No-fault
crime A person is considered a criminal, or his actions are called a crime, because he has both bad behavior and subjective fault. That is, if a person has nothing to blame in his mind, we cannot punish him as a criminal. This is based on the idea that man has free will to control his behavior, and when he can control and restrain himself but not restrain himself, then people have moral and legal reasons to condemn him.
However, in some English-speaking countries, the law sometimes convicts the accused even if he is not at fault.
In 1846, a British tobacco wholesaler named Udlow was fined a large sum by the court for selling adulterated tobacco. In fact, Udlow is an honest and loyal person, and he has never had any bad deeds such as evil dealers and profiteers. Over the years, he has managed his business carefully and always greets his customers with a smile on his face. However, one day, someone from the Tobacco Special Administration came to the door and asked if Birddro had ever sold adulterated tobacco. People from the Bureau said that many consumers reported that the tobacco they had smoked could not be more fake, and that these fake tobacco came from Udlow. Udlow said he never does this kind of thing. As for why the tobacco from him is fake, he really doesn't know.
The Bureau took Udello to court. The court found Udlow guilty of selling adulterated tobacco and fined him a sum. Udlow shouted injustice. He said that he was just a tobacco wholesaler, buying goods from others and then wholesale to hawkers.
First, he had no intention or negligence to sell fake tobacco, and secondly, it was impossible to conduct chemical inspection on tobacco. Moreover, the law does not require tobacco wholesalers to test the tobacco they sell at all, so he was not at fault in this draft of fake cigarettes.
No matter how you complained, the court sentenced it like this. In criminal law, this is called "strict liability", which means that no matter whether you are at fault or not, you will be held criminally responsible. We feel that this seems a bit unfair. Why is this businessman not at fault? To treat him like this? Some Westerners answered affirmatively: Of course it is necessary! They think that if Udlow is punished like this, others will be especially careful to do serious business in the future. If you want to do business without losing money, you will think of many ways to avoid fake goods, Or use the terms of the contract to bind the other party, or simply find someone to inspect the goods, and if everyone is so careful and does this, will there still be fakes? More importantly, this kind of fine is not an ordinary fine, it is a criminal fine, and it is a sentence after having a reputation for crime. This kind of criminal punishment is what people fear most. Generally, a fine is equivalent to losing money, and you can earn money after losing money. However, criminal punishment is an uncompromising black pot, which must be carried for the rest of your life. Therefore, no fault should be punished, that is, let people raise their sense of responsibility
. The fate of Simpson
Xin 's wife's throat was cut, and her boyfriend was also brutally murdered. There are indications that Simpson is the suspect. Simpson is black, and blacks say he's not a murderer. But the victim was a white man, and the white man called him an out-and-out murderer. After the white police arrested him, they unceremoniously pushed him to the trial stand, meaning to let the black man return his life, at least let him taste the taste of life in prison. Simpson really deserved to die. Not only did the 12-person jury include 10 blacks, but the white policeman had the defense attorney seized on the evidence that he was the most likely murderer, despite the fact that he was the most likely murderer. What's even more amazing is that the gloves used to prove that they were used to kill can't make Simpson put on again, so that people can no longer intuitively imagine how Xin put on gloves to kill.
On the day of the sentencing, hundreds of millions of Americans watched on live television how Xin was relieved and how the victims' loved ones were distraught. Although the verdict left a far-reaching social and cultural impact, the case was closed after all. However, just when people wanted to completely forget about this case, the victim's relatives provoked another civil compensation lawsuit. The defendant was Simpson again, and the reason was very simple: he murdered!
The question now is: if he was judged not to be a murderer in a criminal case, how could he be found to be a murderer in a civil case to compensate him? However, not only the relatives of the victims think this can be done, but also American legal professionals and the general public.
This is an interesting point of American law. American law believes that evidence in criminal lawsuits is different from evidence in civil lawsuits. Requirements are higher than the latter. Criminal evidence must be conclusive. Therefore, although it can be said that "the bad deeds of the white police do not necessarily mean that the evidence provided by the police is unreliable", "the gloves will shrink after being stained with the blood of the victim, so of course Xin can no longer wear them", but these Inference cannot always remove some doubts. And civil evidence is not so strict. In a civil lawsuit, as long as it can generally be proved that Xin committed murder, it can be said that he is a murderer and he should be sentenced to compensation.
