毕业论文外文翻译-刑法.doc
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1、 Criminal Law1. General Introduction Criminal law is the body of the law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected offenders,and fixes punishment for convicted persons. Substantive criminal law defines particular crimes, and procedural law establish
2、es rules for the prosecution of crime. In a democratic society, it is the function of the legislative bodies to decide what behavior will be made criminal and what penalties will be attached to violations of the law. Capital punishment may be imposed in some jurisdictions for the most serious crimes
3、. And physical or corporal punishment may still be imposed such as whipping or caning, although these punishments are prohibited in much of the world. A convict may be incarcerated in prison or jail and the length of incarceration may vary from a day to life. Criminal law is a reflection of the soci
4、ety that produce it. In an Islamic theocracy, such as Iran, criminal law will reflect the religious teachings of the Koran; in an Catholic country, it will reflect the tenets of Catholicism. In addition, criminal law will change to reflect changes in society, especially attitude changes. For instanc
5、e, use of marijuana was once considered a serious crime with harsh penalties, whereas today the penalties in most states are relatively light. As severity of the penalties was reduced. As a society advances, its judgments about crime and punishment change. 2.Elements of a Crime Obviously, different
6、crimes require different behaviors, but there are common elements necessary for proving all crimes. First, the prohibited behavior designated as a crime must be clearly defined so that a reasonable person can be forewarned that engaging in that behavior is illegal. Second, the accused must be shown
7、to have possessed the requisite intent to commit the crime. Third, the state must prove causation. Finally, the state must prove beyond a reasonable doubt that the defendant committed the crime. (1) actus reus The first element of crime is the actus reus. Actus is an act or action and reus is a pers
8、on judicially accused of a crime. Therefore, actus reus is literally the action of a person accused of a crime. A criminal statute must clearly define exactly what act is deemed “guilty”-that is, the exact behavior that is being prohibited. That is done so that all persons are put on notice that if
9、they perform the guilty act, they will be liable for criminal punishment. Unless the actus reus is clearly defined, one might not know whether or not ones behavior is illegal. Actus reus may be accomplished by an action, by threat of action, or exceptionally, by an omission to act, which is a legal
10、duty to act. For example, the act of Cain striking Abel might suffice, or a parents failure to give to a young child also may provide the actus reus for a crime.Where the actus reus is a failure to act, there must be a duty of care. A duty can arise through contract, a voluntary undertaking, a blood
11、 relation, and occasionally through ones official position. Duty also can arise from ones own creation of a dangerous situation.(2) mens reaA second element of a crime is mens rea. Mens rea refers to an individuals state of mind when a crime is committed. While actus reus is proven by physical or ey
12、ewitness evidence, mens rea is more difficult to ascertain. The jury must determine for itself whether the accused had the necessary intent to commit the act.A lower threshold of mens rea is satisfied when a defendant recognizes an act is dangerous but decides to commit it anyway. This is recklessne
13、ss. For instance, if Cain tears a gas meter from a wall, and knows this will let flammable gas escape into a neighbors house, he could be liable for poisoning. Courts often consider whether the actor did recognise the danger, or alternatively ought to have recognized a danger (though he did not) is
14、tantamount to erasing intent as a requirement. In this way, the importance of mens rea has been reduced in some areas of the criminal law.Wrongfulness of intent also may vary the seriousness of an offense. A killing committed with specific intent to kill or with conscious recognition that death or s
15、erious bodily harm will result, would be murder, whereas a killing affected by reckless acts lacking such a consciousness could be manslaughter.(3) Causation The next element is causation. Often the phrase “but for” is used to determine whether causation has occurred. For example, we might say “Cain
16、 caused Abel”, by which we really mean “Cain caused Abels death. ” In other words, but for Cains act, Abel would still be alive.” Causation, then, means “but for” the actions of A, B would not have been harmed. In criminal law, causation is an element that must be proven beyond a reasonable doubt.(4
17、) Proof beyond a Reasonable DoubtIn view of the fact that in criminal cases we are dealing with the life and liberty of the accused person, as well as the stigma accompanying conviction, the legal system places strong limits on the power of the state to convict a person of a crime. Criminal defendan
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