elected and appointed by the NPC(National People’s Congress), and it is regulat ed in the constitution that he has to give a report about the affairs of the court syst em annually to the NPC. And the local courts of China are functioned in a similar way. So we can see that when talking about the judicial system of China, we can no t confuse it with that of Americans.So now I want to say something about the judicial independence of America. A nd one phrase that can not be neglected here is the principle of checks and balance s. The U.S. Constitution provides for three equal and separate branches of governm ent. They are executive branch, legislative branch and the judicial branch.Each of the three branches is to some extent dependent on the other two and t here is a partial interweaving of their functions. For example, the President suggests legislations to the Congress and may veto legislations passed by the Congress; the Pr esident appoints federal judges and may grant pardons from punishment for offenses against the United States; the Congress appropriates funds for the executive branch and the judicial branch and may impeach and try members of the executive branch or the judicial branch; the courts may declare any presidential or executive action u nconstitutional and may declare Congressional legislation unconstitutional.So in a word, what I want to say at last is that when talking about the judicia l independence, we should pay attention to its particular political system as well. Onl y by this way, can we fully understand the judicial independence.中国司法制度评价（法制改革的必要性Do you think the legal system need s ome reform ? Why? ）――judicial system司法制度现状Judicature is one of the important forms of the enforcement of law. In China, th e subjects of judicature are only the court and the procuratorate. Relevently, the system of judic ature is made up of two parts: the system of people’s court and the system of the people’s procur atorate.In China, the power of judicature is divided into the powers of adjudication, powers of prosecuti on and the powers of legal supervision. The people’s court exercise the powers of adjudicatio n, and the people’s procuratorate exercises the powers of prosecution and the powers of legal su pervision.From the foundation of China, three main procedure laws were issued in succession. They are t he criminal procedure law, civil procedure law and administrative procedure law. In trial, the c ourt follows the principle of public trial, the independence of judicature, the system whereby th e second instance is final, the people’s jury system and so on.The procedure of lawsuit mainly contains the procedure of first instance, procedure of second i nstance, summary procedure, procedure for trial supervision and procedure of execution. Now, we are improving the system of evidence, procedure for review of death sentences and so o n. To view the China’s system of judicature, we may see that the legislation concerning procedu re law is in the process of further improvement, and judicial reformation is also under way.First of all, I want to explain what the judicial system is. In fact, there are two meanings of judicial system. And the difference between them is their extension. Whe n talking about the judicial system, somebody just refers to the systems that are rela ted to the nation’s judicial bodies, for example, the criminal investigating system, the prosecuting system, the trial system, the jail system and so on. The broader meanin g of the judicial system dosen’t confine into the systems relating to the judicial bodi es. They are relating the other judicial bodies as well. So we can see that these syste ms are also the judicial systems in China, for example, the lawyer’s system, the not ary system, the arbitrational system, the mediation system and so on.Since the birth of the People’s Republic of China, the judicial system have been constructed and developed greatly. And it is no doubt that the judicial system has be en playing a very important role in the society. Several tips can be taken to explain the situation. For example, as far as the criminal area is concerned, since the buildin g of the security system, the prosecution system, the People’s court system, many cri minals have been arrested and convicted, this leads not only to the punishment and t he education of the criminals, but also the protection of the due rights of the victims and the other people. Ok, let me take another example, for example, in face of the civil disputing, in the old days, people often tend to solve the problems by themselves. This may leads to some severe problems and can not settle the problems completely. But now the people have many other choices to solve such problems. As we can see from what the diverse systems I introduced just now, when a person is considering solving a problem with the other people, for example, a contract disputing, he can find lawyer to help him, he can go to the notary for help, or he can go to the court directly.So, judging from these arguments, we can safely draw a conclusion that the judicial system is very important, we need them in our daily life. But, to our disappointment, there is no doubt that there are many problems of our judicial systems correspondingly. Generally speaking, the efficiency of our judicial bodies are more or less lower than what we expect, the rights of the people are not properly and efficiently protected. For example, as far as the criminal procedure cod is concerned, some of the rights that are publicly and generally recognized all over the world are not listed in our cod. In contrast with the west developed countries, our protection for especially the accused is far behind that of those countries. In the criminal procedure, the accused does not have the right of silence, and he does not have the right to have his lawyer be present when he is questioned by the police or the prosecutors, and so on.So, I want to say, our judicial systems need some innovations indeed. And our principal for the innovation is that we should conserver what is accord with the situation of our country, and alter the systems that are not beneficial to us. So I think several tips can be conducted to improve our judicial system.Firstly, we should strive to do legal research in order to distinguish what is beneficial to us and what is harmful to us. Secondly, the practitioners must have discovered many problems of the judicial systems. So during the process of innovating the judicial system, the advices or the suggestions of them are very valuable and should be taken into account. Thirdly, there is a longer history of modern judicial system of the foreign countries, especially the developed countries. And there must be many advanced judicial systems of them. So what we should do is to learn from them and introduce