The Western concept is that a criminal lawsuit is the state's use of power against individuals, and if such power is abused, it will infringe on the rights of individuals. So it must be strictly required. In a civil lawsuit, an individual uses his rights to deal with another person, and they are in a relationship of equal mutual obligations, so there is no need to be so harsh.
Now, the American media is reporting the latest developments in the Simpson civil lawsuit (not yet decided) every day. Everyone thought that this time Xin was doomed. We can think that the court is most likely to rule in favor of the plaintiff to compensate for the psychological imbalance of some people, especially white people. However, the above concept of legal culture is true Simpson's fate is ultimately the result of legal culture. (Note: The case was decided in February 1997. As this article says, Simpson lost the case.)
The Citizen's Jury
In the United Kingdom and the United States, there is an organization of judges called the Jury. The group often sits next to the judge, making the best possible decision on the evidence in the case. In some criminal cases, only the jury can decide whether the defendant is guilty or not, and the judge cannot make irresponsible remarks. For example, in the famous Simpson murder case not long ago, whether Simpson was guilty or not was decided by the jury.
As we all know, in the Simpson case, more than half of the jury members were black. There was a lot of evidence against Simpson at the time, but there were two issues that cast some doubt on the prosecution's allegations: 1. As one of the gloves, Simpson couldn't wear it at all; 2. The police in charge of investigation have their own record of racial discrimination. In this way, the jury acquitted Simpson, even though it was thought that there might be something wrong with Simpson. There is also a jury system in China. In the courthouse, you can find that sometimes there are two people sitting next to the judge who don't wear judge uniforms. They also go through the file and ask the defendant. However, these "people's jurors" do not have the ultimate power to say the defendant is guilty. or innocence, generally speaking, they especially listen to judges.
As for the jury, people will naturally ask the following questions: First, since ordinary people don't know much about the law and trial techniques, wouldn't it be unnecessary to let them come to the jury? Second, inviting a jury is a waste of resources, because it costs money; third, compared with judges, most people tend to be emotional. Like the Simpson case, isn’t the jury with a majority of black people very emotional? However, some countries still keep the jury, and they think this way: when determining the relevant evidence, what is needed is not the most rational coldness, but the common sense of ordinary people, because the latter is more likely Close to the essence of the case,
they also believe that from a deeper level, the legal operation of modern society is becoming more and more specialized, technical, professional and power centralized, and is increasingly dominated by a cultural class such as jurists and lawyers. Control, through the interpretation of the law and the interpretation of evidence, this class makes the trial almost become a place of elite culture, so the "rule of law" originally conceived by people has gradually separated from the "democracy" on which it depends. In other words, jurists always represent an elite culture, while ordinary people definitely represent a commoner culture. The difference between the former and the latter caused the “rule of law” and “democracy” to part ways to a certain extent in the trial. How to do? I am afraid that the only way to maintain the voice of the people during the trial is to maintain the mutual connection between the rule of law and democracy. Discretion under general rules
Some people say that one of the purposes of making laws is to achieve "the same situation in the same situation". The law means general rules, and dealing with the same situation under the guidance of general rules is a kind of fairness. On the other hand, with general rules, there should be no "specific treatment" or "discretion", otherwise the general rules will be useless and return to "rule by man". This sounds good, but is it possible under the general rules to achieve fair same-situation-alike treatment? If you can, you should do what this person said, and leave no room for things like "discretion" to prevent the "rule by man" from reviving;
Give an example to analyze. The law stipulates that anyone who steals 500 yuan of other people's property will be sentenced to 15 days in prison and fined. A is idle on weekdays and stole 500 yuan from the neighbors; B, because his mother was seriously ill, he stole 500 yuan from the grocery store to pay for medicine; Yuan book.
How to deal with it? By law, all three were sentenced to the same prison term and fine, as the law did not specify what to do in special circumstances. But is it fair to treat the same situation equally? Obviously, the situation of the three people is also different, and it is indeed unfair to "treat them the same". Some people will say that in order to solve the issue of fairness, the law can be specified in a little more detail, for example, to stipulate that the punishment for those with bad behavior is more important, and the punishment for those with good moral motives is lighter. Many laws do just that.
