法律英语 沙丽金版 阅读文本问题答案

Law
1.What’s the relationship between civilization and law?
The fairness of a nation’s laws and the extent to which the l egal system justly administers the laws is a measure of the enlightenment, humanity, and d egree of civilization of its peopl e.
2.What’s law?
Law consists of the whol e body of rul es applied and enforced und er the authority of established government in d etermining what conduct is proper and shoul d be permitted and that which should be d enied or penalized.
3.Can you list the rol es of law in society?
Without law, there woul d be anarchy. Law is the means through which society is abl e to exist by providing protection for the individual; by establishing and maintaining ord er, health, and safety; by providing a peaceful means of dispute resolution; by providing stability and fl exibility in economic relations between peopl e; and by prohibiting conduct d estructive to society.
4. How can law be best und erstood?
Law is best und erstood by viewing the l egal system as a process——a means of pulling together society’s needs and goals and translating them into guid es for fairness and reasonabl eness in conduct.
5. What are the events that promote the d evelopment of the English l egal system? Norman Conquest. William replaced the l ocal and highly varied systems of law with a common system of law.
6. Why did the peopl e in England petition to the King and what woul d be the result?
Because of the extremely rigid, frequently overly technical procedural requirements of the common-law system, peopl e were sometimes unabl e to obtain fair relief in the courts. In time, some persons who felt that the form of relief was inad equate petitioned to the King directly.
This practice gave rise to a second court system, call ed the Court of Chancery. 7. What was the situation of equity courts in North America?
American court systems in the nineteenth century resulted in simplification of judicial procedures and elimination of equity courts as separate courts in most states.
8.Was the statutes d eveloped fast in North America? Why?
9. What are the disadvantages of statues and the advantages of the common law rul es?
10. Who has the power to make the ordinances?
The l egislative body of a municipal corporation
Legal System
1.What is the relationship between the civil law system and Roman Law?
The civil law is based on Roman Law.
2.Who is the Justinian and what is his contribution?
Byzantium Emperor. Compiling cod es after the enthronement
3.Which is the primary source of law in Europe, Roman Law or l ocal laws?
Local customs
4.Why was the concept of codification d evel oped in the 17th and 18th centuries?
As an expression of both Natural Law and the id eas of the Enlightenment.
5.What did the opponents of codification think about codification of law?
Its opponents claimed that codification woul d result into the ossification of law.
6.What is the main feature of common law?
Its inclusion of extensive non-statutory law reflecting preced ent d erived from centuries of judgments by working jurists.
7.What is the difference between statutes and regulations?
Statues are enacted by a l egislature, whil e regulations are promulgated by executive branch agencies pursuant to a d elegation of rul e-making authority from a legislature.
8.Where shoul d peopl e go if they wanted to apply for injunctions before the 20th
century? Why?
Courts of equity. Only courts of equity have the authority to d o it.
9.What is the difference between the selections of judges in civil law countries
and that in common law countries?
Civil law judges are usually trained and promoted separately from advocates, whereas common law judges are usually sel ected from accomplished and reputabl e advocates.
10.What are the differences in the criminal procedures of the two major l egal
systems?
In general, the judge in a civil law system plays a more active rol e in
d etermining th
e facts o
f the case. Most civil law countries investigate major
crimes using a so-call ed inquisitorial system. Also, civil law systems rely much more on written argument than oral argument.
Court System
1.What is the main characteristic of the court system of the United States?
Courts are operated in both state and fed eral governments.
2.Are there any uniform rul es for creating state courts?
No. but it has a general pattern.
3.What are the functions of the inferior courts at the bottom of the state judicial
hierarchy?
Trying minor civil cases involving small sums of money, and minor criminal cases involving light penalties and conducing preliminary hearings in the more serious criminal cases.
4.Do all states have the same terminol ogy for courts and judges? Please give
exampl es.
No. For exampl es, a man who sits on the highest court of New Jersey is call ed a justice of the supreme court of that state, whil e a man who holds an equivalent position in New York is call ed a judge of the court of appeals.
5.What are the duties of the judges who sit on appellate courts?
They d o no trial work, being occupied exclusively in hearing appeals. They review the proceedings of trial courts upon the basis of written records. They hear oral arguments and read written arguments, call ed briefs, in an effort to discover whether errors were committed in the trial court of such a nature as to require reversal of the judgment or a new trial.
