法律英语口语资料

1. What are the main difference between civil law system and common law system?

There are many differences between civil law system and common law system.

First, their original places are different; the civil law system originated in ancient Rome, and the common law system originated in England.

Second, the main traditional source of the common law is cases, while the main traditional source of the civil law is legislation.

Third, the civil law system pays more attention to substantive law; the common law system pays more attention to procedural rules.

Another important difference between them is classification, the civil law is separated into public law and private law, the common law is separated into common law and equity.

2. Can you explain the difference between the binding precedent and persuasive precedent?

Binding precedent is precedent that a court must follow (it is law). All prior judicial decisions in a specific court's jurisdiction heard at that court's level or higher are considered to be binding precedent.

In contrast, persuasive precedent is precedent that a court need not follow (it is not law, but as the name suggests, may be persuasive because it suggests a line of reasoning). All prior judicial decisions outside of that court's jurisdiction or from a lower court are considered to be persuasive only.

3 . What might happen if a court follows the precedent mechanically?

A court following the precedent mechanically will at times perpetuate legal rules and concepts that are outlived their usefulness. The continuing problem in a legal system that recognizes past decisions as authoritative sources of law for future cases is how to maintain an acceptable accommodation of the competing values of stability in a law, served by adherence to precedent, and responsiveness to social change, which may call for the abandonment of an outworn legal doctrine.

4 . Explain the difference between stare decisis and res judicata?

The stare decisis is that the final decision, as a precedent or a potential precedent for future case, has its impact on the legal norm of the conduct. And the courts have never regarded as absolutely binding and can overrule even clear precedents when consideration of public policy requires a change in the case law.

The res judicata is an authoritative settlement of a particular controversy then before the court, it is addresses a decision’s impact in the individual case .and it have the absolutely binding even when the precedents changes, the particular case will not be reversed. The doctrine of res judicata bars a person from ever suing on the same claim again.

5. What’s the function of court of last resort? Why are appeals to court of last resort limited?

The function of court of last resort is to review the action of the lower judicial tribunals of the state. The scope of judicial review is relatively narrow. It only reviews the record of the proceedings to determine whether or not the lower court committed error on its procedure or in applying the substantive law to the facts of the case.

Appeals to court of last resort are limited. It’s because court of last resort has to give its full attention to novel and socially important controversies. The “screening ort” function refers to make the intermediate appellate court the final tribunal for most cases.

6. Can you explain diversity of citizenship? What court have jurisdiction over “diversity of citizenship”? Diversity of citizenship means suits between citizens of different states of the United States.

Both federal and sta te courts have the jurisdiction over “diversity of citizenship”. If a plaintiff files the case in a state court of his own district, the defendant can remove it to a federal court of the same district. But if the plaintiff files it in the court of the defe ndant’s district, the defendant can’t remove it.

7. How can you get appeals reviewed by the Supreme Court?

You must first persuade the Supreme Court that the issues presented by your case are important enough, as issues of general federal law, to justify Supreme Court consideration. A disappointed litigant cannot secure Supreme Court review merely by contending, however persuasively, that the decision handed down against her was wrong. Always reviews by the Supreme Court can be secured only by a “petition for a writ of certiorari”, which the supreme court, in the exercise of the broad discretion conferred upon it by acts of congress, may grant or deny.

8. What kind of case can be reviewed by the Supreme Court?

The Supreme Court also considers cases on appeal from (or rejected for appeal by) State supreme courts, provided the case is of national importance and involves constitutional or federal law. The justices do not rule on state constitutional issues or state and municipal statutes.

The Supreme Court decides to hear a case on three major factors: whether the case was an appeal by the federal court and is in conflict with the decisions of other circuits; the general importance of the case; and whether the lower court's decisions may be wrong in light of the Supreme Court's opinions.

9.What does judicial review means? Why it’s very important constitutional principle in us?P47

Judicial review is established by Supreme Court in the case of Marbury v. Madison. The power of the court to examine legislation and other acts of Congress and to decide their constitutionality. The doctrine of judicial review also embrace the power of the Court to explain the meaning of various sections of the Constitution as they apply to particular cases brought before the Court.

