The law knowledge and social values

                                     Jia Zongda, Shi Zhongxing, Julie, Wu Zhijun in Shanghai in December 28, 2010

 

This paper outlines as follows: (1The commonsense law): that the law has common sense, and a young man comparative history, through the legal knowledge, created a great code for all mankind, and our similar code has not yet completed set, while talking about the legal thinking and legal person specific professional (2) social value of law: To sum up the law is justice philosophy, legal justice is the justice of procedure, justice delayed is justice denied (3With its common sense) law, philosophy, normative, guiding and ubiquitous and rich and colorful: introduction of the legal system China, two big legal system of the world, and the conclusion is the law to the common sense, philosophy, normative, guiding and ubiquitous and rich and colorful.

Common sense, a law

Common sense, there are two meanings: it refers to the general knowledge, but also refers to a rational person and rational knowledge, and talk should master the knowledge from the rational, such as etiquette, traffic common sense, etc..

The so-called law of common sense, there are two meanings: it refers to the general knowledge of the law, but also refers to the legal knowledge to a rational person reasonable, namely the law should grasp from the rational knowledge. This is the legal knowledge, legal common sense.

　　1The great code, the inevitable creation come from legal knowledge of the incidental learning: there was a young man in history, 1769Years8Month15DayBirth.1779Year only10Years to enter the military academy,1785Years16At the artillery ensign. Once, because of a bagatelle was placed in solitary confinement, in the brig, he stumbled across a thick "Char J Martin Ni code" (East Rome emperor Char J Martin Ni period is the A.D.6The compilation of ancient Rome law reflect Europe's first system complete code), he out of knowledge learning, read and remember the majority of content.

　　15Years later1800Years, in this young people to become the country's first ruling the following year, he was15Years ago by legal knowledge learning inspiration, personally ordered and presided over the formulation of a code, the code1804Last year and the full release, become a human history of the great code, code in classic.

In the process of formulating the code, the31Young man, dear president, to participate in the drafting of publicity97Second, many terms personally participate in the discussion and finally determined, but his "Justinian code" have one's words at hand, the load one's pages with references to participate in the drafting of the civil code, more professional jurists, be frightened and change color as the acme of perfection.

Which country is this? Who is this young man? This is great code a what kind of both common sense and classical?

Yes, this is the French Napoleon personally presided over the formulation and to promote through the publication of the "French Civil Code", also called "the Napoleon code".

"The Napoleon code" great to what extent?

(1Napoleon1821Years5Month5DayDied on the island of St Helena, dying before the summary, evaluation of himself:"The forty time in my life for the glory of victory and glory, only the battle of Waterloo could Ashes To Ashes; but I have a contribution will go down to posterity, and this is my "Napoleon code"."

(2) "The Napoleon code" in the1804Years3Month21DayThrough, apart from the general rules, divided into three parts, the first is2281The first part, respectively"Human law", second series"Method"And the third series"To obtain all kinds of methods of ownership".

(AIn France, the code) has been revised many times, but the main principles and basic contents in200Years later still in the application;

(BThe current civil code) today in many countries and regions, directly adopting the code, such as Belgium, Luxemburg, the Canadian province of Quebec, American Luis Anna S;

(CIn many countries the code) which was formulated in the civil code, such as Denmark, greece;

(D) many countries civil law influenced by the code, such as Germany, Switzerland, Portugal, Spain, Chile, Argentina, Brazil etc..

Napoleon said, he couldn't help to say some infrastructures, simple a few pieces of his legendary or famous:

We know that Napoleon said:"Don't want to be captain of the soldier, is not a good soldier."Also said:"China is a sleeping lion, once awake will shake the world."Then said:"Thank God it sleeping,, let it stay asleep."Also said:"In the battlefield of love, the only winning secrets escape."A woman he loved life, who married and have children of their own Josephine.

