Essay代写：The early form of British litigation－r51due

下面为大家整理一篇优秀的essay代写范文- The early form of British litigation，供大家参考学习，这篇论文讨论了英国诉讼制度的早期形态。盎格鲁－撒克逊时期，英国的诉讼制度主要有宣誓助讼和神明裁判两种基本形态。在制度设计和证据方法方面，宣誓助讼和神明裁判相对原始，缺乏理性和事实根据。在法律观念和司法原则方面，宣誓助讼和神明裁判具有鲜明的形式主义与团体主义特征，十分重视程序原则与社区责任，这是日耳曼法的典型特征。在英国普通法形成时期，这两种诉讼制度均走向衰亡，但其所体现的法律观念和司法原则却存留下来并构成普通法的重要标志。

In the Anglo-Saxon period, the litigation system in England mainly consisted of two basic forms: oaths and divine judgment. In terms of institutional design and evidence methods. The oaths of litigation and divine judgment are relatively primitive and lack rational and factual basis. In terms of legal concepts and judicial principles, oaths to assist litigation and divine judgment have distinct formalism and communalism characteristics, and they attach great importance to procedural principles and community responsibilities, which are typical characteristics of Germanic law. During the formation of English common law, both of these litigation systems went to the decline, but the legal concepts and judicial principles they embodied survived and constituted an important symbol of common law.

English common law is textual and practical. The litigation system that supports the judicial practice is particularly important, and its basic forms include jury system, writ system and so on. There is no lack of in-depth research in this regard. Before the common law came into being, the British litigation system mainly consisted of oaths and divine judgment. They do not form the institutional basis of common law, so there is little academic interest. However, the legal concepts and judicial principles contained in the two litigation systems should not be ignored and form the conceptual basis of common law. It is a product of Germanic tribal society and has the distinctive characteristics of Germanic law. Based on the study of Anglo-Saxon statute law, this paper intends to clarify the early form of the British litigation system and explore the legal concepts and judicial principles contained therein. And its significance to the formation and development of common law to clarify the Germanic origins of common law.

Comppurgtion, or "taking an oath", or "rectification," is a popular form of litigation and evidence in Anglo-Saxon society. In such proceedings, the plaintiff or defendant may by oath prove or absolve himself in a claim or charge. And through sworn litigants to strengthen. The litigant is not against the facts. It is the character of the recipient that justifies the oath. A litigator is usually a relative or neighbor of the recipient. The quantity and quality of litigants is important. If sufficient number of litigants cannot be found, or if they cannot be declared in an appropriate form, the grantee loses the case. The number of litigants is usually 12. In some cases, more litigants are needed. The oath must be correct and accurate. If someone slips of the tongue, he is deemed guilty of a false heart and the oath is broken, and the whole lawsuit is declared a failure.

In modern society, the truth is investigated and the accuracy and value of the evidence is measured. In Anglo-Saxon society there is little rigorous process of investigation and evidence in modern justice. However, if the accused is found to have stolen goods or other suspicious circumstances, or is notorious for having a criminal record or perjury history; Or the plaintiff has a title deed in hand. The defendant has no right to testify. The practice at the time was to deny the defendant the right to swear. In this case, the plaintiff has the right to provide evidence and make an oath to assist in litigation. If the plaintiff's oaths succeed, the defendant must concede.

In written law, the first written law of the seventh century, the Ethel law, did not provide for oaths, but several subsequent laws, the herat and idray, referred to the use of oaths. As stated in articles 2, 4, and 5, if a person's servant kills and escapes, the master shall pay compensation to the victim's family, and shall prove by oath that he did not know. He's innocent. In the late seventh century Kent's mitrid law, as many as nine articles provided for oaths, mainly concerned with how people of all walks of life claimed innocence and the number of litigants through oaths of people of similar rank. The law does not, however, specify the penalties for failure to do so. The Enid act, also promulgated at the end of the seventh century, was the first written law of the kingdom of wessex and had a greater influence on later generations. Although the provisions of the act on oaths are less detailed than those of the mitritish act, articles 25, 1, and 30 clearly specify the penalties faced after oaths fail. If the oaths and oaths are not accepted, a fine, large enough to amount to the defendant's ransom, is imposed. In this sense, the pledge to assist in litigation became popular in the Anglo-Saxon kingdoms as late as the end of the seventh century. Become an important way of judicial proof in Anglo-Saxon society.