But when you make new regulations, there will be "different" problems. What if one is a repeat offender and the other is an occasional offender, both from good moral motives? The same is bad behavior. One steals the money from the poor, and the other steals the money from the rich. The poor are miserable because of the theft, but the rich don't care. How to deal with it?
Some would also say, to be more specific. However, "different" situations can arise endlessly. The law will one day reach the point where we can't read it. Obviously, the law cannot be so stipulated, and any country from ancient times to the present has always There is no such provision. But if these "differences" are not considered, there will be unfairness. Doesn't this mean that a perfectly equitable like-mindedness can't be achieved under the general rules?
Therefore, in order to ensure fairness when the same situation is treated the same, discretion under the general rule should be allowed, allowing judges to have flexible means of handling within a certain range. And this does not cause people to fear the kind of” "rule of man", because that kind of rule of man is rule of man above general rules, while judge's "rule of man" is "rule of man" under general rules,
the wisdom of Bosya
The means of "instrumental rationality". Anthony, in order to marry his best friend Bassanio and Boscia happily, borrowed 3,000 yuan from the Jewish merchant Sherlock Gauri. At that time, the contract was absolutely free, so the two parties had a cruel agreement: if Anthony could not repay the money at that time, he would cut a pound of flesh as punishment. Unexpectedly, due to the delay in the arrival of the cargo ship operated by Anthony, the usury loan could not be repaid on time. Knowing that he had breached the contract, Anthony apologized to Sherlock and was willing to pay a fine of 3,000 yuan. Sherlock, however, seemed to be delighted to have to cut that piece of flesh on Anthony. He especially wanted to see Christians separated from flesh and blood in the courtrooms of Venice under the "halo" of Christianity. After learning about it, Pausia pretended to be a lawyer in court. Pausya claimed that Shylock's claim was completely legal, that Anthony's proposal to replace "cutting the flesh" with a "fine" was meaningless, and there was no way Anthony proposed in the contract. Afterwards, Baoshia solemnly addressed the judge: The court must rule in Sherlock's favor, because the contract complies with the law, and Sherlock has every right to cut a pound of flesh on Anthony. This is the justice that Sherlock deserves. Sherlock was very excited to hear this argument, and shouted that Pacia was fair and wise, and came over with a knife to "perform the contract". However, just as Sherlock put the knife on Anthony's chest, Pausia suddenly said: Hold on! The Venetian gentleman's flesh was awarded to you, but his blood was not awarded to you. The contract only mentioned "meat", not "blood"; By law, all your property must be confiscated. Moreover, when cutting meat, neither more nor less is allowed, otherwise it will also be severely punished by the law. Seeing that things were not good, Sherlock repeatedly apologized to the court and Anthony, saying that the contract would not be executed. However, Pausia still seemed to beat the underdog and shouted loudly: Sherlock must execute the sentence, otherwise it can only be regarded as an intention to harm, and he will also be punished by the law. In the court of Venice, if you want justice, you will be given justice, and More fair than you want! In this play, Shakespeare may have wanted to show that the Venetians under Christianity were not only "just" but also "wise." However, whatever its intentions, we can indeed appreciate a concept of Western legal culture - not only fairness, but also wisdom. Obviously, Westerners think that without wisdom, the law may become a means of "evil", and fairness cannot be achieved. No wonder Plato said a long time ago that judges must have profound knowledge and rich experience, but more importantly, they must have the judgment of good and evil and the wisdom to promote good and punish evil in the law.
