复试阶段丨人大法学考研复试英语攻略内含三十篇精选素材(下)(人大复试刷人厉害吗)

21、联合国
the united nations is an international organization founded in 1945. currently made up of 193 member states, the un and its work are guided by the purposes and principles contained in its founding charter.
the un has evolved over the years to keep pace with a rapidly changing world.
but one thing has stayed the same: it remains the one place on earth where all the world’s nations can gather together, discuss common problems, and find shared solutions that benefit all of humanity.
22、性别歧视
sexism means discrimination based on sex or gender, or the belief that because men are superior to women, discrimination is justified. such a belief can be conscious or unconscious. in sexism, as in racism, the differences between two (or more) groups are viewed as indications that one group is superior or inferior. sexist discrimination against girls and women is a means of maintaining male domination and power. the oppression or discrimination can be economic, political, social, or cultural.
elements of sexism
1) sexism includes attitudes or ideology, including beliefs, theories, and ideas that hold one group (usually male) as deservedly superior to the other (usually female), and that justify oppressing members of the other group on the basis of their sex or gender.
2) sexism involves practices and institutions and the ways in which oppression is carried out. these need not be done with a conscious sexist attitude but may be unconscious cooperation in a system that has been in place already in which one sex (usually female) has less power and fewer goods in the society.
23、人工智能否取代律师、法官
imagine going to court, and instead of seeing a judge wearing their cloak and holding their gavel, you see a robot ready to hear your case. would you trust this machine to give you and your client a fair trial – one that could shape a whole life?
artificial intelligence is slowly beginning to aid legal professionals, law firms, and the overall legal industry. the consensus is that ai will one day be the norm in courtrooms, too. but not for a while.
that’s because humans must train an ai machine in the first place. and to do that, humans must use historical evidence and data from precedent cases. but given that, historically, people have been more biased and discriminatory than not, the ai could easily become the same. so there are many steps that need to be taken – the first is training ai with unbiased and non-discriminatory data. this will ensure that the machine is not going to be in favor of one person over the other. the second step after this machine learning is determining whether the machine is worth any further investment.
although ai cannot fully “replace” a judge or lawyer’s position at present, it is still useful in the courtroom in many ways. an ai machine can gather research, preventing the judge from having to go through legal books manually. such legal technology is also able to address fundamental crises in courts by helping to make justice clear and efficient. also, an ai machine is able to fill advisory roles like gathering evidence or estimating recidivism rates based on statistical data. this saves judges a tremendous amount of time.
24、创新与知识产权保护
innovation and intellectual property are intrinsically linked. you can protect new inventions and creations with the provisions of intellectual property (ip) law by protecting others from profiting from your innovations.
patent protection financially rewards creators for innovations that are commercially successful, which provides a valuable incentive to create life-improving technologies. small businesses and independent inventors can expect a return on investment for the time and money they spend developing a new innovation. society, in turn, benefits from both the new innovation and the economic opportunities it creates. the revenues from these technologies provide for the financing of additional research and development endeavors.
the patent process turns an invention into a commercial asset through sales, licensing, and collaboration. intellectual property (ip) assets such as patents can also attract investors to the business. the new knowledge and intelligence generated by an invention can inspire future creations, which may lead to additional patented innovations.
the mapping of patent information alsoallows policymakers to see where valuable research and development is occurring, thus shaping policy and regulation to support innovation.
25、x法
（1） general introduction
most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. most constitutions seek to regulate the relationship between institutions of the state , in a basic sense the relationship between the executive, legislature and the judiciary, but also the relationship of institutions within those branches. for example 9 executive branches can be divided into a head of government, government departments/ministries ,executive agencies and a civil service.
most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens. it is thus the most basic law of a territory from which all the other laws and rules are hierarchically derived: in some territories it is in fact called “basic law”. constitutions may also provide that their most basic principles can never be abolished, even by amendment. in case a formally valid amendment of a constitution infringes on these principles, it may constitute a so-called unconstitutional constitutional law.
（2）codified constitution and uncodified constitution
1) codified constitution
most states in the world have codified constitutions (also known as written constitutions). codified constitutions are often the product of some dramatic political change, such as a revolution. the process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. states that have codified constitutions normally give the constitution supremacy over ordinary statute law. that is, if there is any conflict between a statute and the codified constitution, all or part of the statute can be declared ultra vires(越权) by a court, and struck down as unconstitutional. in the united states, the u. s. supreme court is the final interpreter of the constitution and has the power to rule on the constitutionality of the actions of the other two branches of government as well as those of the states and other governmental entities. through judicial elaboration of the meaning of the constitution, the court can broaden or limit the powers of the president and the congress. in so doing, the court breathes life into the constitution, making it a “living” document that changes as the nation changes.
codified constitutions normally consist of a preamble, which sets forth the goals of the state and the motivation for the constitution, and several articles containing the substantive provisions. the preamble, which is omitted in some constitutions, may contain a reference to god and/or to fundamental values of the state such as liberty, democracy or human rights.
