英美法判决书的特点

CHARACTERS OF ANGLO-AMERICAN JUDGMENTS

 

英美法中的判决书一般称为司法判决书（court reports），包括官方判决书（Official Report）和非官方判决书（Unofficial Report），其中官方判决书是法院将判决结果印成的书面判决；而非官方判决书（Unofficial Report）则是指民间出版商将判决整理后出版成册，内容除了判决内容以外，还会请专家整理并加上与本案有关的注解、法律条文、相关法院判决等，其参考价值大于官方判决书。

 

Official or unofficial reports of cases decided by a court or by one or more courts, giving in full the opinions rendered in the cases, usually including concurring and dissenting opinions, and having headnotes or syllabi prepared officially by the court reporter or unofficially by an editor of the publisher’s staff.

一般而言，英美法中的判决书由以下几部分构成：

争议焦点（Issues）

诉讼过程（Prior proceedings）
事实（Facts）

双方主张（theories of parties）

说理（reasoning）

判决（holding）
可适用法律（applicable law）

结论（conclusion）

 

上述八部分只是英美判决书的大致构成，一份英美法判决书一般都不会超过这几个部分，但也有可能不包括所有，顺序也可能有所不同。

01判决拘束原则

判决拘束原则（Stare Decisis；The Doctrine of Precedent），也称遵循先例原则，是英美法中一项最重要的原则，也是英美普通法系对全世界法治最大的贡献之一。可以说，该原则是英美法律制度的核心，它是指在同一系统的法院中，对于相类似事实的案件，于不同级别法院之间，下级法院必须受上级法院判决拘束，同级法院之间，后判决受前判决拘束。

Stare decisis

The doctrine or principle that decisions should stand as precedents for guidance in cases arising in the future. A strong judicial policy that the determination of a point of law by a court will generally be followed by a court of the same or a lower rank in a subsequent case which presents the same legal problem, although different parties are involved in the subsequent case.

 

判决拘束或者说遵循先例原则有助于保持法律稳定，限制法官裁量权，从而达到规范人们行为，漫踪公众司法公正期待的目的。然而这种制度下，也有可能为了维持稳定性而牺牲个案的公平正义，为了防止这种局面，英美法中一般通过推翻原判决（overrule）和法官解释（construction）已有判决的方法来弥补。

同时，判决书中并不是全部内容都有拘束力，其中具有判决拘束里的部分叫做Ratio Decidendi：

Ratio Decidendi

The reason for deciding, the reasoning or principle, or ground upon which a case is decided.

 

02英美判决书中的逻辑推理

众所周知的法律逻辑推论方法就是“三段论”，英美法的判决书也是充分体现这种逻辑的精髓。英美法判决书中的判决内容往往由三个部分组成：

法律（Rule of Law）；

事实（Finding the facts）；

结论（Decision）。

对应三段论中的大前提、小前提和结论。

 

举例来说，以下是一份英美法中判决书中的观点：

A promise given for what the promisor is already bound to do is without consideration and void.

允诺人允诺既存义务之事，是没有对家的无效允诺。

其中的大前提是法律（Rule of law）：A promise without consideration is void. 没有对价的承若无效，

小前提是事实：A promise given for what the promisor is already bound to do is without consideration. 承诺人承诺既存义务之事是没有对价支持的。

最后结论：（Therefore，such a promise）is void. 所以该承诺无效。

然而这也不是定式，法律不是数学，简单带入公式即可得出答案。就像美国著名法官J.Holmes 霍尔姆斯曾说The life of law has not been logic; it has been experience. 法律的生命并非逻辑而是经验。英美法判决在历史的沿革和发展中也紧跟时代步伐慢慢演变，在个案公平和时代公益综合思虑权衡并不断调整规则方向。

最后我们欣赏一下丹宁勋爵在1970年Hinz v Berry案中的所做的著名判词。1964年本案中的原告，妻子在一起车祸中目睹自己的丈夫丧生，孩子受伤，生活和精神都受到双重暴击。于是，妻子以自己和孩子的名义提起诉讼，要求被告支付经济和精神赔偿，其中一审法官判令被告支付原告精神损害赔偿4000英镑，被告觉得赔偿过高，于是上诉到丹宁勋爵这。于是，在这篇判决中，丹宁勋爵不仅要论证支付精神损害赔偿的合理性，还要对本案中的赔偿额也做充分的说理。很多人都以为判决书就是八股文，相信这篇诗意的判决会改观你的看法。

 

It happened on 19th April 1964. It was bluebell time in Kent. Mr. and Mrs Hinz, the plaintiff, had been married some ten years, and they had four children, all aged nine and under.

