2023年4月17日发(作者：中国第六代导演)英美法判决书的特点（中英⽂）
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 cas decided by a court or by one or more courts, giving in full the opinions rendered in the
cas, usually including concurring and disnting 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 cas 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 subquent ca which prents the same legal problem, although different parties are involved in the subquent
ca.
判决拘中国梦我的梦作文
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 ca is decided延伸的近义词
.
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 promi 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 promi without consideration is void. 没有对价的承若⽆效，
⼩前提是事实：A promi 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 promi）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 霍尔姆斯曾说The life of law
has not been logic; it has been experience. 法律的寸和英寸
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怎么写委托书
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 ttled 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 remai心情分享
ns the question of the damages payable to her for her nervous shock – the shock which she suffered
by eing 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 the last 25 years, it has been ttled
that damages can be given for nervous shock caud by the sight of an action, at any rate to a clo 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 the cas have come before the courts to asss 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] Superding 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
curities fraud; conspiracy to engage in accounting fraud and to defraud banks; conspiracy to commit tax fraud; curities
fraud; falsifying the records of a broker-dealer; falsifying the records of an investment advir; causing a fal and misleading
filing to be made with the Securities and Exchange Commission (“SEC”); bank fraud; making and subscribing to fal 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 fo主板英文
r the considerate and fair way in which they have dealt with
the ca. In English law no damages are awarded for grief or sorrow caud 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 caud by
the breach of duty by the defendant.
There are only two cas 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 prent at the accident. The evidence shows that she suffered much
more by being prent. I will consider first the grief and sorrow if she had not been prent 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 predispod person it can be greatly prolonged. ..."
Mrs. Hinz was not predispod梳妆台英语
at all. She was a woman of great capa热力学三大定律
city, 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 prent 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 sai富氢水的功效
d to him: "It does not
em worth going on. I 阳澄湖大闸蟹多少钱一斤
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 becau 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 himlf.
We can only interfere if it is a wholly erroneous estimate. I do not think it is erroneous. I would dismiss the appeal.