2）uncodified constitution
as of 2010 at least three states have uncodified constitutions：israel, new zealand, and the united kingdom. uncodified constitutions (also known as unwritten constitutions) are the product of an “evolution” of laws and conventions over centuries. by contrast to codified constitutions, uncodified constitutions include written sources like constitutional statutes enacted by the parliament and also unwritten sources such as constitutional conventions, observation of precedents, royal prerogatives, custom and tradition. in the days of the british empire, the judicial committee of the privy council (枢密院) acted as the constitutional court for many of the british colonies such as canada and australia which had federal constitutions.
（2）functions of constitutions
1) state and legal structure
one of the key tasks of constitutions is to indicate hierarchies and relationships of power. in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. in contrast, a federal form of government is one in which the states form a union and the sovereign power is divided between a central governing authority and the member states. the u. s. constitution delegates certain powers to the national government and the states retain all powers not delegated to the national government. the relationship between the national government and the state governments is a partnership； neither partner is superior to the other except within the particular area of authority granted to it under the u. s. constitution.
2) human rights
human rights or civil liberties form a crucial part of a country’s constitution and govern the rights of the individual against the state. the united states and france each has a codified constitution with a bill of rights. perhaps the most important example is the universal declaration of human rightsunder the un charter. these are intended to ensure basic political, social and economic standards that a nation or intergovernmental body is obliged to provide to its citizens.
3) legislative procedure
another main function of constitutions may be to describe the procedure by which parliaments may legislate.for instance, special majorities may be required to alter the constitution. in bicameral(两院制的) legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force.
26、刑法
（1）general introduction
often the term “criminal law” is used to include all that is involved in “the administration of criminal justice” in the broadest sense.as so employed it embraces three different fields, known to the lawyer as (1) the substantive criminal law, (2) criminal procedure, and (3) special problems in the administration and enforcement of criminal justice……the phrase “criminal law” is more commonly used to include only that part of the general field known as the substantive criminal law.
capital punishment may be imposed in some jurisdictions for the most serious crimes.and physical or corporal punishment may still be imposed such as whipping or caning,although these punishments are prohibited in much of the world. a convict may be incarcerated（监禁）in prison or jail and the length of incarceration may vary from a day to life.
criminal law is a reflection of the society that produces it. in an islamic theocracy, such as iran, criminal law will reflect the religiousteachings of the koran （《古兰经》);in a catholic country , it will reflect the tenets of catholicism. in addition, cri

minal law will change to reflect changes in society, especially attitude changes. for instance, use of marijuana（大麻）was once considered a serious crime with harsh penalties, whereas today the penalties in most states are relatively light. as public tolerance of marijuana use grew, the severity of the penalties was reduced. as a society advances, its judgments about crime and punishment change.
（2）elements of a crime
obviously, different crimes require different behaviors, but there are common elements necessary for proving all crimes. first, the prohibited behavior designated as a crime must be clearly defined so that a reasonable person can be forewarned that engaging in that behavior is illegal. second, the accused must be shown to have possessed the requisite intent to commit the crime. third, the state must prove causation. finally, the state must prove beyond a reasonable doubt that the defendant committed the crime.
1) actus reus（犯罪行为）
the first element of crime is theactus reus. actus is an act or action and reus is a person judicially accused of a crime. therefore, actus reus is literally the action o￡ a person accused of a crime. a criminal statute must clearly define exactly what act is deemed “guilty”—that is, the exact behavior that is being prohibited. that is done so that all persons are put on notice that if they perform the guilty act, they will be liable for criminal punishment. unless the actus reus is clearly defined, one might not know whether or not ones behavior is illegal.
actus reusmay be accomplished by an action, by threat of action, or exceptionally, by an omission to act, which is a legal duty to act. where the actus reusis a failure to act, there must be a duty of care. such a duty can arise through contract, a voluntary undertaking, a blood relation, and occasionally through ones own creation of a dangerous situation.