From history to today, love he hated him were the culmination of hate, to the extreme, Napoleon1798Years of Egyptian expedition defeated trapped,1799Years before finally safe return from Egypt, when he returned safely, a congressman be glad over death; in St. Helena, he wanted to visit a sick officer, but the doctor strongly discourage said: you do not go, otherwise the people will be too excited to death.

Napoleon has a famous saying:"From the sublime to the ridiculous is great, there are only one step."

2,Has not yet completed the Civil Code: Law Chul language cloud:"Through the civil law are the world." Again

Cloud:"To the study of law, civil law should learn."Our founding sixty years, until today has not yet completed the formulation of a complete code of civil law, and civil law can only be found in phases to develop sustained thirty years of law: "marriage law of the people's Republic of China",1980Years9Month10DayThrough,1981Years1Month1DayExecute.2001Revised; "general rule of the civil law",1986Years4Month12DayThrough,1987Years1Month1DayImplementation; "contract law of the people's Republic of China"1999Years3Month15DayThrough,1999Years10Month1DayImplementation; "property law of the people's Republic of China"2007Years3Month16DayThrough,2007Years10Month1DayImplementation; "the people's Republic of China Tort Liability Act"2009Years12Month26DayThrough,2010Years7Month1DayExecute. We call living with the Chinese people and the integrity of the early completion of work in civil law making.

"The Napoleon code" of China's relevant laws also has very big effect: as we know, the freedom of contract is the basic principle and the soul of the civil law, as the law Chul language cloud:"Contract is the parties' legal.""The Napoleon code" article1134The provisions:"The contract established according to law, have the effect is equivalent to the law in the contract the parties ."China's "contract law" article8The same provisions:"A lawfully formed contract is legally binding on the parties. "China's "property law" enacted many arguments when, Napoleon in fact200Many years ago and then French jurist have resolved. Many other, This is not the only one., not the.

Every one of us, regardless of life and work, need law knowledge, the lack of legal knowledge and legal knowledge, light is funny jokes, heavy on the life and work will produce negative or even great impact.

For example, give a very simple example of common sense,"The subject of the"How to read? Read"Biao di de"I read"Biao de de"? If the read into the latter, may think that writing itself is wrong, more of a "". This is our country in the legislative practice, some individual laws and review appeared in an episode of common errors.

In fact, in China legal knowledge environment, reading is normal to read the wrong. From a legal perspective,"The subject"Is right the parties contract, generally divided into tangible property, intangible property, labor, work;"The subject matter"Is the object of contract for the sale, generally refers to an object or goods etc..

3,The law and the legal thinking: the law is a rigorous professional, legal person refers to the legal duty

The main industry practitioners, and legal thinking is the law in accordance with the law of logic of specific professional way of thinking.

Legal thinking of ordinary human thought and legal persons have what different? For example, see a clock on the wall hanging to go, say"This watch is broken"And said"This clock doesn't go"What's the difference? What is the general thinking, what is the legal thinking? Yes, the legal thinking is the only requirement description see "clock doesn't go", but Is it right? "Watch out", without the certificate is not known, so the law the legal person's thinking is that thinking. We can clearly see from the case, if it proved, after what proof, how to demonstrate the extent, is of crucial importance to the law, sometimes even directly determines the gain and loss of life and property.

Let's look at the legal thinking of the legal person and the ordinary people generally thought interesting differences: a person to own property arrangement to the lawyer: married to"The seven year itch"Mr., work, his wife does not work, the accumulation of property number, a son; he was the marriage pain, but was too shrewd calculation, know knowledge of law, divorce will lose half of the property and dare not, the purchase of real estate, to put his name also dare not, put his wife's name was unwilling, so decided to put in the son. Here need to be mentioned in an episode of law: from a professional point of view, divorce is an effective method for lost property, there are many vivid examples for several times, dozens of times a divorce from richest to bankrupt the world. And return to this inquiry itself, to see how the general thinking of ordinary people? Is it right? More from emotion, morality, personality evaluation? To see how the legal thinking of legal person? Unilaterally disposal civil rights characteristics, legal thinking will never adults of the common property of the couple's legal effect, legal effect of the gift to consider, analysis.

