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英国法律论文-英国刑法的起源审查-The origin of the criminal law review

The origin of the criminal law review

The origin of the criminal law review (note 1)


Keywords: comparison, English law, common law, case law, enacted law


A British criminal law, the common law origin


The most important British criminal law of origin is common law, also called common law or case law, is formed by the habits and case law. In ancient Britain, once had a historical period of the country have no applicable unified law, and the local habits and different from each other. Since 1066 the Normandy duke William conquest Anglo-Saxon-Saxon later, will observe all the habit to unity, which gradually formed the common law, the so-called common, is the traffic in ordinary habits. Ordinary habits become law, and as a judge the case according to, making decision, if the same thing happened again after the case of a case, the judgment in cases of before, can have legal effectiveness. Common law, it is from this and form. Due to the common law in Britain have independent become a system, when the Roman law in Europe popular, although the forces of the Roman law than English law, the content of the Roman law is better than English law, but the law still independent of Europe, not only for the Roman law assimilated, and increasingly popular all over the world, and gradually become independent legal system in the world, one of the common law system.


18 th century British famous jurist braxton has once said: "the law of the main cornerstone, is general and old habits, or call common law, in the court's decision from time to time in published......" Visible, the criminal law is based on the origin of the judicial decisions and precedent and the formation of early habit. In the first common law of crime, have those who threaten social basis and often put to death and confiscation of property of a punishment of serious crimes such as murder, rape, theft, etc.


Along with the development of the common law, gradually produce the basis and the reference case had explained the practice of judgment cases, often by expanding the scope of the sin of the existing and create new crimes. Explanation, in fact is the search for the criminal law spirit. Already existing laws, the meaning of the standard, usually is easy to understand and grasp, however, because of criminal law has high generalization, and some of the meaning, have different from ordinary language meaning meaning, it is only by understanding exactly explain to the spirit of the legislation has reached. In addition, the method of constant should be the sin of the change, hard to avoid omissions, explain can make up for less than the legislative intent. And the lack of early British criminal law, especially pay attention to the search for criminal law spirit, also is that more scholars explanation. In addition, the previous sentence, also for the judge conviction provide a lot of valuable experience, enrich the origin of the criminal law. As braxton has in the British law definition "said:" legal knowledge from experience and learning, so the judge shall follow the example (stare decisis).... but in order to meet the new experience, rules must be the exception, in order to conform to reality, the previous rules can also be opposite consideration.... so, unless obviously ridiculous or injustice, and precedents and rules must be followed."



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