The knut act's penalties for false oaths and perjury should be said to be quite severe. In terms of the proceedings, if the defendant abandons the oath, he will only face compensation; If he takes the oath, but is defeated, he is very passive and will face double punishment, not only suffering great physical or material pain or loss, but also losing the right to take the oath in the future. That said, he is likely to lose his right to argue in the next lawsuit. So the consequences of taking a false oath are quite serious. The penalty for perjury is lighter, but the punishment is similar. In addition, in a society with a strong religious atmosphere and limited knowledge, the religious fear of sin and god is very intense, and the perjurers and perjurers will have a strong psychological fear, forming a sense of guilt, and forming a long-term torture for the body and mind because of the false words in front of god. In the definition of oaths, ke zeng pointed out that "the solemnity of oaths reflects the religious fear of false oaths and perjury in the middle ages." It can be seen that the authority of oaths lies not only in the punishment of customary law, but also in the devotion of Anglo-Saxon society to religion. It is the religion and the common law that make up the middle ages' system of oaths and oaths.

As another important litigation system and evidence mode in Anglo-Saxon society, it is also a criminal punishment mode in a sense. When the defendant is unable to summon enough aid or its crime is so serious that the sworn aid is insufficient, it needs to be judged by god, which is the judgment of god. According to kezeng, the divine judgment is mainly aimed at four types of people: those who were caught at the scene of the crime, those who had committed a false oath, those who were not free, or those who could not provide sufficient sworn assistants. The lemming referee originated in Germanic tribal society, where it was believed that the world had supernatural powers and could show by giving a sign whether the accused was guilty or not. Therefore, when human beings cannot judge by themselves, they can judge by the manifestation of god through appropriate rituals. Generally, the divine judgment must be performed within the church and supervised by the church priest.

The divine judgment has many specific practices. In the Anglo-Saxon period, there were four methods: hot iron, hot water, cold water, and devouring. The so-called hot iron method, is by the defendant's hand to carry the hot iron forward a distance, generally nine steps; The wound was then bandaged in public and examined three days later. The so-called hot water method is similar to the hot iron method, except that hot iron is replaced by boiling water. The so-called cold water law, is the defendant half bundle and throw into the pool, if the sinking of the spirit to accept him, then exonerate. The act of swallowing is when the accused eats a large piece of bread for sacrifice in public. The law of swallowing was chiefly directed against the clergy, and the law of cold water was chiefly applied to the slaves, because it was undignified.

During the Anglo-Saxon period, oaths and divine judgment were the two main methods of judicial proof and court decision. At that time, the social development level was low and the royal power was relatively weak in the historical stage. It was reasonable for the oaths to assist litigation and the judgment of god, and because of the religious worship to god and the religious fear of false oath and perjury, it could play the role of adjudication and punishment. The sworn aid to litigation and the judgment of god continued in the Norman period and is still an important litigation system. However, both the sworn lawsuit and the divine judgment are relatively primitive in terms of system design and evidence method, lacking rational and factual basis. The divine judgment has a mysticism that has nothing to do with the truth and often leads to injustice. In 1100, a total of 50 suspects were tried and all of them were released without charge, a result that even king William ii, who was said to have publicly mocked the god referee, was deeply suspicious. It is based on the character of the litigant. Still, it is difficult to guarantee justice. With the "revival" of production technology and knowledge culture in the 11th and 12th centuries. More and more people begin to believe in human reason and experience, and realize the unreasonableness and injustice of these methods of judgment. Oath-assisted litigation and divine judgment gradually replaced by jury system or partial replacement. In 1215, the fourth Lateran council of the holy see ruled that clerics were not allowed to participate in divine refereeing, effectively abolishing divine refereeing. In some areas and some cases, the deposition of litigation remains longer. Into modern times.

Although the system of oaths for litigation and divine judgment was replaced by the later jury system, it did not constitute the institutional basis of common law, but the legal concepts and judicial principles contained therein. But it forms the conceptual basis of common law. These legal concepts and judicial principles are worth attention in two aspects, one is formalism and procedural principles, the other is group doctrine and community responsibility. These legal concepts and judicial principles are the distinctive features of Germanic law.

