American Law学习笔记01

靖博 阅读:1179 2018-04-23 13:32:27 评论:0

*以下为本周开始学习美国法律简介课程笔记,请胖美国大律师鹿指正。

术语

tortfeasor 侵权人

a person WHO commits a tort.

battery 殴打

The intentional causation of harmful or offensive contact with another person without that person's consent.

Assault 是指英美刑法中的“企图伤害罪”,或指侵权法中的“威胁、恐吓”。Assault强调“企图”,battery强调实施,意思是完成对这种“威胁”的实施。所以,assault与battery经常在一起出现,意思是“企图伤害罪与殴击罪”,可简称为“殴击罪”。

法律英语中battery是指无正当理由、未经他人同意而故意以武力攻击他人身体或造成他人身体的伤害。这必须有触碰到原告的身体,虽然这种触碰可能是被告间接造成的。例如向原告投掷物体、用拳头击打某人身体、击落某人头上的帽子、不当的外科手术、不当的身体接触、如拥抱、接吻、威胁他人的动作等,都被视为是英美侵权法上的“battery”。(以上中文释义摘自http://www.legaltranz.com/archives/802)

comparative negligence 比较过失

A tort rule for allocating damages when both parties are at least somewhat at fault. In a situation where both the plaintiff and the defendant were negligent, the jury allocates fault, usually as a percentage (for example, a jury might find that the plaintiff was 30% at fault and the defendant was 70% at fault).

contributory negligence 共同过失

A plaintiff was totally barred from recovery if they were in any way negligent in causing the accident, even if the negligence of the defendant was much more serious.

damages 赔偿金

In tort law, a remedy in the form of monetary compensation to the harmed party.

fault 过错

In civil law - negligence, want of care, an improper act or omission,injurious to another, and transpiring through negligence, rashness, or ignorance.

intentional tort 故意侵权

A type of tort that can only result from an intentional act of the defendant (as opposed to a negligent one).

negligence 过失

A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one's previous conduct).

products liability 产品责任

American law holds the manufacturers of consumer products strictly liable for injuries caused by manufacturing defects. For more,

punitive damages 惩罚性赔偿

Punitive damages are awarded in addition to actual damages in certain circumstances. Punitive damages are considered punishment and are awarded when the defendant's behavior is found to be especially harmful, but are normally not awarded in the context of a breach of contract claim.

res ipsa loquitur 事实自证

Latin for "the thing speaks for itself." In tort, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant's control, and that there are no other plausible explanations.

strict liability 严格责任 (无过错责任)

Rule providing that if you cause an injury by a deliberate act, even if you did not mean to cause injury and were careful, you are liable to compensate the injured party.

案例学习

Brown v. Kendall, 60 Mass. 292, 1850 Mass. LEXIS 150, 6 Cush. 292 (Mass. 1850)

Hulle v. Orynge (The Case of Thorns)

其他知识点

- social security disability program 社会安全残障福利

- contingent fee 风险代理收费,指律师获取的报酬取决于所代理的案件获得法院判决给付的总额的一定百分比。

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