'The difference' technology
In English-speaking countries, judges always have a habit of looking at how judges have judged similar cases in the past when making judgments, so as to save trouble, and secondly, to achieve "equality before the law", which is something many of us have done. The more well-known Anglo-American law of "play by the old rules". That's "case law," experts say, and judges must do it this way, but there are always pros and cons to everything, and it seems like there's never one thing that can make people happy without regrets. The same goes for "do it the old fashioned way". Let's look at an example first. One day in 1982, a British woman named McLaughlin was preparing dinner at home. When the clock pointed exactly to 6 o'clock, she was terrified by the rapid ringing of a telephone. She felt that it should be time for her husband and children to come back for dinner, and the doorbell should be ringing instead of the phone. She had an ominous feeling. as expected. When she picked up the phone, one said, "Ma'am, you must go to the hospital right now, your husband and 4 children are in the hospital, and there was a car accident at 4 pm!" McLaughlin immediately drove to the hospital. As soon as she entered the emergency room, she almost fainted. Her husband and children were separated from flesh and blood, especially the youngest child, who had died because of his injuries. McLaughlin was stimulated by this, and his spirit was devastated. Not long after, McLaughlin sued the driver of the accident, O'Brien, to the court. In addition to asking him to compensate for various direct losses, he also asked him to compensate for his own mental damage. Mai Tai said that her mental damage can never be healed, and nothing can beat the pain and stimulation of witnessing the tragic situation of her family! A lawyer who is very good at digging into the camp has worked tirelessly to find a number of "precedents" that make Mai Tai extremely excited in the numerous previous judgments of the British courts. However, when the court “reads” these precedents and the Mai Tai case at hand, it always feels that something is wrong Without exception, they saw the tragic situation at the scene of the accident, and Mai Tai was stimulated two hours after the accident, and not at the scene, but in the hospital. What does this mean? The judges proceeded to ponder a series of questions: If Ms. Mai's sister was irritated by the news two weeks later in Australia, would she be entitled to compensation? If you have the right, then there are relatives such as "seven great aunts and eight great aunts" who claim compensation for the same reason, what should I do? If the judgment is followed, can the court withstand so many lawsuits? Is this fair to the defendant? Who will dare to drive? Which insurance company dares to sell insurance? In addition, it is not easy to make those who are not in the right mind thinking day and night how to find a doctor to give false evidence that they have been hurt to death? two,… The conclusion is: if "the old rules are followed", the judgment seems wrong. Therefore, the judge of the British court, with a stroke of his pen, ruled that the situation in the Maitai case was different from the cases brought out by the lawyers, and there was a difference between them. "Difference", that's the reason. Mai Tai arrived at the hospital two hours after the accident. This is indeed different from the case in the precedent. Since the situation is different, there is no "same judgment" for Lishan. The judge told Mrs. Mai that the court must "do it according to the old rules", but only if "the case is the same." In fact, one can make "differences" between all cases, but the "differences" may be greater or lesser, and a lot depends on how one "reads" them, but this "difference" is not It has really become a skill in the hands of British judges. When they decide a case, they will consider many issues, instead of simply looking at the precedent as law and the case at hand. They say that the law must be "equal", but it must also be "fair". "
There is a habit of Westerners : no matter how small or small, it must be clear. If friends get together and have a meal, they have to make it clear who "pays the bill," and if parents give money to adult children, they have to say whether to "borrow" or "give it away"... There is absolutely no ambiguity. This habit , is also often seen in the laws of Westerners.
One day in the winter of 1805, in the forest of New York State, a young man named Pearson and an old hunter named Post were beaten by a fox because of the ownership of the Get up. That day, Pearson got up early in the morning, packed his bags and headed straight for the forest. Coincidentally, before he took two steps, he saw a golden fox shaking its tail in the distance. Pearson was full of energy and excited. Unusually, he swooped over with a shotgun... After one shot, the fox was covered in scars, but he was still able to limping away. At this moment, another shot knocked the fox to the ground. The old hunter Pust turned it into his bag. Pearson's eyes were burning with rage. He felt that Pust was too immoral, and he rushed up to grab the fox without saying a word. The fruit of victory". So, the two scuffled into a ball. When they
arrived at the judge, the judge said that although Post's "virtue" was almost a little bit, in law the fox could only belong to him. The reason was: although the fox was already lame Pearson has not yet had a firm grasp on the fox. This means that because the fox has been chased by Pearson and injured by him, it cannot be assumed that the fox belongs to him. The judge found, The ownership of wild animals is marked by "firmly grasping". Some people will feel that Pearson has almost obtained the fox in the process of capturing. It is unreasonable to think that he can "take the lead" later. But , Westerners sometimes firmly believe that the law must be "either or the other", and cannot make a vague judgment of right and wrong. Their deep concept is that the law cannot require that what should be done morally approves, but only how to meet the conditions of the law. ; Morality is a "high" requirement, and the law is a "low" requirement. Things with high requirements can be vaguely "aesthetic", while things with low requirements must be clearly defined.