事情发生于1964年4月19日，肯特的蓝铃花正在盛开。Hinz先生和夫人（原告），结婚大概有十多年，他们有4个孩子，都还不到9岁，最小的还不到一岁。

 

The plaintiff was a remarkable woman. In addition to her own four, she was foster mother to four other children. To add to it, she was two months pregnant with her fifth child.

原告是一个了不起的女性，除了她自己育有的四个孩子之外，她还是其他四个孩子的养母，而且，事发当时，她还怀着第五孩子，有着2个月的身孕。

 

On this day they drowve out in a Bedford Dormobile van from Tonbridge to Canvey Island. They took all eight children with them. As they were coming back they turned into a lay-by at Thurnham to have a picnic tea. Mr. Hinz was at the back of the Dormobile making the tea. The plaintiff had taken Stephanie, her third child, aged three, across the road to pick bluebells on the opposite side.

这天，他们驾着贝德福德旅游汽车带着8个孩子从堂布里奇到坎维岛。回来途中，他们在Thurham进行下午茶。Hinz先生在车后面煮茶。原告带着他们的第三个孩子Stephanie，三岁，去马路对面采蓝铃花。

 

There came along a Jaguar car out of control by Mr. Berry, the defendant. A tyre had burst. The Jaguar rushed into this Lay-by and crashed into Mr. Hinz and the children. Mr Hinz was frightfully injured and died a little later. Nearly all the children were hurt.

此时，被告Berry 先生驾驶的一辆捷豹车因一个轮胎爆胎而失控。捷豹车冲进这个临时停靠地并撞向Hinz先生和孩子们。Hinz先生当场受伤严重，不久后死亡，几乎所有孩子都受了伤。

 

Blood was streaming from their heads. The plaintiff, hearing the crash, turned round and saw this disaster. She ran across the road and did al she could. Her husband was beyond recall, but the children recovered.

血从孩子们头上流出来。原告听到声音后转身就看到了这场灾难。她跑过马路尽力抢救，她的丈夫已无反应，幸好孩子们已经恢复。

 

An action has been brought on her behalf and on behalf of the children for damages against the defendant. The injuries to the children have been settled by various sums being paid.

于是她以自己和孩子的名义提起诉讼，并且要到了不同程度的补偿。

 

The pecuniary loss to the plaintiff by reason of the loss of her husband has been found by the judge to be some 15,000 pounds; but there remains the question of the damages payable to her for her nervous shock – the shock which she suffered by seeing her husband lying in the road by the van dead, and the children strewn about.

原告的经济损失原因是因为失去了她的丈夫，法官判给她15000英镑，但仍存在的问题是应赔偿她受到的精神上的冲击——她看到她的丈夫被货车撞死和孩子们被撞伤所受的冲击。

 

The law at one time said that there could not be damages for nervous shock; but for these last 25 years, it has been settled that damages can be given for nervous shock caused by the sight of an action, at any rate to a close relative.

曾经一度法律不给予精神损害赔偿予以救济，但在这25年里已经有所松动，已经有支持对近亲属亲眼目睹事故发生后所造成的精神损伤进行赔偿的案例。

 

Very few of these cases have come before the courts to assess the amount of damages. O’Connor J fixed the damages at the sum of 4,000 pounds for nervous shock. The defendant appeals saying that the sum is too high.