Therefore, legal person is the ordinary people, legal person also has a general thinking of ordinary people, but in legal issues, legal person's unique thinking is rigorous, professional way of thinking, the legal thinking of legal person level, directly affects and determines and reflects its professional level.

Two, social value of law

1, law is justice philosophy: the philosophy of justice is on earth is the definition of non law, and the legal definition and with the philosophy and the value of justice.

(1) in the law theory, the above mentioned "Justinian code" of the "institutiones" spoke:"The law is on the just and the unjust science."From philosophy to the philosophy of law to the law, and from the law to the law philosophy to Philosophy and fusion of separation, it is development and research process of law.

(2) the value from the law, order, freedom, efficiency, justice is the value of law, order is the basic value, and justice is the highest value.

(3) law as the legislative practice philosophy of Justice: the legislation of our country there are many such examples, less than one one and the famous example, foreign here are two well-known, brief description:

(AFrance):1789Years8Month26DayBy the time of the Convention, through the "Declaration of human rights", namely "Declaration of the rights of man and of the citizen", is a part of the French constitution, the200Many years ago, declaration of the fundamental principles of human rights, the principle of people's sovereignty, separation of powers and the principle of rule of law, that legislative power belongs to the people, equality before the law, due process of law, legal principle of crime and punishment, the presumption of innocence, law of non retroactivity of the law norms and requirements.

(BUSA): "the constitution of the United States", commonly known as "USA federal constitution" or "American constitution", in1787Years5On a convention formulated, the same year9Month15DayThrough,1789Years3Month4DayFormal entry into force, the total7A, calendar200For many years, increased only27Amendment; USA constitution has two purposes, namely the limit of power and security of the people's Government of freedom;200The basic principle for years still follow as: separation of the three powers, the federal system, the constitution is supreme, equality.

(4As the judicial practice) law justice philosophy: all the justice practice, is the law in the judicial practice the philosophy of justice, which is one of the typical public interest litigation, such as USA vs. America tobacco companies suspected of fraud consumers, and require huge amounts of compensation at 100 million, billion dollar; in1998Years of lawsuit, America major tobacco companies agreed to in the future25Years of compensation2460Billion, as sick smokers treatment costs. This is the law philosophy of justice of judicature, reality, life.

2The justice of law, procedural justice: the above has the legal thinking, legal person is the proof of thinking, if it proved, after what certificate, how to demonstrate the extent, is of crucial importance to the law, sometimes even directly determines the gain and loss of life and property, as the law philosophy language cloud:"Justice must not only be done, but should be achieved in the visible way."Legal justice is the justice of procedure, procedure justice procedures, namely procedure outperforms the entity, its essence is not to openly illegal public to private without proof or proof of illegal.

A common language and a famous America law, you may know that the first half of the sentence, you know what?

"You have the right to remain silent. If you don't keep silent, everything you say can and will be used against you in court as evidence. You have the right to trial lawyers aside consulting. If you cannot afford an attorney, the court will offer you free lawyer. Do you understand these rights?"

You know what the name of this famous legal knowledge of language? Yes, this is the famous"Miranda warned", also known as"Miranda warned".

Do you know"Miranda warned"The origin of it?

Miranda is a America youth,1963Year by the Arizona police arrested for offenses; accept the police station on two small from time to time, to sign a confession file; but in hindsight, he argues, his lawyer in court also protested: "Miranda does not know the Fifth Amendment of the constitution right of parties"Nor shall be compelled in any criminal case to be a witness against himself"Therefore, the frank, file cannot be its guilt evidence. This famous"Miranda v. Arizona"American, fought all the way to the Supreme court;1966Years, make a ruling the Supreme Court Chief Justice Warren, announced that the Miranda case is invalid. Although the police to other evidence, Miranda to his girlfriend about crime experience witness evidence, also proved that Miranda was guilty, but since then, i.e.1966Years, all police interrogations American in before, no matter how busy, not in a good mood, tense situation, if the arrest people forget that a few common key words, the suspect's confession at the hearing will be disallowed.