"Fair" sharing of responsibilities
"Civil tort compensation liability" means that others have many rights, which must not be infringed arbitrarily, otherwise the loss will be fully compensated. There are several very important conditions for this responsibility, one of which is: the victim's loss and the infringer's behavior There is a "direct relationship". This means that it is indeed the infringer's act that caused the loss. If you can't find a direct causal relationship between the loss and the infringing act, then the infringer's mentality is that no matter how bad it is, the compensation for the loss Also has nothing to do with it. However, sometimes doing this, the victim may be too wronged.
Case:
Three people go hunting together. Summers is honest, while Theis and Simonson are slick. That day, the three made an appointment to hunt partridges. Someone was in charge of blasting the birds, and someone was in charge of shooting them, so Theis and Simonson told Summers that they had never missed a shot when they hunted, and that the "burden" of coaxing the birds could only be lifted by Summers. Summers accepted the task without hesitation. The crane and pigeon have a habit of flying when they must be very close to the bombardment. If it is in the grass, it is difficult for people to recognize it. In this way, Summers is really dangerous, but he is still "hard-working".
The accident finally happened. When Summers blasted a partridge, Theis and Simonson both raised their guns and fired, one bullet hit Summers' upper lip, and the other was right in Summers' eyes: the lips are not a problem, A few days later, he grew back, but his eyes were ruined.
Summers . However, there is a very important problem that cannot be solved. Whose bullet hit the eye? According to general legal reasoning, the plaintiff must prove exactly who did the "good thing" in order to claim compensation. Summers cannot ask for two people to pay compensation together, because after all, it was hit by a bullet, and it is obviously inappropriate for the two to pay compensation together. Based on this reasoning, Summers lost the case in the first trial, and the court said that Summers had to prove whose bullet was so "missing".
Although this reasoning can be established, it is too unfair to Summers. . When Summers was injured, it was impossible to judge whose bullet was it?! After thinking about it, the court of second instance gave such a statement: because the two defendants shot in the direction of the plaintiff at common fault, the two must prove that they were not themselves. If you do a "good thing", you can only compensate jointly. Since the two defendants could not testify against themselves, they were finally sentenced to share responsibility.
This case is a new starting point for US civil tort liability law. Since then, people have believed that the liability for compensation does not necessarily have to be conditioned on the existence of a direct causal relationship between the tort and the loss, because the essence of the law can only be the
"implicit clause" in a "fair" contract.
When he got Ropas, he sold him a gem for 100 pounds. Ropas has many kinds of gems, but the bezoar is lacking, and Chandler sold him this. Yellowstone looks amazing, Ropas loves it, and he will show it to everyone. However, an expert told him that the bezoar is a fake. After identification, it is really an eagle. Ropas sued Chandler. At the court , the
court found that, first, Chandler did not know that the thing was a counterfeit, and second, there was no agreement on the quality of the item in the 'old head contract' between the two parties. In this way, the court said that "the goods will not be returned and exchanged" and sentenced Ropas to reap the consequences. This happened hundreds of years ago. At that time, people especially believed in the concept of "strict agreement of the contract", which means that what the contract says should be done.
However, it is different now, the courts often say: we must pay attention to the "implied terms" of the contract. What are implied terms? Let's look at another example.
A hardware dealer named Gray and a man named Gardner did a scrap wire business: At that time, Gray showed Gardner a sample and said that it was this kind of scrap wire that he sold to him. Gardner pulled away 12 bales of scrap wire, and the invoice stated "12 bales of scrap wire, 10 shillings 6 pence per pound". However, when Gardner opened the package, he found that the quality of the goods was extremely poor, far worse than the sample. No way, Gardner had to go to court. The court was very heartening, saying that because Gray had produced samples, the contract contained an "implied clause" which stated that the wire should be of sellable quality. The court also stated in its judgment: "Guarantee Due quality is an implied term in every contract of this type, and buyers cannot be assumed to be buying things they don't want at all."
The British believe that the "implied clause" is a reasonable inference in law, and its purpose is to maintain the basic fairness and reasonableness in the contract transaction. The interpretation of the contract cannot be completely restricted to black and white, otherwise it will go against the economic operation of the society from this starting point. It relies more on the idea of fairness and rationality at a deeper level, rather than on the surface of "what to say" or "what to write"
Pain and Compensation
The most sensitive issue in civil compensation lawsuits is "how much money to pay". Sometimes this problem is easy to solve. But sometimes, the problem is extremely difficult to solve. If the loser says that he will suffer for a lifetime, this "loss" is hard to count.