本案的一审法官O’Connor 法官判给原告精神损害赔偿4000英镑，被告觉得金额太高而提起上诉。

 

美国纽约州南区联邦地区法院判决

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

 

当事人部分省略

 

LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE

美国联邦地区法官  劳拉•泰勒•斯韦恩

 

After a more than five month trial, thirty-one counts of the above-captioned[8] Superseding Indictment[9] were submitted to the jury, and Defendants Daniel Bonventre (“Bonventre”), Annette Bongiorno (“Bongiorno”), Jo Ann Crupi (“Crupi”), Jerome O’Hara (“O’Hara”) and George Perez (“Perez,” collectively, “Defendants”) were convicted of each of the crimes with which they were charged.  The charges included: conspiracy to defraud investment advisory clients and conspiracy to commit securities fraud; conspiracy to engage in accounting fraud and to defraud banks; conspiracy to commit tax fraud; securities fraud; falsifying the records of a broker-dealer; falsifying the records of an investment adviser; causing a false and misleading filing to be made with the Securities and Exchange Commission (“SEC”); bank fraud; making and subscribing to false income tax returns; corruptly obstructing the lawful administration of the internal revenue laws; and tax evasion.  Fewer than all of the Defendants were charged in some of the counts.

经过五个多月的审理，在向陪审团提交上文文首所述替代起诉书的三十一项指控罪行后，被告丹尼尔•布恩文切（“布恩文切”）、安内特•布恩乔诺（“布恩乔诺”）、乔•安•克鲁皮（“克鲁皮”）、杰洛米•欧哈拉（“欧哈拉”）和乔治•佩雷兹（“佩雷兹”，上述人员合称“被告”）被判犯有各自被指控的每一项罪行。被控罪行包括：合谋欺诈投资顾问服务客户与合谋实施证券欺诈；合谋从事会计欺诈及欺诈银行；合谋实施税务欺诈；证券欺诈；伪造证券经纪经销商（券商）记录；伪造投资顾问记录；造成他人向美国证券交易委员会（“证交会”）做出误导性虚假申报；银行欺诈；编制并签署虚假所得税申报单；恶意阻挠美国国内税收法律的执行；避税。部分被告被判犯有上述部分罪行。

 

下面的判决书部分，没有翻译，大家可以自己阅读感受一下：

I would like to pay at once a tribute to the insurance company for the considerate and fair way in which they have dealt with the case. In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant.

 

There are only two cases in which the quantum of damages for nervous shock has been considered. One is Schneider v. Eisovitch [1960] 2 Q.B. 430. The other, Tregoning v. Hill, The Times, March 2, 1965. But they do not help us here. Somehow or other the court has to draw a line between sorrow and grief for which damages are not recoverable, and nervous shock and psychiatric illness for which damages are recoverable. The way to do this is to estimate how much Mrs. Hinz would have suffered if, for instance, her husband had been killed in an accident when she was 50 miles away: and compare it with what she is now, having suffered all the shock due to being present at the accident. The evidence shows that she suffered much more by being present. I will consider first the grief and sorrow if she had not been present at the accident. The consultant psychiatrist from the hospital in Maidstone said:

 

"It is common knowledge that there is a 'mourning period' for all of us, and that normally time dispels this. In the average person it might be a year, but in a predisposed person it can be greatly prolonged. ..."

 

Mrs. Hinz was not predisposed at all. She was a woman of great capacity, level-headed, hard working, happily married. She would have got over the loss of her husband in, say, a year. Consider next her condition, as it is, due to being present at the accident. Two years after the accident, the consultant psychiatrist said: "There is no medical doubt at all that she is suffering from a morbid depression; she is now officially ill." He went on to give some of the symptoms. She said to him: "It does not seem worth going on. I feel I cannot cope at all. I get so dreadfully irritable with the children too. It is wrong but I feel like killing him," that is, the posthumous child. The consultant went on: "She feels exhausted, has frequent suicidal ruminations and at the same time is covered with guilt at being like this." The posthumous baby "now saddens her even more because it cries 'Dad, Dad,'" and one of the elder children persists in saying "You have not got a Dad"; and then the other fatherless children join in the chorus." The consultant concluded: "In other circumstances I would probably have brought her into hospital, at least for a rest, but possibly for electrical treatment and it may come to that yet." At the trial, five years after the accident, she frequently broke down when giving her evidence. She brought the children to court. They were very well turned out. The judge summed up the matter in this way: "I am satisfied that she was of so robust a character that she would have stood up to that situation, that she would have been hurt, sorrowful, in mourning, Yes; but in a state of morbid depression, No." He awarded her oe4,000 on this head. There is no suggestion that he misdirected himself.

 

We can only interfere if it is a wholly erroneous estimate. I do not think it is erroneous. I would dismiss the appeal.