6.How many tiers of courts are there in the federal court system in the U.S.?
What are they?
There are three l evels of courts: trial, intermediate appellate and top appellate.
7.Does each state have a fed eral trial court? What d ecid es the number of the
fed eral trial court in each state?
Each state has at least one United States district court.
The population of the district
8.What types of cases will be tried by fed eral courts?
Prosecutions for fed eral crimes civil claims based upon fed eral law
civil claims between citizens of civil actions.
9.Which authority has the power to create fed eral circuit courts?
Congress
10.Does the Supreme Court of the U.S. review all the cases appealed? Dose the
Supreme Court of the U.S. have the power to review all the d ecisions mad e by the state highest courts?
No. Yes.
Constitution
1.What are usually established in a constitution?
A constitution establishes the rul es and principles by which an organization, or
political entity, is governed. In the case of countries, this term refers specifically to a national constitution, which d efines the fundamental political principles and establishes the power and duties of each government.
2.What are the exampl es that show the limitation imposed by the constitution to
the organizations in the United States?
An exampl e from the constitutional law of nation-states woul d be a provincial government in a fed eral state trying to l egislate in an area exclusively enumerated to the fed eral government in the constitution.
3.What are the relationships regulated by the U.S. Constitution?
The relationship among institutions of the state. In a basic sense the relationship among the executive, l egislative and the judiciary, but also the relationship of institutions within those branches.
4.How d o you d escribe an uncodified constitution?
An uncodified constitution is one that is not contained in a singl e document, consisting of several different sources, which may be written or unwritten. 5.Why is an unwritten constitution not an accurate synonym for uncodified
constitution?
Because all mod ern d emocratic constitutions consist of some written sources, 6.What d o the codified and uncodified constitutions respectively result from?
Codified constitutions are usually the product of dramatic political change, such as revolution. Uncodified constitutions are the product of an “evolution”
of laws and conventions over centuries.
7.Is it easy to amend a constitution? Why or why not?
No. an extraordinary procedure is required for constitutional amendments involve some procedures that makes obtaining a constitutional amendment more difficult than passing a simpl e law.
8.What happens if there are conflicts between the constitution and a statute in a
country using codified constitution?
All or part of the statue can be d eclared ultra vires by a court and struck d own as unconstitutional.
9.What are the sources of uncodified constitution of Britain?
Written sources: e.g. constitutional statues enacted by the Parliament and also unwritten sources: constitutional conventions, observation of preced ents, royal prerogatives, customs and traditions.
10.Are there any differences between the constitutional law and statutory law in
states using uncodified constitutions?
No. Both can be altered or repeal ed by a simple majority in Parliament.
Criminal Law
1.Who d o ordinary peopl e think of crimes?
Peopl e think of crimes as acts that threaten public safety, security or morality.
Crime can be d efined as anti-social conduct that is sufficiently serious to require state intervention and punishment.
2.What is the accurate d efinition of crime?
A crime is any act or omission that is contrary to the criminal law.
3.What are the elements that may establish a crime?
Criminal liability, guilty mind,
4.What is the standard of proof for the prosecution to prove that a person is
guilty?
Beyond a reasonabl e d oubt that the d efendant committed the actus reus of the crime, while at the same time having the required mens rea
5.What d oes the actus reus includ e?
Conduct, circumstance and consequence
6.Will all omissions lead to liability?
No
7.What are the circumstances where criminal liability has been imposed for an
omission?
8.What is shared by the cases about omission?
A d efendant has accepted or been placed under a duty to act, and his/her
omission constitutes a failure to discharge that duty—the omission is no l onger pure.
9.In what kind of cases is causation required?
The d efendant’s conduct caused the unlawful consequence
10.How is the subjective nature of criminal liability proved?
Show a criminal state of mind
Criminal Procedure
1.What is the function of criminal procedure law?
The law governing the series of procedures through which the substantive criminal law is enforced.
2.What are the sources of criminal procedure law?
The United States Constitution, (2) fed eral statutes (3) the Fed eral Rul es of Criminal Procedure (d) l ocal district court rul es (e) rulings of fed eral courts based on their common law d ecisional authority or their supervisory authority over the administration of criminal justice in the fed eral courts (f) the internal regulations of the Department of Justice and other agencies involved in the administration of the fed eral process.
