国人对民决团在英美法庭中的功能的误解  

To Correct Chinese People's Misconceptions of the Roles of a Jury in American and British Courts

作　　者：陈泰和[1] 

机构地区：[1]桂林电子科技大学法学院,广西桂林541004

出　　处：《时代法学》2012年第1期9-18,共10页Presentday Law Science

摘　　要：民决团仅仅负责事实审,决定事实问题;法官则负责法律审,决定法律问题。这个认识的错误在于:普通法中没有"事实审"、"法律审"的术语,这是国人杜撰出来的。普通法事实发展出来法律,法律是事实的积累。民决团事实上既决定法律又决定事实。它在美国,具有最高权力,大于总统、国会和最高法庭。另外民决团在美国7个州还决定量刑,在有死刑的州,还决定死刑。事实与法律的区分和混合,有助于法官将复杂问题交给民决团决定并在上诉中捍卫民决团的最高权力;也有助于法官对法律问题下命令、进行违宪性审查。总之,理解民决团的最高权力,是理解普通法的关键。The Chinese equivalent for a jury is 事实审, which is translated to mean that a jury is only in charge of deciding upon the questions of facts presented. The Chinese equivalent for a judge is 法律审, which is translated to mean that a judge is just responsible to rule upon the questions of law presented. It is totally and absolutely a historic misconception： there are no such terms as ‘事实审’ and‘法律审’ in the common law system. These Chinese terms are fabricated by Chinese people. In common law, facts are able to evolve or develop laws over time and law is the assembling of these facts. As a matter of fact, a jury can determine both facts and laws. In America, a jury holds the supreme position of power exceeding that of the president, congress and the Federal Supreme Court. In addition, a jury is still empowered to give sentence in seven states; in the states that still preserve the death penalty, it is this power a jury holds that can make the decision of capital punishment on a defendant. The separation and mixture of facts and laws benefits judges and allows them to forward complicated legal issues to a jury for a final verdict, and authorize them to administer the supreme power they have in an appeal; furthermore, it allows judges to be available to rule upon questions of law and to undertake constitutional review upon legal issues. In conclusion, for people to comprehend common law correctly and accurately it is critical that they understand the supreme position of power that a jury possesses.

关 键 词：民决团 事实问题 法律问题 最高权力 法官 

分 类 号：D915[政治法律—诉讼法学]