This is the law of justice is one of the typical case of procedural justice. From the legal profession, legal fact is the evidence to prove the fact, maybe the truth is not always the original state, because the real state of fact almost impossible after replication and restoration; certain facts as life is only a legend in the fact, many rumors are produced in replication and come very naturally to restoration "lie", and even become a "true", hurt ourselves and others.

Psychology is a famous people pass language test: ten people, or at the time or the next day or every time, the statement of one thing, started from the first event in itself and the core elements of language, delivery to the final, almost lose one's beyond recognition.

Therefore, the procedural justice is the visible justice, also because the natural state of fact almost can not copy and recovery, and the proof of fact but It is evident to anyone, one of the main points of law lies in realizing the substantive justice, procedural justice in order to.

But in the process of litigation, proof standard of criminal and civil law of procedure justice is different:

The last century ninety's America"The trial of the century"The Simpson case is a typical example:1994Years6Month12On the evening of10:35America, California Losangeles resident Schwab walking the dog in the street found a bloody dog claws, took it home.1Hours later, the neighbor Boz Taipei couples go to Schwab's house, saw the dog restlessness, took it to find the owner.6Month13Day0:00Boz, the dog Taipei couples to Lampang Di Da Jie875Here, the walls, the doors open, the dim light of a corpse.0:09The police received the alarm, rushed to the scene, found from the body10FootFar also lay a body, man at the foot of a brown leather gloves and a left hand knit cap. The policeman recognized the woman is Simpson white35Year old Nichol Nichol, man is man25Old Goldman. And that the bleeding paw dog is Nichol, named Akita. Simpson is listed as the suspect.

Olensall James Simpson is America make known to every family a big star, was born in a poor family, small time also legs deformity, he depends on his own personal struggle, from an ordinary black boy into a gallop football star. Bid farewell to the field, and as a television sports commentator, and starred in the TV drama, we are very familiar with the USA movie "Cassandra bridge" in the black police officer is a play. Simpson rely on their own efforts, become rich, he's married to a white woman, become USA black idol, is relying on the personal struggle to change the situation, a model into the upper society, in American society regarded as relying on the efforts and struggle to achieve the perfect "a typical representative of the America dream".

Simpson in the criminal procedure,1994Years6Late last month, the Losangeles city police investigation, district attorney representing California people to the court of Simpson put forward two first-degree murder charges, the prosecution's evidence are: Simpson has a motive, he from Nichol18Years old with its acquaintance, two people a few, which19Once the violence, and that they should kill her, and killed Nichol and her boyfriend, with Simpson's character and behavior logic; Simpson had opportunity, at the time, according to the agreed time to pick up the Simpson car driver to his house many times after, ring the doorbell nobody reply, half an hour later, the driver saw a very similar Simpson entered the house, again press the doorbell, Simpson; Simpson is a major crime suspects, in the Simpson Mustang and residential found bloodstains, were at the scene and Simpson home found just become a pair of blood stained gloves, Simpson's right hand in the day cut, Simpson the same blood type. And the blood stained with blood, a pair of sock Nichol found in Simpson's bedroom, in Simpson home to find Nichol and Goldman's hair gloves, Simpson's hair and the car carpet fibers that knit cap found at Goldman's feet. The defense evidence mainly has: the prosecution the main scene evidence, the case did not find the murder weapon, and no witnesses at the scene; the prosecution asked Simpson to court to try the bloody gloves, under the watchful eyes of the people, not wearing gloves is up, one size does not fit his hand, so can't be his crime gloves; police illegal search, not made the search warrant, illegal collection, preservation of evidence, the program method; main police officer Forman is shown with racism obviously; the police provide a double stained with the blood of the socks, is the proof for the laboratory blood test is not reliable product.