In our case, mental "loss" is generally not calculated as compensation for money. We always find that it's really hard to count, and whether it's necessary to count is a question in itself. Westerners have a different view.
In 1980, an American woman named Waters developed a small lump on her neck. The lump was blue and purple, firm and tough, and although it was not painful, it was really frightening. In a large hospital, Dr. Hayshcock received Wootai. Hayshcock pinched left and right a few times, and then dragged Wotai into the operating room. The doctor was really quick, he cut off the lump in two sips, and then sent someone to the laboratory for biopsy. The biopsy results were normal. That tumor is just a benign tumor, trivial. However, the laboratory staff always felt that something was cut out, as if there were some organs and muscles in the neck. The next day, Wootai felt unbearable pain in his entire neck, and the left side of his head was swollen and bulging. The tester heard that his feet became weak. He quickly looked at the biopsy specimen again. He was convinced that Hayshcock had made a big mistake, with a piece of esophageal tissue an inch and a half long and an inch wide wrapped in the specimen! This means that Worth can
never : after Hayshcock knew, he quickly lifted Worth to the operating table again. When he opened Wotai's neck and clearly saw that there was a big hole in the esophagus, he couldn't stop trembling in his heart... In the end, Hayshcock had to ligate all of Wotai's esophagus and completely seal it off. This is a medical malpractice. Hayshcock has nothing to say and is willing to bear all medical expenses and actual losses. Wotai does not have any occupation, and her income will not be affected by her permanent disability. However, every time Wootai eats, he can only rely on the artificial pipe in his mouth to send the food into his stomach, and he has to squeeze the food into his stomach slowly and uncomfortably with his hands from his mouth to the chest. Horrible.
Medical bills and other actual losses are $59,000. Hascock immediately signed a check. However, Mrs. Wo said tearfully that in order to reduce the pain, she would spend her whole life trying to find a way. She made a list detailing what kind of pain she would have, what steps she would take to reduce it, and how much it would cost—she asked Hayshcock to pay $4 million.
The court finally awarded Hayshcock $2 million in damages to Walter. In all, at least 1.94 million was compensated for "pain". The court held that the price of "pain" could be staggering, as long as Mr. Waugh was reasonable.
Westerners believe that people's mental pain is sometimes incomparable to material losses, and the trauma of the soul sometimes makes it difficult for people to survive in life. Therefore, no matter how difficult the calculation of "pain" is, it must be calculated. In order to reduce suffering and avoid suffering, defendants and other irresponsible people must know the "true price" of "pain" in law.
Self-sweeping snow
In the United States, everyone really only cares about cleaning the snow in front of the door, regardless of other people's frost; I don't think it's morally wrong. Every time after a heavy snowfall, you will find a prosperous scene at the door of every American household. People dance with shovels and shovels, braving the severe cold to clean the snow on their doorsteps. Americans' homes are privately owned, and so is their land. If you buy a house, the land attached to the house is owned by the buyer. It's worth noting that almost every home has public sidewalks in front of or around it, and these sidewalks are also privately owned. Americans sweep snow off these sidewalks in front of or around their homes.
Some people would think that all this snow is swept away for their own convenience. But really ask an American, and he will tell you that it is not for their own convenience, but more importantly, for others not to fall at their doorsteps.
What's the mystery in it?
Legend has it that many years ago, a young man accidentally fell at the door of someone else's house. This fall resulted in a medical bill of ten thousand dollars. The young man suffered a comminuted fracture of the ischium! A few days later, the young man sued the homeowner for not shoveling snow, causing a hidden "organ" on the public sidewalk.
The case caused a lot of controversy. Some people say it was an accident; some people say it was the young man's own negligence. Can someone else be blamed when he falls? Others said that the homeowner was too indifferent and lazy, and that he was too tired to sweep the snow, so he had to be sentenced to compensate for all the losses... The court finally ordered the homeowner to compensate for all the losses. The court said that no matter how careless the young man was, he would not intentionally smash his sitting bones into pieces, and the homeowner did not sweep the snow, the ground was slippery, and the slippery ground was a potential danger, and the homeowner as the landowner was naturally obliged to eliminate it. Potential hazards on the ground.