The formalistic characteristics of the sworn aid to litigation and the judgment of god. It can be explained through the ritual and procedure of judicial certification and trial. This formalism is also manifested in the sanctity of the oath. An oath is to be taken in a sacred place, such as a church, where the swearer takes an oath by placing his hand above the gospels, crosses, or other sacred objects and swearing in the name of god's presence. Therefore, both the oath of the oath and the symbol of the oath are very formal and fully show the formalism characteristics of Germanic law.

The gods' judges are equally ceremonial and methodical. The hot water and hot iron rituals state: "when the gods' judges are ready, each person will test the temperature of the water and must meet the required temperature. So is iron." Next came the Eucharist and prayer service before the referee: "the same number of people entered the church on both sides. All must fast, fast, and abstain on the night. The priest who presides over the communion shall sprinkle the holy water on the public, and all shall taste the holy water. Then the priest gives them the bible and the cross to kiss. When the sacred ceremony begins, no one can add fire. Hot iron should be allowed to burn. Hot iron was then placed on the case, and there should be no voices in the church other than to pray to god to show the truth. 'Xiu then god judge itself: "the defendant suffered god judge, wound was dressed, after three days of testing whether wounds fester." The ceremony itself takes up a long time during the judging process. And divine judgements generally apply to felonies, and the involvement of churches and clergy further enhances the sanctity and authority. The regulation also states that "if a person violates the above principle, the divine judgment shall be declared null and void. A fine of 120 shillings must also be paid to the king." It appears, therefore, that among the divine judgements, ritual and procedure are important, and have a marked formalistic character, and that the trial itself is declared null and void if in any respect there is error and the proceedings are not conducted according to the prescribed procedure. Rituals and procedures were of particular importance in Anglo-Saxon law, in addition to the religious belief that early societies believed in gods and resorted to divine rituals to reveal the truth. It is more the unwritten and customary features of Anglo-Saxon law. The process of judging is also a process of declaring law and justice, there is no text to read, and a good way is to perform it with a ritual. Maitland said: "as long as the law is unwritten. It must be dramatized and performed. Justice must take on a vivid appearance. Otherwise people wouldn't see her." In a word, both the oaths and the judgments of the gods are based on strict and standard procedures. Procedure precedes right, is one of the core concepts of common law, which is reinforced by the writ system.

The communitarian character of the Anglo-Saxon litigation system. This is mainly reflected in the support group for litigation under oath. A litigant is usually a relative or neighbor of a party. They live in the same family and the same village with their clients, and have a certain understanding of their usual behavior and actions, especially their personal character. The oath of a litigant is based on an understanding of the character of the recipient, and therefore, the litigant is not a witness. They support the parties simply because they come from the same group, the same community. In the Anglo-Saxon conception, members of the same community have rights and duties of mutual protection, mutual loyalty, and mutual trust. If one member is violated, the other members shall have the obligation to retaliate and safeguard the rights and interests of the members of the group through judicial channels. If one member is accused of injustice, the other member is also obligated to exonerate the member of the group. Any offence to any member of the group is an offence to all members of the group, which is a principle of responsibility and risk sharing. This kind of corporatism is the foundation of the aid mission. If the defendant is convicted under oath, or is deemed to have taken a false oath and forfeited the right to take the oath in the future, the litigant will also face punishment. However, there is little chance of litigation under oath, which is more about enhancing group or community responsibility. In this way, the litigant is using his own personality to guarantee the personality of the parties in order to strengthen the validity of the parties' oath. For litigants, their attendance at the oath-taking is not for the sake of impartiality, but because of their association with the parties, being in the same group, and having a duty of protection; Of course, the parties also have a duty of loyalty. The relationship between litigants and recipients is a typical relationship of rights and obligations. Later feudalism in a certain sense is the expansion of this relationship, feudal law is also a kind of group legal norms, which is one of the basic legal norms during the formation of common law.

There are two basic forms of the anglo-saxonian litigation system: the sworn aid of litigation and the divine judgment. In terms of system design and evidence method, the oaths for litigation and divine judgment are relatively primitive and lack rational and factual basis. In terms of legal concepts and judicial principles. It is typical characteristic of Germanic law to attach great importance to procedural principle and community responsibility. During the formation of English common law, both of these litigation systems went to the decline, but the legal concepts and judicial principles they embodied survived and constituted an important symbol of common law. The development and evolution of the early form of British litigation system also reflects the relationship between common law and Germanic law.

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