Because a series of Court decisions has affected a change in the way many constitutional clauses are interpreted, without amendment to the actual text of the Constitution. The court system ultimately decides whether or not they are allowable under the Constitution.

10.What does checks and balances mean? How do you comment on this principle?P40

Checks and balances is an intricate set to checks and balances the Constitution builds into the system of government. By preventing any one of the three branches from acquiring dominance over the others, these structural and procedural safeguards have preserved a fundamental, albeit not always neat, separation of powers.

Comments: Although developed over two centuries ago, checks and balances continue to perform this essential function despite the dramatic societal, technological, economic, and political changes in the United States over the past two centuries. The Framers made the conscious decision of choosing constitutional generality over the overly specific civil codes of the European nations. By so doing, they wisely built in a flexibility to accommodate change to that a living instrument of government could be passed down to succeeding generations.

11. How do you distinguish between substantive laws from procedural law?

Substantive law defines and regulates people's rights, duties, powers and liabilites; the actual rules and principles administered by the court including legislations and common law principles.

Procedural laws are body of rules prescribing the manner, form, and order in which matters are dealt with and enforced. Procedure describes the process in which the case should proceed.

Substantive law informs society as to what behavior is acceptable or unacceptable, whereas procedural laws direct the state as to the proper methods for apprehension and adjudication.

12. Explain the element establishing criminal liability

These elements include mens rea,actus reus and causation.

Mens rea, the 'fault element' of a crime, attempts to ensure that only those who are morally culpable will be punished by the criminal courts.

The actus reus element relates to the “doing” part of the crime. If a person does not have a legal duty to act and in fact does not act, then the person cannot be held legally accountable for the unlawful acts of others. Causation is considered to be the logical coming together of the mens rea and actus reus,resulting in a criminal wrong.

13. What kind of legal rights that police must advice the suspect of before any interrogation in us? What’s the signif icant of the case of Miranda Arizona?

(1) The interrogator must advise the suspect that:A. he has a right to retain silent; B. anything he says may be used against him; C. he has a right to a lawyer; D. if he cannot afford a lawyer one will be provided free. It became known as the doctrine of Miranda Warnings later.

(2)Through the case of Miranda v. Arizona, which became a binding precedent, the Miranda Warnings were established. Then an individual cannot be lawfully arrested unless the police have probable cause to believe a crime has been or is being commited : That is, a paticular substantive law must be violated before the state will begin its investigation.

14. Do you agree it’s better to free guilty persons than to convict innocent ones

Yes, I do agree. There are three reasons.

First, an individual’s rights including life, liberty, and property and so on deserve to be protected seriously by government and not to be deprived unlawfully. This is a legal duty of our government.

Second, in this way , fairness and justice will be further realized, a citizen may not worry about his/her actions being disturbed in a wantonly(恣意的) manner.

Third, this is in line with the principle of persumption of innocence. That is nobady can be finded guilty before the valid adjudication.

15.What the function of voir dire? What do challenge for cause and peremptory challenge means? Can you distinguish?

Answer:Ⅰ.The function of voir dire is to select a jury. (A random cross-selection of persons in the community in which the trial is to occur is summoned to the courtroom. The prospective jurors take the stand and are presented a variety of questions by the prosecution and defense in an attempt to select a jury acceptable to both sides.)

Answer:Ⅱ.The challenge for cause allows for the exclusion of a juror only if the excluding party demonstrates that the individual cannot be impartial or cannot otherwise handle the responsibility of making a rational decision.

The peremptory challenge allows either side to have prospective jurors excused without having to specify a particular reason.

Answer:Ⅲ.They are both the methods to exclude the jurors, and I can distinguish them. Firstly, as I have mentioned earlier, the definitions of them are different. Secondly, the types of peremptory challenge are typically limited to six in no serious cases and twelve in felony or capital cases. However, there are no limits to the number of challenge for cause that either side may employ.

16.What do you think of Anglo-American jury system? What are advantage and disadvantage of it? Answer:Ⅰ.In the Anglo-American law system, there is a jury trial in the trail courts. In the jury system, the jury generally decides questions of fact. For example, the defendant is guilty or not guilty, whether a party was negligent. while a single judge decides questions of law.