The case has become a century-old wake-up call. When the snow is fluttering, the first thing Americans think about is how to sweep the public sidewalks clean. We can think that no matter how Americans sweep the snow in front of their doors, it is for the sake of their own wallets, rather than being enthusiastic about "taking care" of other people's frost, so their moral standards should not be too high praise. But Americans themselves believe that if moral means are used to appeal to devotion, not only will there be fewer and fewer people who care about other people's roofs, but fewer and fewer people will sweep the snow in front of their own doors; conversely, using Legal means, not only the latter will be everywhere, but also the former will gradually sprout.
bull and bear
Foreigners have found that the selfless enthusiasm of speculators in the stock market is like riding on the back of an ox. Some people vaguely pinpoint the tenacity of a cow with the greed of speculators. Since then, "bull" has become the nickname of speculators in the stock market rally.
According to legend, there is a person who is special in the business of bear skins, and always throws the bear skins in his hands before catching bears, while others throw them after catching bears. Obviously, there are also speculators who "save for work" in the stock market, so people call the trend-setters in the stock market "bears".
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Foreigners believe that both "bulls" and "bears" are not real investors in the stock market , but speculators with great intentions. They stir up the stock market and make people restless. When the stock market rises, the "bull" is rampant, and when the stock market falls. "Bear" is domineering, this is simply a sing-along of bulls and bears. So, both bull and bear markets are not good things.
Based on this concept, whenever a stock market is established, foreigners will first think about how to use the law to suppress the harassment of bulls and bears. The bulls and bears want to "win in chaos", and they will create a bull market and a bear market, and the task of the law is to control the madness of the stock market. Ups and downs. Therefore, the price limit system came into being.
Chinese people are now thinking of and even starting the price limit system, but the understanding of bulls and bears seems to remain the same. The author is alarmist: If the concept remains unchanged, and still think that the "bull market" is prosperous and the "bear market" is declining, then the bulls and bears may come out and wreak havoc again, making small households lose their money.
The "trial period" before marriage
It is said that the trick that a girl is good at before marriage is to use the "time" test to test whether the young man really loves her. Others say that this is to piss off the young man's appetite, let him know that "love" is not easy to get, so as not to mess around in the future. No matter how you look at it, people think that girls seem to be looking for a principle of emotional economics: the longer the test time, the higher the price of "love". People like to talk about these stories in a cultural tradition that emphasizes that "love is with the sky and the sun is with the sun".
Americans are straightforward. Whether it's romance or cohabitation, everything is simple and straightforward, without trouble, and without worrying about the price of "love". The girls said, "As long as you love me and I love you, that's enough." So they almost made the men test them in turn. There seems to be less "emotional shrewd calculation" between American men and women. In their culture, love has no "long or short" theory, only "is there".
Interestingly, the laws that should have appeared in the former culture were "settled" in the latter.
Getting married in America takes patience. From applying for marriage to getting a marriage certificate, it takes a few days of tossing, because the law generally stipulates that you must wait more than three days to issue a marriage certificate. This seems to mean that although men and women are exempt from "tests", the state cannot. A "test" for both sides. The registrar will not only ask you if you really want to marry "this person", but will also say to you, "I can't give you a marriage certificate right now, and it will take a few days to get the certificate. These days, you should carefully consider whether it is true. I want to get married." One sentence makes you "boil" for a few days sober. Americans make a clear distinction between what is outside the law and what is inside the law. Outside the law, the relationship between men and women can be turned upside down with you. No one will intervene; but within the law, a man and a woman should marry steadily. The more they love each other, the more they love themselves, the more the country will have to force the "sedative" when they get married. The result is the growth of new legal relationships, there will be children, there will be common property, there will be inheritance, and if it is a cross-border marriage, there will also be a relationship between the two countries. Reason, there will always be a lack of clear understanding of these, so it is necessary to arrange a "trial period" before marriage to hang the appetite of the young couple and let them understand that marriage is not purely a matter of two people. Let’s just say that this pre-marriage “trial period” may not be suitable for American men and women, because they don’t have the basis for our kind of “love test”. I attach great importance to the state of love and righteousness. In addition to the unilateral test of a woman in love, the legal test of "equality between men and women" in the country is really conducive to the indestructibility of marriage in the future.
