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I Te.xt I D E F IN IT IO N AND KINDS O F T O R T S Dẹ/ỉnừion and nature o f Torts A tort is a private (civil) vvrong, one that results in injury to another’s person, property, or reputation, for vvhich the courts award damages to the irỹured person It is violation o f rights not established by contract A crime is a public vvrong, one that affects society as a whole, and done with wrongful intent in violation o f penal law and is defmed by statute or common law Tort law differs from contract law only in that the duties ím p o se d by the latter are determ ined by contract than by law Tort law and contract law are, to a certain extent, “judge-made” That is because common-law niies, in some measure, govern toit and contract cases Crimes too, originally were defmed by the common law, and for purposes of this chapter, the common-law 175 deíĩnition of various crimes generally will be employed It should be understood, however, that what constitutes the elements of individual crimes must be detennined by referring to the penalstatutes of the particular jurisdiction in vvhich the crime took place Torts result when there is a conflict betvveen right to protection of person or property of one person and nght to freedom of action o f another The wrong may be inílicted intentionally, negligently, or by unreasonable interference with another’s personal or real property Intentional torts are violations of the law that rely on intent (the determination with vvhich one acts) in establishing liability Tort liability for negligence, on the other hand, relies on fault (i.e., the degree of failure of duty to act with due care) Classes o f torts A Neslisence Negligence is failure to exercise the degree of care required by lavv It is the theory of fault upon which most claims for personal injury are based Suits for negligence typically ìnvolve the failure on the part of one person to exercise due care when there is a íịreseeable risk of harm to others Four íactors must be present in order to establish liabiỉiíy for negligence Existence o f Legal Duty A determination that a legal duty exists between the ^arties must be made in order to establish liability through negligence This is solely a question of whether the deíendant should ve reasonably foreseen a risk of harm to the plaintiff Lack o f Due Care The judge or jury must determine whether the person charged with negligence failed to exercise due care To so, the court uses a standard-of-conduct model It compares the actions of the defendant with those of a hypothetical ordinary, reasonable, and prudent person under similar circumstances Actual Harm The plaintiff in an action for negligence must show that actual harm was suffered In most cases, the harrn suffered is a physical irýury and is visible Hann suffered due to íright or humiliation is diffícult to demonstrate Courts often deny damage awards for such harms in negligence cases unless they result froin or precede actual physical injury Proximate Cause o f Resulting Harm In every court suit for negligence, a “proximate cause” must be shown; that is, a connection must be show between the negligent conduct and the resulting harm in order to establish the liability of the defendant In detennining proximate cause, the court looks for an act or a íailure to act, in the absence of which the harm would not have resulted For example, the court might fínd thai the negligent failiue ơf the defendant to remove an extension ladder was the cause o f a child, climbíng and íaỉling off 177 the roof of the defendant’s house Another factor impacting upon finding of proximate cause is the existence of an intervening cause This is an event which occurs after the defendant’s negligence and alters the consequences of the defendant’s conduct For example, if fíre in the defendant’s vacant and unsecured property, set by a stranger, destroys the plaintiff s garage and car, this event is an intervening cause o f the damage sustained Generally, a defendant is liable only if the intervening event 1S reasonably íbreseeable B M a ỉp r a c tic e A special area of tort liability is malpractice, or professional negligence It involves the failure of individuals with superior education or training to maintain standards of perfonnance set or followed by proíessional groups The courts hold lawyers, doctors, accountants, and other professionals to a higher Standard of conduct than other members o f the commnnity Actions that fall short of expected skill or knowledge constitute probable evid en ce o f m alpractice liability The accountant who disregards the established rules o f audit or the doctor w’no, íhrough igiìcrance or carelessness subjects a patient to unnecessary suffering could be held liable in a malpractice suit The Standard of conduct principle is a ílexible one It recognises that a reasonable person, including a reasonable professional, can make an honest mistake For example, a physician may prescribe 178 the wrong medicine, since no one can be expected to be correct 100 percent o f time At a certain point, however, vvhen a mistake becomes so bad it becomes a negligent mistake A d a p ted from Business La\v by Robert Roscnbcrg EXERCISES FOR TEXT I Excrcisc Iỉã y tim cột B khái niệm tiếng Viêt tương ứng với khái niêm tiếng A nh côt A A A public wrong Action for Iiegligence Actual harm Expected skill Foreseeable risk Freedom of action Malpractice suit Negligence liability Theory of fault 10 Unreasonable interference 11 Standard of conduct principle 12 Proximate cause B a Tự hành động b Rủi ro thấy trước c Sự can thiệp khơng có sở d Trách nhiệm tác trách e Kỹ phải có f Vụ kiện hành nghề sai g Sai trái chống lại cộng đồng h Thiệt hại thực tế i Vụ kiện tác trách j Lý luận lỗi k Vi phạm pháp luật Trách nhiệm pháp lý m Nguyên nhân trực tiếp n Thuyết phân quyền Nguyên tắc hành vi chuẩn mực 179 Exercisc Translate the following definitions into Vietnamese Negligence is a tort consisting of failure to exercise that clegree of care which a prudent person would exercise under the same circumstances which cause harm to another Intent is a State of mind wherein a person knows and desires the c o n s e q u e n c e s of his/her act A court suit is an action which a person brings in court A prudent person is a person who normally acts with reason and care Battery is a tort that consists of unlawful intentional touching a person’s body or anything closelv attached thereto False imprisonment is a tort that consists of unjustified intentional detention of a person False arrest is a tort that consists of unlawfưl restraint of another’s personal liberty or íreedom of locomotion Slander is a tort that consists of words falsely spoken to damage the reputation of another Libel is a tort consisting of a false and malicious publicatíon printed for the purpose of defaming one who is living Excrcisc Find in coLumn B the synonyms o f the ivorcỉs in column A A Alter Demonstrate 180 B a Change b Intercede Foreseeable To inflict Intervene Involve Mistake Motivate Visible c Seeable d Include e Interfere f Predictable g Modify h Stimulate i Show j Error k Coníusion To cause Exercise Mỗi đoạn dịch chứa lỗi sử dụ n g thuật ngữ so v(ti nguyên Hãy xác đ ịn h lỗi A crime is a public wrong, one that affects society as a whole, and done with wrongful intent in violation of penal Iaw and is defined by statute or common law Ib Tội phạm hành vi sai trái chốnq lại cá nhân, hành vi ảnh hưởng đến toàn xã hội thúc đẩy ỷ muốn định Nó vi phạm pliáp luật xác định đạo luật hay tập quán pháp It should be understood, however, that what constitutes the elements of individual crimes must be determined by reíeư in g to the penal statutes of the particular jurisdiction in which the crime took place 2b■Tuy nhiên, cần phải hiểu yếu tơ'cấu thành nên tội phạm cá biệt phải xác định việc viện dẫn tới cấc đạo luật hệ thống tài phán mà tắc trách đă diễn 181 Suits for negligence typica!ly involve the failure 011 the part of one person to exercise due care w hen there is a foreseeable risk of harm to others 3b Các vụ kiện vê tác trách thườn xảy môt người không quan tâm mức trước rủi vo