whatever is beneficial to us.The reform in legal system is one of the important forms of law development. It means reformin g from the content to the form of law, from the enactment to the enforcement of law, to meet th e needs of changing society. Here, I just want to talk about the characteristics and reasons of th e reform in legal system.The initial aim of the reform in legal system is mainly to establish an efficient and coordinated l egal system. So, its tasks are to create some branches of law, draw up new laws, and abandon o r modify some old laws. For example, during the process of reformation, China has created the economic law, the business law , the environmental law, and so on. In more than 2000 laws a nd regulations issued from 1949 to 1979 , half of them were abandoned, one fourth were modifi ed, and one fourth keep valid.With the improvement of the legal system, people pay more attention to the effect of law. First, p eople are more concerned with the operation of law in legislation. Second, the reform in the syst em of judicature is put on the agenda. Third, the improvement of the supervisory system of law i s paid more attention. In short, in this stage, the core of reformation is to improve the operating system of law.But, what’s the ultimate goal of our reform? I think it is to realize rule by law. Meanwhile, to pr otect the rights of citizen is also its mission.As we see, the reform in legal system is always accompanied by other social reforms. It’s one of the characteristics of the reform in legal system. Besides the inner conflict between laws, the reform in economic system and political system are the impetus of reform in legal system.Only if the law adapts the development of society, it could bring its functions into play. But ,th e reform may be a long process, and we look forward to the coming of a society ruled by law.●法治――constitutionality/ rule by law/ government by lawFirst of all, I want to explain what is the “rule of law”. Simply speaking, “rul e of law”means that administer a country or manage the state affairs by law. The “rule of law”has many characteristics:Firstly, the legislative body should make the law open and definite. That means that since the born of law, it should be known to all the citizens and the meaning of the law should be apparent.Secondly, the judicial power of a country should be neutral and independent. T hat means that, for example, the judges be neutral to the litigants and the judges ar e only responsible to the law but not to anyone else.Thirdly, there should be several systems to safeguard the neutrality ant the inde pendence of law. This is very important. As a matter of fact, in some so-called the “rule of law countries”, there does exist a system of laws. But because of lack of s ome necessary surveillance, the neutrality and the independence of law of these count ries are often interrupted or even destroyed.In fact, there are many other characteristics of the “rule of law”. For exampl e, the power of the government should be strictly restricted by law and the right of the citizens should be properly protected by the law. And now, I want to turn this t opic to another word which is very similar to the “rule of law”. In Chinese, the t wo words share the same pronunciation:法制、法治. And in fact, the two words were often misused in China years ago. However, the two words are totally different from each other. I think the “legal system”refers to a system composed of a series of elements of legal issues.Now, China is undergoing a great project of building a “rule of law”country. And I think it is the basis for building up a state of socialist legal system to adminis ter the country according to law. Actually speaking, in face of the great goal, there must be much resistance before us. But I think, no matter how difficult it is, it is n o doubt that we will achieve this exciting goal.●对民主的认识――democracyAt first, I want to say that it is very hard to make a precise definition of what democracy is. In fact, even the textbooks have different views about this definition. But generally speaking, the opposite word of the democracy is the “dictatorship”. Ok, when asked my opinion about the democracy, I want to generalize some characters of democracy and contrast it with its opposite word, dictatorship.国家的一切权力归属于人民So the first character of democracy I want to say is that the state power is fundamentally attached with the people. In the feudalistic soci ety, the emperor or the king often proclaimed that his power was granted by the go d or the supernatural power, so the people or the citizens were to be ruled naturally. But in the modern democratic society, it is accepted that what the emperor or the king have said before is absurd. Now we believe that only the people have the state power to govern ourselves.政府权力必须是有限的，受到有效约束的The second character of democracy is th at the state power is limited and it should be restricted. We can easily imagine that if the state power is very powerful and not restricted, what will happen? It is no do ubt that the due rights of the people are prone to be easily infringed. And the unres tricted power will even lead to dictatorship. So restricting the state power is very im portant.民主的权力自身要有约束,公民享有平等参与政治生活的权利和自由The third char acter of democracy is that the democracy itself should be restricted. It is emphasized that that the citizens have the equal political rights. So we can see that the citizens have the equal rights to vote, and they have the equal rights to select the figures th ey like to be the leaders, and they have the rights to be equally protected by the la w or the state power.少数服从多数，多数尊重和保护少数的民主决策原则The last character of democ racy I want to say is that it has a very important principle. That is the minority sh ould submit to the majority, and the majority should respect and protect the minorit y. I think democracy does not mean that the people should have the same opinions o f all the issues. And that is impossible. So at this situation, this principle is very imp ortant, not only the rights of the majority are realized, but the rights of the minorit y are also protected.Do you think that states has the right to take citizens' lives?