The 'waiting period' for remarriage
Divorce and remarriage, and divorce after remarriage, are commonplace in the United States. But some people go on to say that the back foot is still in the divorce court of the court, and the front foot has entered the marriage registration office. This is the most unrestrained expression of American marriage. If you think "how can love be like a child's play", you don't understand the true meaning of the American "evergreenness of love lies in 'eternal newness'". Some people even say that 40 years old is like 60 years old for Chinese, and 60 years old for Americans is like 40 years old, because the former always wants to cry to death at the grave, while the latter has always "pulled anchor and set sail to open up new routes" like lightning.
This is not necessarily true.
American law sometimes stipulates that there is a "waiting period" for remarriage after divorce. According to this law, even if both feet leave the court divorce court, it will take several months and a half to find another new marriage.
American marriage law is strange, unlike other laws, this law always has to screw with the actual customs of Americans. The more you want to love one today and change another tomorrow, the more "hard" the law will make you. It seems to say: Before getting married for the first time, I will let you wait for a few days to calmly think about whether you are divorced, and you have to "open" again. Dare to play like this... American legislators have always believed that marriage law should pay attention to rational regulation. Americans are already full of desires and floods. If they are allowed to be unrestrained, they will eventually bring disaster to the "family" which is the foundation of the nation. Marriage is not only a matter of two people, but also a matter of family and state, which naturally requires the rationality of the law to suppress the desire for custom.
Unfortunately, the legislative ambition has not changed the unbridled behavior of American marriage. However, no matter what, Americans always divide "love" and "family" into scallions and tofu, so that they no longer have a sense of obligation and responsibility in the relationship, and they are also responsible for the rise and fall of "the whole family" in the family. The waiting period for remarriage is not irrelevant
ability to reflect
The first small essay in this book is called " Socrates' Prudence ", in which it talks about how Socrates was "stubborn", facing the unfair legal trial of ancient Athens, he still chose to die when he could escape from prison result of the execution. His student Ke Litong shouted: Fighting against unfair trials is the justice you pursue in your life, why don't you choose to escape from prison to achieve justice? ! Socrates is calm and convinced that escape from prison at this time is indeed a kind of justice, but obeying even unjust laws is also a requirement of justice, otherwise everyone will use what they think is "justice" as an excuse to destroy the social order. value, the latter value may be more important than the former at this time.
The story of Socrates is a historical metaphor for the ability to introspect.
Since then, Westerners have always maintained a clear and critical awareness of what is approved. When cheering for the emergence of one kind of "fairness", one wonders whether it leads to another kind of injustice; when one kind of "justice" appears popular, one wonders whether it leads to another kind of injustice. To the law, they continued the same gesture.
In 1066, the Normans conquered the British Isles, established the British Empire, and sent various judgments by the Royal Circuit Court. These judgments became known worldwide as common law (a type of case law). After many years, while many people praise the common law as being seamless and clear, some say it is rigid and slow, because society is changing with each passing day, and it is still traditional. This finally gave rise to another set of case law (equity). Equity and common law are very different in content, but they complement each other.
In the 19th century, when people were amazed at the market civilization, especially the legal support behind it, some people said that the law did not bring about substantive universal justice, because it smuggled the surplus value in the hands of the laborers to the exploiters. This has led developed countries to think secretly about how to share the welfare and obligations of society, and how to fight against discrimination to achieve a new fairness in society. Even today, when everyone insists that the rule of law means that everything in the world, regardless of its size, is determined by the law, and that the rule of law is the ultimate ideal of human beings, some people are worried about the situation in which Western society is overwhelmed with lawsuits and the law is inexorable. , and vowed to find the management essence of "harmony is the most precious" and reconciliation in eastern society, especially in ancient eastern culture. This also reminds legislators to pay attention to the flexible mechanism of the law, which
is for Socrates' choice of the law to set its purpose, when people believe that the law is objective and neutral, and only when the case can be judged impartially , while others assert that the law sometimes contains autocratic murderous intentions, it has no necessary connection with democracy, and the judgment can only be exchanged for another autocracy. This eventually prompted Westerners to completely deny the legal qualifications of Nazi German law, and thus choose fairness and justice above the law.
It doesn't matter what Socrates chooses, what matters is his reflection: when he knows a justice, he reflects on the opposite justice . In the author's opinion, the vitality of the resulting Western legal culture lies not in whether it is the perfect rule of law, but in its balanced self-reflection. In fact, the healthy development of legal culture requires people's constant introspection.