衰亡还是重生——英国大法官的历史演进

每一个历史事件实际上都蕴含着丰富的社会、政治和文化内涵,因此真正深刻理解一定的历史事件,总能让人从中获取启示。所谓读史可以使人明智,其道理就在于此。2003年英国大法官的撤销,对英国的政治和司法制度来说无疑是一个具有深远历史意义的重大事件。胡健之文捕捉到了这个历史事件命题,对其中所蕴含的历史、社会、政治和法制信息进行了有资料、有分析且有见解的阐释议论。特别是作者对英国大法官历史演进过程中几次重要的角色性质转换所做的分析立论,更应能引起许多法律学者和实务工作者的兴趣。文章对于英国大法官演进过程中行政官员司法化、神职法官世俗化、中立人员政治化的阐释与分析,清楚地揭示了其每次角色转换其实都是特定的历史背景、社会状况和政制形态的折射。不仅如此,社会历史的发展必将还会造就大法官新的历史角色。虽然这个过程刚刚开始,结局尚未最后明朗,但这个悬念确实给人以思考的时间与空间,甚至能给人以角色转换应取方向的提点。因为就已经考察的英国大法官历史演进规律而言,大法官的职能只有在脱离王权、神权乃至党权的前提下,方能实现其应有或正当的使命。     

Constitutional Reform, the Lord Chancellor, and Human Rights: The Battle of Form and Substance

This article examines the impact of the Human Rights Act on the government's constitutional proposals for reform of the role of the Lord Chancellor and the appointment of the judiciary. It also looks at the uncertain acceptance of a 'human rights' culture by the department charged with lead responsibility for its implementation. It concludes that the government went further than was required in reforming the role of the Lord Chancellor. As a consequence, considerable - and possibly undue – weight now hangs on the enlarged role of the Lord Chief Justice. Meanwhile, the Department of Constitutional Affairs and its ministers have rejected the 'rule of law' brief of the Lord Chancellor without clarity as to where such responsibilities might now be adequately located within government.     

The Common Law Constitution at Work: R (on the application of UNISON) v Lord Chancellor

This note considers the radical significance of Supreme Court's judgment in R (on the Application of UNISON) v Lord Chancellor (UNISON) on the unlawfulness of tribunal fees. It argues that the decision marks the coming of age of the ‘common law constitution at work’. The radical potential of UNISON lies in its generation of horizontal legal effects in disputes between private parties. Recent litigation on employment status in the ‘gig economy’ is analysed through the lens of UNISON and common law fundamental rights. The note identifies the various ways in which the common law tests of employment status might be ‘constitutionalised’ in the light of UNISON.     

The Lord Chancellor's Advisory Committee

The Qualified Lawyers Transfer Scheme (QLTS) is a comprehensive assessment for lawyers from other jurisdictions and barristers from England and Wales to qualify as solicitors in England and Wales. Three new assessments have been developed which make up the QLTS, in part drawing on testing experience in medicine and in other jurisdictions: the multiple choice test (MCT); the objective structured clinical examination (OSCE) which involves assessment of oral skills (interviewing and advocacy) and which uses Standardised Clients; and the technical legal skills test (TLST) which involves assessment of written skills (legal research, writing and drafting). Some of the assessment methodologies used in the QLTS are discussed, including the use of standardised clients. An explanation is given of how reliability and accuracy of the assessments are calculated and how pass marks are set. The paper presents and reviews the very encouraging statistics from the first major delivery of the three assessments, including success by jurisdiction, ethnic group, gender and disability, and routine quality statistics on reliability and accuracy, as well as a statistical review of the use of standardised clients. QLTS reflects the regulatory aims of the SRA and is a radical departure for assessment of law in England and Wales. It is to be hoped its assessment methodologies will have a substantial influence on the future.     

案卷笔录中心主义——对中国刑事审判方式的重新考察

中国刑事审判中存在着一种“以案卷笔录为中心”的审判方式。在这一审判方式下,公诉方通过宣读案卷笔录来主导和控制法庭调查过程,法庭审判成为对案卷笔录的审查和确认程序,不仅各项控方证据的可采性是不受审查的,而且其证明力也被作出了优先选择。结果。现代刑事证据规则在这种审判方式下难以有存在的基础,法庭审理只能流于形式,那种通过当庭审判来形成裁判结论的机制和文化难以形成。不抛弃这种案卷笔录中心主义的审判方式,任何以加强庭审功能为宗旨的司法改革将没有存在的空间。     

Improving Trial Advocacy: The Views of Trial Attorneys

This article reports an exploratory study of trial attorneys' views of competent advocacy and the factors that affect such performance. It examines how attorneys account for variations in civil trial performance. These perceptions are then examined in relation to the major programs that have been proposed to remedy attorney incompetence.     

司法审判的法哲学分析

司法判决是制度、事实、个人活动的合因之果,判决形成的思维工具包括法律解释和法律推理;判决以确定性为特征,而法官形成判决过程中的判断却具有综合性。     

Lord Cottenham and the Court of Chancery

Lord Cottenham was a significant legal figure in nineteenth-century Britain. He was a Lord Chancellor and Keeper of the Great Seal in both Lord Melbourne's and Lord Russell's administrations. Yet compared with his peers he has faded into obscurity, because his contribution to the reform of the Court of Chancery and the development of the law, particularly equity, has not been fully appreciated. It will be argued that Lord Cottenham was not as successful as his successors in reforming Chancery because his attempts to do so were flawed by the view that incremental reform would redress the problems which beset the Court. However, he made some highly significant contributions to equitable doctrine, sometimes taking a practical approach to judicial decision-making and laying the foundation for some modern doctrines.     

刑事庭审的中国模式：教化型庭审

我国刑事庭审的主要功能不在于查明案件事实,而在于以＂表态——展示——教育——忏悔＂四部曲的方式来教化被告人和其他公民。这种教化型庭审并非毫无意义的＂形式＂,它不仅有利于实现刑罚的特殊预防功能,而且有利于罪犯复归社会、被害人的精神康复及社会重新接纳罪犯。但是,目前我国这种国家权力主导下的教化型庭审由于缺乏认罪自愿性的保障,会使无辜者面临着极大的定罪甚至从重处罚的风险。未来中国刑事庭审的改革方向不在于彻底放弃庭审的教化功能,而是将真相、权利、效率和教化融为一体,实现多元价值的有机结合。