Until the prosecution and defence in court for the final summary, the case is still a whirling. After474Day of trial,1995Years10Month2DayIn the analysis, the jury113Witness1105Affidavit, unanimously ruled Simpson is innocent. At that moment the ruling announced, almost all Americans including President Clinton stopped work and activities, through the USA major television network to watch the live broadcast award announced. Simpson's criminal case verdict, caused huge controversy in America and even the whole world, but people respect the legitimate, comprehensive, fully embodies the justice of procedure law ruling.

Simpson in the civil action, the conclusion is just the opposite,1994Years7Month27DayAnd1995Years6Month12DayIn civil litigation, the two victims families of Nichol and Goldman respectively to the court of Simpson mention illegal killing people and for damages, the case1996Years9Month17DayOfficially began hearing, although juries and judges are different, but the main proof of Simpson's civil procedure and criminal procedure is basically the same.1997Years2Month4Day, civil jury unanimously ruled, that Simpson was responsible for the death of the two victims, and ruled that Simpson compensation the plaintiff850Million, and to two families of the victims of the payment1250Million dollars in punitive compensation, total compensation of the victim's family3350Million dollars. For such conclusions contrary to law, people also respect, because it is also valid, comprehensive, fully embodies the justice.

Why the same evidence, the facts will draw the opposite conclusion in criminal litigation and civil litigation? Because according to American law, criminal standard of proof is"Beyond a reasonable doubt"That is"Is no doubt"While civil certificate standard"Preponderance of evidence"That is"May be greater than may not". In the criminal procedure, justice American Supreme Court Holmes:"The criminals unpunished and government mean illegal behavior compared to sin, much less."

The legal philosophical language cloud:"In court, the only evidence, no facts."The cloud:"There is no procedure justice, there is no substantive justice."The evidence here refers to the real evidence, if it is a false or fabricated evidence, is unable to achieve the proof, but a false evidence, need another ten false evidence to supplement, but still could not be added to achieve proof; the procedures here refers to the fair procedure, realization of procedural justice external the, a fair procedure, is the premise and basis of substantive justice.

We Is it right? Think so too harsh? Don't be so harsh and what will happen?

3, justice delayed is justice denied: here mainly refers to the legal norms and preventive function in advance should be far greater than the post adjustment and recovery function, also because of the real state of facts above has, almost can not copy and recovery, the British philosopher Bacon said: "a non justice judgment deeply than many unfair the behavior of damage, because these unfair behavior but dirty water, rather than just the referee the water corrupted."

The Du Peiwu case is typical of very:1998Years4Month22DayShilin County, deputy director of the Kunming Municipal Public Security Bureau of Kunming City Public Security Bureau police Wang Xiaoxiang and Wang Junbo were both shot in an abandoned police micro Changhe brand inside the van, the case for the shot, two men and women both died in the car, Wang Xiaoxiang's husband Du Peiwu is Kunming city public Security Bureau police, so are anxiously looking for his wife Du Peiwu was as a major crime suspect: he seems to have a motive, the relationship between jealousy two dead; he seems to have the time of the crime, this time no one can prove him where he was; and technology detection with the same conclusion: forensic experts that Du crime suspects cannot be excluded, polygraph test conclusion on its scientific instruments Du Ying is the knowledge or involvement in crime,10Police dog include3The only national exploit dog43A smell identification,41Determination of odor and Changhe Automobile Du smell the same. So, despite not sure the weapons, too many questions, or after such a typical case of torture to extract confessions, Du were convicted in the confession and the confession;1999Years2Month5Day, Kunming City Intermediate People's court sentenced Du Peiwu death immediately, reasonable defence Yunnan Province Higher People's Court of second instance given the lawyer and the specific circumstances, to death with a two-year reprieve.2000Years6Month17DayYang Tianyong, the murderer kill carjacking gang in the other cases were arrested, the murder weapon pistol also looms, the implementation of the criminal gang.2000Years7Month12Day8:00, Du Peiwu acquittal, seven feet tall, wail, choke with sobs, the presence of the audience without feeling; Yunnan province high court judge to read Du Peiwu and judgment:"According to the new evidence in the case has mastered, that Du Peiwu is innocent, acquit Du Peiwu."Prior to this, in addition to Du Peiwu's lawyer, and he himself, almost everyone thinks that Du is a murderer, should kill without forgiveness.