死刑存废问题There has been such a long time for the discussion of the abolition of death penalty since the great Italy criminal expert Beccates brought up his clear objection of death penalty in 18TH Century .As a whole ,it is predominate that more people think the country has no right of taking citizens' lives .As for me ,I am also in favor of this opinion. Firstly, the right of being alive is the basic and most important one to a person and also the whole country. As it is so- called “natural right”, I don't think the country has the right of disposing the natural right .In addition, citizens' live is the basic part of a country .No citizen' live, no country !Secondly, as we all know, the country is shaped by the giving away of citizens' public right ,so no doubt thatcitizens are the owners of the country and the country has no right of taking the owners' lives .Thirdly, from the origin of the country ,we can conclude that the country has the obligation of defending its citizens' lives .In a word, theoretically, the country has no right of taking citizens' lives.However, there are some cases that one person takes another' live .In this condition, as a solution to this problem and also a way of stabilizing the society ,I think it is sometimes necessary for the country to take one's live as a punishment .And we can see there are always mixed factors for the a country's criminal sys tem ;especially whether we should take the death penalty into consideration .We shou ld realize that the factors such as the cultural background . the history . the conscio usness of the citizens'.the safety condition .the influence of a case and so on are so d ifferent from one country to another .The most important thing is to take the most s uitable measure for its own country ,that is to mean do what is consistent with the s ituation of a country .In a word ,since the fact is complicated ,we should compromis e before the reality although to some extent we admit that the death penalty should be abolished theoretically .For example , based on the situation of China in the recen t years, I don't think it is the right period for the criminal system to abolish the de ath penalty.●对现行民法体系的看法？――civil law systemAbout the system of China’s civil code, there are three standpoints in the field of the scie nce of civil law. They are idealism, romanticism and realism. The idealism holds the Roman law in esteem, aiming to promote the status of personal law. The romanticism advocates t o draw up a loose civil code. While the realism stresses to respect the custom of our legal syst em, preferring the system from overall to fraction.But about the concrete design of civil code, though there are many suggestions, most sch olars choose the stand of realism. For example, some scholars think the civil code should con tain six parts as follows: the general principle, personal rights, real rights, intellectual right s, rights of inheritance, creditor’s rights. Some scholars deem the civil code should contain se ven parts, as follows: the general principle, real rights, creditor’s rights, rights of relative, ri ghts of inheritance, intellectual rights and torts.The views above have some resemblances in content, but also have many differences. Th e question is why they all choose realism in the design of the system of civil code. In fact, ther e are two style about the system of civil code. One is the style of Roman, accepted by Franc e, Italy and so on. The other is the style of Germany , accepted by Germany and its follower s. From the reform in legal system in the late Qing Dynasty, we have accepted the style of Ge rman’s system of civil code and its concepts, principles, institutions and theoretical system. T he arrangement of chapters and sections, concepts we are using and system of civil rights in t he general principles of civil law in force, apparently drawn lessons from German’s civil cod e. So, it is not surprise that so many scholars choose the realism.●对我国法律体系的看法――law systemFirst of all, let me try to explain what the law system is. Generally speaking, the l aw system refers to the inner structure of the law. The overall law can by divided i nto many different branches. And I think the law system is like a pyramid. Each br anch of law locates at different levels of the pyramid owing to their different effectiv eness. So we can see that the constitution is at the top of the pyramid. And we can see that because of the lower effectiveness, there are many branches of law under th e constitution.In China, there are four levels of laws in the law pyramid. As I have said just no w, the top level belongs to the constitution. There are several basic laws lying in the second level of the pyramid. They are the subsidiary branch of the constitution. Thi s group of basic laws are the criminal law, the administrative law, the civil law, the litigation law, the economic law, the marriage law and the labor law. And the laws o f the third level of pyramid are the subsidiary branch of the second level, for examp le, the intellectual property law. Correspondingly, the laws of the fourth level of the pyramid are the subsidiary department of the third level, for example, the copyright law.One point that I want to mention here is that the law system has a character of unification. For example they are located systematically like a pyramid. And it has a nother character: alternation. They are both the inner characters of the law system. As the society atmosphere changes, the law system will change too. For example, whe n a new country is built, the law system may change correspondingly. So, one famou s political phrase can be used here. That is: The superstructure is determined by the economic foundation.The system of the science of law is an interrelated entirety made up of many branches of the sci ence of law. As a theoretical system, it is changing with the legal theory and practice of law. To specialize the research, people divide the system of the science of law into many concrete bra nches according to certain criterions. But because of different angle of observation and researc h, the division varies from person to person. On the whole, criterions are mainly following: taki ng the object of research as criterion, the system is divided into the science of Constitution, the s cience of penal law, the science of civil law and so on; taking the level of research as criterion, i t is divided into the science of theoretical law and the science of applied law. The other criterion s are the scope of research, the method of research and so on. But to evaluate if such division i s scientific, two factors should be considered. The first is whether the division accords with the r eal appearance of the science of law. The second and more important is whether the division ac cords with logical rules.In china, the division of the science of law shows a complicated picture. Some scholars divided i t into five classes. They are the science of theoretical law , the science of applied law, the scienc e of the history of law, the science of domestic law, the science of international law. Some schol ars divided it into six classes. They are the science of theoretical law , the science of the branc h of law, the science of the history of law, the science of legislation, the science of internationa l law and the science of marginal law.The phenomenon of the science of law has complicated relations, so it is difficult to find a divisi。