3.What is a known offence?
Where the police conclud e that a crime may well have been committed, it will be record ed as a “known offence”
4.Who has the power to conduct investigation before arrest?
Police, prosecutorial and other non-police investigations
5.What are usually d one in the process of booking?
The arrestee’s name, the time of his arrival, the offense for which he was arrested are noted in the police “l og”, the arrestee also will be photographed and fingerprinted.
6.How many types of charging instruments are there in the felony cases?
Complaint information, indictment
7.Are there any differences between First Appearance and Preliminary
Hearing?
8.What will be d one in the process of a grand jury review?
Determining whether there is sufficient evidence to justify a trial on the charge sought by the prosecution. If a majority of the grand jurors conclud e that the prosecution’s evid ence is sufficient, they will issue the indictment requested by the prosecutor.
9.What are the characteristics of criminal trial?
（a）the presumption of d efendant’s innocence (b) the requirement of proof beyond a reasonabl e d oubt (c) the right of the d efendant not to take the stand
(d) the exclusion of evidence obtained by the state in an ill egal manner
10.How many types of sentences are used in criminal cases?
Financial sanctions, some form of release into the community, and incarceration in a jail or prison
Civil Procedure
1.How d o people resolve their disputes?
One is to engage in “self-help”, by which you redress the wrong personally.
Another is to contact the person who harmed you and d emand some compensation or other remedies.
2.Which way of settling disputes is acceptabl e in the society?
Litigation
3.Why is litigation a publicly fund ed dispute resolution?
The taxpayers provid e the courtroom, the judge, and the instrumentalities by
which the dispute is resolved.
4.Who usually initiates a civil litigation, a government or an individual?
Individual
5.Is civil litigation time consuming? Why?
Yes. Because there are many more parts to the process than the trial,
6.Why is the question of forum sel ection important?
The d ecision implicates a variety of important d octrines. And there are questions of tactics and id eal for the d efendant.
7.What should be d ecid ed by a plaintiff and his /her lawyer before filing a suit?
What to put in the complaint.
8.Where can the elements of claims be found?
Substantive law
9.What is the function of civil procedure law?
Civil procedure provid es the mechanism—the process—by which disputes over such substantive claims are resolved. It provid es a theoretically content-neutral mechanism for resolving disagreements. It establishes the method by which someone woul d vindicate a right given to her by the law. 10.What are the stages in civil litigation?
Pl eadings, motions, discovery, possibl e pretrial adjudication, conferences, and meetings
Torts
1.What are the functions of tort law?
The purpose of torts is to compensate an injured party through the award of damages for the injuries incurred during a tortious act.
2.What is the difference between a tort and a crime?
The difference is that a tort is a wrong against an individual, whereas a crime is a wrong against society as a whol e.
3.How d o you prove the intent of a d efendant?
Intent is most often proved through circumstantial evid ence: the d efendant’s conduct, in the context of his or her surroundings and what he or she presumably knew and perceived.
4.What are the elements of false imprisonment?
(a)Intent to confine a person within a certain area (b) actual confinement
(c) Awareness of plaintiff of the confinement or injury to plaintiff due to
confinement; and (d) Prevention of exit or no safe exit possibl e by plaintiff 5.What needs to be proved in case of trespass?
An act, coupl ed with the intent to cause entry by the d efendant, and an invasion of the plaintiff’s land
6.What d oes standard of care mean?
As a general rul e, all persons are und er a duty to conduct themselves in such a manner as not to create unreasonabl e risks of physical harm to others.
7.How d o you make d efense for a negligent conduct?
Contributory or comparative negligence and assumption of the risk
8.What is the difference between the two types of comparative negligence?
Pure comparative negligence simply means that if a plaintiff is 90 percent at fault, he or she can still recover 10 percent. Another name for partial comparative negligence is 50percent rul e, which means that if the plaintiff is more than 50 percent at fault, he or she cannot recover.
9.In what situation is the d efense of assumption of risk applied?
The plaintiff’s own actions trigger this d efense, which is the plaintiff’s knowing and voluntary consent to encountering a known danger.
10.Can a plaintiff get recovery if the d efendant has no fault und er strict liability
d octrine? Why?
Yes. Legal fault stems from a d eviation from a standard of conduct need ed to protect society and its citizens.
Contact
1.In what situation is there an implied contract?