Also has a very typical case: She Xianglin and She Xianglin, Hubei province Jingshan county,1994Years1Month2DayZhang Zaiyu, his wife missing, Zhang's family suspected by her husband killed, and from then until the case is correct, and she has been outrage"A life for a life".1994Years4Month11DayIn the county, Chong Cun Lu found a pool body, was identified as she his wife; then, the same although the case has too many questions, she was convicted in confession and the confession.1994Years10Month13DayHubei Province, Jingzhou district court trial, She Xianglin was sentenced to death immediately;1995Years1Month19DayThe Supreme Court of Hubei Province, the abolition of first instance, remand;1998Years9Month22DayBecause of administrative divisions, she, the Jingshan county court and the Jingmen City Intermediate People's court two trial, sentenced to15Years in prison, deprivation of political rights5Years; she in Hubei prison in Shayang.2005Years3Month28DayShe's wife, Zhang Zaiyu"Death11Years later, suddenly came home from Shandong;2005Years4Month1DayShe was released;2005Years4Month13DayShe was acquitted. Prior to this, the same is almost everyone thinks she is a "killer", in addition to his own, only believe him, only to finally his mother; his mother to save his son, go through untold hardships, until the deaf and dumb, unable to walk,50Years old or die, didn't see son was cleared of the day.

When and how to reduce or even eliminate the human folly? Just let it appear in literary works, don't let it repeat in real life? The key, is must be fully and completely adhere to the law is justice philosophy, fully and completely stuck to legal justice is the justice of procedure, completely and thoroughly adhere to justice delayed is justice denied.

Three, the law to its common sense, philosophy, normative, guiding and ubiquitous and rich and colorful

　　1System of law: the legal system, China about Chinese, there are many classification methods, such as the Department of law is divided into: the constitution, administrative law, civil law, commercial law, economic law, labor law and social security law, natural resources and environment protection law, criminal law, procedural law, etc.. Rank division from the law making body and method: the Constitution and constitutional documents, enacted by the National People's Congress; law, enacted by the National People's Congress and its Standing Committee; laws and regulations by the State Council, and the right of the local people's congresses formulated by the State Council department; rules and regulations, and the right of local government, law making body different, the level of legal effect is also different from top to bottom.

Of course, different can also have other point of view, regardless of how to divide, although cited in this article mainly for criminal case, but the criminal law is legal in a department law, content and scope of the law itself contains a very broad, rich and vivid.

2,The two legal systems in the world: two big legal system of the world, the same as the legal knowledge, namely, the Anglo American law system,

The case law, follow the precedent, which is formed by the British Isles induction culture of legal logic and legal thinking; while the civil law, is the law, the rule of law, this is the deductive method formed by France and Germany, culture, legal culture and legal thinking. For example, the French contract regulations and America contract regulations, representation has the same provisions, the essence is different, the French contract law is the legal standard, direct basis for judgment; and USA contract law is only the reference behavior, decision is based on the earlier precedent. Of course, the contemporary world of law, there are mutual influence, tends to be the fusion trend.

　　3In the common sense, law, philosophy, normative, guiding and ubiquitous and rich and colorful: normative preventive law prior is far stronger than afterwards; law through its prediction and guidance function, so that people can know or estimate to between people will be how to act in advance, contingency, blind and reduce the behavior, improve the actual effect of behavior.

    Both philosophical, legal knowledge guidance, navigation, is undoubtedly one of the best of our life and work way.

Thus, the world because of the standard, the world more wonderful because of!