Answer: Ⅱ. The advantages and disadvantages of the jury system are a matter of perspective because what is an advantage to one side is a disadvantage to the other. The advantages of the jury system are that it is a mechanism for forcing parties to hear what an unbiased jury really thinks of their case. The jury is supposed to be the protector of the individual’s rights. Presumably the jurors are to understand the actions of the accused and judge whether the actions were prudent and acceptable to common values of equals in the same society. If the actions were beyond acceptable response to the circumstance then the accused in guilty and should be punished so that future actions are discouraged and societal standards are maintained.

However, there are same disadvantages to the jury system. The jury system exposes one party to an earlier "dry run" of the points of the other side. Many disputants may not wish to prejudice their cases in this manner. Also, some jurors can be nullify or disregard the state’s action against an accused based on their distaste of the state . By the time the jury trial takes place, the parties have engaged in much discovery have already incurred many costs.

17.What does charge to jury mean? What does judge do during charge to jury? What do either side do during this?

“Charge to the jury” means that the judge gives her instructions to the jury as to the applicable law of the case . In actual practice , few instructions are ever drawn up by the trial judge as a matter of her own literary innitiative . what usually happens is that each side draws up instuctions and submite them to the judge . the judge then looks at the draft instructions submitted by both sides snd decides which ones to give to the jury (she will probably revise the words).

Either side in the ligislation may:

(i)except, i.e., record objections, to any instruction or part thereof , which he believes is an erroneous

statement of the law; or

(ii)Except to the refusal of the judge to give his instruction.

18. What’s the difference between a tort and offense? Are there any overlapping causes?

AnswerⅠ:(1) The purpose of tort is to compensate an injured party through the award of damages for injuries incurred during a tortious act. An offense is an act or omission prohibited by law that may be prosecuted by the state.

(2)The difference is that a tort is a wrong against an individual, whereas a crime is a wrong against society as a whole

(3) The second distinction involves the persons who actually prosecute the case. In tort actions the individual against whom the wrong has been committed generally hires an attorney to process the claim. However, a specially designated state prosecutor or federal official directs the proceedings when crimes are involved. (4) Tort restitution relies primarily on monetary compensation, although one who commits a crime may be required to provide some forms of monetary restitution to society or to the victim, additional punishments are also readily available. These include fines, probation, jail sentences, removal from public office, and even execution. Excepting fines these latter remedies are not available in tort law.

AnswerⅡ: Some acts or omissions may be both criminal offenses and tortious ones. As a general rule, any time an individual has been intentionally and physically harmed by another, the state may prosecute and punish, and the injured individual may also sue to recover civil damages.

19.What elements must be proven for the court to impose liability for negligence?

For the court to impose liability for negligence , the fallowing elements , which we will discuss separately , must be proven:

(1) that the defendant had a duty of care;

(2) that there was a breach of that duty by negligent conduct;

(3) that the act or omission caused injury ; and

(4) that the act or omission is not subject to the defenses of assumption of the risk or contributory negligence . Although the elements are isolated for discussion , they are interrelated to the extent that it is almost misleading to speak of them separately .

20. Compare the difference between doctrine of contributory negligence and comparative negligence? Contributory negligence and comparative negligence are two affirmative defenses that tort law has traditionally afforded.

The contributory bars plaintiff from recovery if his or her own acts or omissions construct to the jury. It has the nature of “all-all-nothing”, which led many to question whether such a defense was actually fair. As a result of such discussion, contributory negligence was deleted as defense from the vast majority of statutes and replaced with comparative negligence.

Comparative negligence does not automatically preclude the plaintiff’s recovery if the plaintiff is guilty of some degree of negligence .We compare the percentage of the negligence of the plaintiff and the defendant and reduce the plaintiff’s damages by the percentage of fault.

21.Please explain the tort of stick liability? Name some example?

Strict liability is liability without fault-it is based on the policy of law that under certain circumstances, a plaintiff may be allowed recovery even though there is no fault on the part of the defendant.

Historically, strict liability covered situations in which activities-blasting, storing inherently dangerous substances, keeping wild animals-were abnormally dangerous ones .

Sellers and manufacturers can be held responsible under strict liability when if the seller or manufacturer exercised all reasonable care in production and sale of the product and even if there is no privity of contract.

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