An implied contract is one that is inferred from the conduct of the parties.
2.What is the difference between bilateral contracts and unilateral contracts?
A bilateral contract is one in which the parties exchange promises to d o some
future act. A unilateral contract is one in which one party acts immediately in
response to the offer. The response is in the form of immediate action rather than a mutual exchange of promises.
3.What is the difference between a void contract and a voidabl e contract?
A void contract is a nullity from its beginning, and damages d o not result. A
voidabl e contract is one that is binding until it is disaffirmed or canceled by the party with the authority to d o so.
4.What are the key el ements for the formation of a contract?
(1)the capacity of parties; (2) offer and acceptance (3) Consid eration
5.How d oes a corporation enter into a contract?
The law creates a l egal fiction that corporations are persons.
6.Are the sharehol d ers of a corporation involved in the contract conclud ed by
the corporation?
No. This d evice allows corporations to sue and be sued and to conduct business transactions as entities without involving individual shareholders. 7.What may d ecid e the capacity of a person to enter into a contract?
The age of the individual or from a party’s being mentally incapabl e of und erstanding the ramifications 后果of the contract
8.Are there any special provisions about minors’making contract? What are
they?
Minors are und er an obligation to return any consid eration received und er the contract
9.How can misund erstandings about terms in compl ex contracts be avoid ed?
Compl ex contracts often contain sections that cl early d efine certain terms. 10.How d o you d ecid e whether the two parties of a contract have the mutual
agreement?
On an objective standard, and the subjective intent of the parties is usually irrelevant
Law of Corporation
1.Why was the corporation proved to be an id eal instrument for the industrial
d evel opment?
It coul d raise large amounts of capital from numerous investors and yet
provid e centralized direction of large industrial concerns.
2.Who has the power to approve the individual corporate charter originally?
State legislatures
3.Which state is the winner in the race of attracting companies?
Delaware
4.What is the procedure for the formation of a corporation?
Filing an appropriate d ocument with a state official, and paying the appropriate fee
5.What can corporations d o as artificial persons?
The artificial person may conduct a business or businesses in its own name much in the same way that a “real” person coul d.
6.What is the most obvious advantage that a corporation has?
The corporation is unlimitedly liabl e for the d ebts and obligations of the business but the sharehol d ers are not, since in theory all d ebts are the artificial entity’s obligations, not the sharehol d ers.
7.Why d oes a corporation have continuity of life?
The existence of the corporation is not d epend ent on who the owners or investors are at any time. If sharehol d ers die, or d ecid e to sell out, the corporation continues to exist as a separate entity.
8.How d o you und erstand the sentence “the corporation d oes not have a limited
life span”?
It d oes not really mean that all corporations will continue until the end of time but rather that a corporation will continue ind efinitely until the owners d ecid e to dissolve it or merge it into another business.
9.What rights d o sharehold ers have?
Very specific rights such as a limited right to inspect the books and records of the corporation
10.Who has the right to d ecid e the transfer of sharehol d ers’ownership of
interests?
oneself
Intellectual Property
1.How are intellectual property and intellectual rights d efined?
Products of the mind: inventions, literary and artistic works, any symbols, names, images, and d esigns used in commerce.
Rights given to people over the creation of their minds
2.Are “id eas”the product of the mind? And are the “id eas”protected by
intellectual property law?
Yes, no
3.What d o the various kinds of intellectual property have in common?
Patents, copyrights, industrial d esigns, trad emarks and confid ential information
4.Why d o the intellectual property rights have much in common with the rights
associated with real property?
Intellectual property rights can be assigned or bequeathed.
Intellectual property is itself intangibl e, it will be embodied in real objects.
5.Do the different intellectual property rights have the same history? Why?
Each of the diverse intell ectual property rights has its own separate history. 6.What is the shaping of the intellectual property law cl osely related to?
Change economic and social conditions
7.Are there any differences in the attitud es towards intellectual property rights?
What are they?
Important economic assets rewards for mental labor
A reward for individual creativity products of the market
8.In what way the ownership in intellectual property is limited?
Time
9.How are most intellectual property actions settl ed?
Most are settled at the pre-trial stage and the usual remedy, where the claimant is successful, is a permanent injunction together with costs.
10.What are the remedies in intellectual property cases?
Delivery up, damages and an account of profits。