2014第五届华政杯初赛试题

第五届“华政杯”全国法律翻译大赛初赛试题试题一(325 words)The U.S. Supreme Court has not squarely confronted the death penalty's constitutionality since the 1970s. In that decade, the Court actually ruled both ways on the issue. In McGautha v. California,the Court first held in 1971 that a jury's imposition of the death penalty without governing standards did not violate the Fourteenth Amendment's Due Process Clause. But then in 1972, in the landmark case of Furman v. Georgia,the Court interpreted the Cruel and Unusual Punishments Clause to hold that death sentences—as then applied—were unconstitutional. In that five-to-four decision, delivered in a per curiam opinion with all nine Justices issuing separate opinions, U.S. death penalty laws were struck down as violations of the Eighth and Fourteenth Amendments. The sentences of the “capriciously selected random handful” of those sentenced to die, one of the Justices wrote, are “cruel and unusual in the same way being struck by lightning is cruel and unusual.” Other Justices also emphasized the arbitrariness of death sentences, with some focusing on the inequality and racial prejudice associated with them.Four years later, the Supreme Court reversed course yet again, approving once more the use of executions. After thirty-five states reenacted death penalty laws in the wake of Furman,the Supreme Courtupheld the constitutionality of death penalty statutes in Gregg v. Georgia and two companion cases. The Court ruled that laws purporting to guide unbridled juror discretion—and requiring capital jurors to make special findings or to weigh “aggravating”versus “mitigating”circumstances—withstood constitutional scrutiny. The Court in Gregg emphasized that the Model Penal Code itself set standards for juries to use in death penalty cases. Only mandatory death sentences, the Court ruled that year, were too severe and thus unconstitutional. In its decision in Woodson v. North Carolina, the Court explicitly ruled mandatory death sentences, the norm in the Framers' era, were no longer permissible and had been “rejected” by American society “as unduly harsh and unworkably rigid.”自20世纪70年代，美国最高法院还没有正视面临死刑的合宪性。

在这十年里，法院居然判决两种方式的问题。

在McGautha诉加利福尼亚州，法院首先在1971年裁定，陪审团判处死刑而不治标准并没有违反宪法第十四修正案的正当程序条款。

但随后在1972年，在弗曼诉佐治亚州的里程碑式的案例中，法院解释的残忍和不寻常的惩罚条款，以认为死刑，因为当时申请的是违宪的。

在这五对四的决定，在每curiam意见与所有九名大法官发出独立意见发表，美国死刑的法律被打倒作为违反第八和第十四修正案的。

那些被判死的“反复无常随机选择的少数”的句子中，大法官一书中写道，是“残酷和不寻常的以同样的方式被雷击是残酷和不寻常的。

”其他法官也强调死刑判决的随意性，与一些专注于与他们相关的不平等和种族偏见。

四年后，最高法院推翻当然再次批准再次使用处决。

经过35个州重演死刑的法律弗曼之后，最高法院维持原判的死刑法规的合宪性在格雷格诉佐治亚州和两个同伴案件。

法院裁定，声称是指导法律肆无忌惮陪审员决定，并要求资本陪审员作出特别的发现或权衡“加重”与“减刑”的情况下，顶住宪法审查。

法院格雷格强调，模范刑法典本身的设置标准，陪审团在死刑案件中使用。

只有强制性死刑判决，法院裁定这一年，是太严重，因而违反宪法。

在其伍德森诉北卡罗莱纳州的判决中，法院明确裁定强制性死刑，在制宪“时代的常态，不再允许的，已经”驳回“了美国社会”为过于苛刻和unworkably僵硬。

“试题二(348 words)The main features of the Anglo-American civil trial developed in the practice of the English common law courts in medieval and early modern times, as a consequence of the jury system, in which panels of lay persons were used to decide cases. Legal professionals—judges and lawyers—operated the initial pleading stage of the procedure, which was meant to identify and to narrow the dispute between the parties. If the dispute turned on a matter of law—that is, on a question such as whether the complaint stated a legally actionable claim, or whether some particular legal rule governed—the professional judges decided the case on the pleadings. If, however, the pleadings established that the case turned on aquestion of fact, the case was sent for resolution at trial by a jury composed of citizens untrained in the law. So tight was the linkage between trial and jury that there was in fact no such thing as nonjury trial at common law. In any case involving a disputed issue of fact, bench trial was unknown until the later nineteenth century.In the early days of the jury system, in the twelfth and thirteenth centuries, jurors were drawn from the close vicinity of the events giving rise to the dispute, in the expectation that the jurors would have knowledge of the events, or if not, that the jurors would be able to investigate the matter on their own in advance of the trial. Medieval jurors came to court mostly to speak rather than to listen—not to hear evidence, but to report a verdict that they had agreed upon in advance. Across the later Middle Ages, the jury ceased to function in this way for complex reasons, including cataclysmic demographic dislocations following the Black Death of the 1340s and the effects of urbanization in producing more impersonal social relations. By early modern times, jurors were no longer expected to come to court knowing the facts. The trial changed character and became an instructional proceeding to inform these lay judges about the matter they were being asked to decide.在英国普通法法院在中世纪和近代的做法，制定了英美民事审判，由于陪审团制度的结果，其中非法律专业人士的面板被用来决定案件的主要特点。