2) mens rea(犯罪意图)
a second element of a crime ismens rea. mens rearefers to an individual state of mind when a crime is committed. whileactus reusis proven by physical or eyewitness evidence, mens reais more difficult to ascertain . the fact finder (jury or judge) must determine for itself whether the accused had the necessary intent to commit the act.
a lower threshold of mens reais satisfied when a defendant recognizes an act is dangerous but decides to commit it anyway. this is recklessness. wrongfulness of intent also may vary the seriousness of an offense. a killing committed with specific intent to kill or with conscious recognition that death or serious bodily harm will result, would be murder,whereas a killing affected by reckless acts lacking such a consciousness could be manslaughter.
3) causation(因果关系)
the next element is causation. often the phrase “but for”(若非—则无)is used to determine whether causation has occurred . for example, we might say "cain killed abel”, by which we really mean “cain caused abel’s death. ” in other words, “but for cains act, abel would still be alive. ” causation, then, means “but for” the actions of a, b would not have been harmed. in criminal law, causation is an element that must be proven beyond a reasonable doubt.
4) proof beyond a reasonable doubt
in view of the fact that in criminal cases we are dealing with the life and liberty of the accused person, as well as the stigma accompanying conviction, the legal system places strong limits on the power of the state to convict a person of a crime. criminal defendants are presumed innocent the state must overcome this presumption of innocence by proving every element of the offense charged against the defendant beyond a reasonable doubt to the satisfaction of all the jurors. this requirement is the primary way american system minimizes the risk of convicting an innocent person.
the state must prove its case within a framework of procedural safeguards that are designed to protect the accused. the state’s failure to prove any material element of its case results in the accused being acquitted or foundnot guilty, even though he or she may actually have committed the crime charged.
(3) strict liability
in modern society, some crimes require no more mens rea, and they are known as strict liability offenses. for instance, under theroad traffic act 1988it is a strict liability offence to drive a vehicle with an alcohol concentration above the prescribed limit.
27、被告人的主要权利
there are two fundamental aspects of the u. s. criminal justice system—the presumption that the defendant is innocent and the burden on the prosecution to prove guilt beyond a reasonable doubt. furthermore, criminal defendants have other rights too.
(1) the defendants right to remain silent
the fifth amendment to the u. s. constitution provides that a defendant cannot be compelled in any criminal case to be a witness against himself. in short, the defendant has the right to “sit mute”. the prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify if the defendant chooses to remain silent. by contrast, a defendant may be called as a witness in a civil case.
a defendant in a criminal trial may choose whether or not to give evidence in the proceedings. further, there is no general duty to assist the police with their inquiries.
the supreme court ruled that the government cannot punish a criminal defendant for exercising his right to silence, by allowing the prosecutor to ask the jury to draw an inference of guilt from the defendants refusal to testify in his own defense. the court overturned as unconstitutional under the federal constitution a provision of the california state constitution that explicitly granted such power to prosecutors.
(2)the defendants right to confront (对质)witness
the “confrontation clause” of the sixth amendment gives defendants the right to be confronted by the witnesses against them. implicit in this right is the right to cross-examine witnesses—that is, the right to require the witnesses to come to court, “look the defendant in the eye”，and subject themselves to questioning
by the defense. the sixth amendment prevents secret trials, and except for limited exceptions ,forbids prosecutors from proving a defendants guilt with written statements from absent witnesses. likemost of the protections given criminal defendants in the constitution, the right of confronting a witness has its origins in english common law. until the sixteenth century, the right of confronting witness was nearly absent from the anglo – american legal tradition. then, with the introduction of the right to trial by an impartial jury and the firm establishment of the presumption of innocence, the right of confrontation came to be seen as an integral part of the proper defense rights of the accused.
through cross-examination, defendants are allowed to test the reliability and credibility of witnesses. however, the right of cross- examination also has limits. for example, defendants may be denied the right to ask questions that are irrelevant, collateral, confusing, repetitive, or prejudicial.
(3) the defendants right to a public trial
the sixth amendment guarantees public trials in criminal cases. this is an important right , because the presence in courtrooms of a defendants family and friends, ordinary citizens and the press can help ensure that the government observe other important rules associated with trials.
in a few situations, normally involving children, the court will close the court to the public. for example, judges can bar public from attending cases when defendants are charged with sexual assaults against children. in recent years, legislators have been concerned about defendants who escape punishment for sexually molesting young children because the children are afraid to testify in the defendants presence. to address this problem, many states have enacted special rules that authorize judges—-in certain situations—-to allow children to testify via closed circuit television. the defendant can see the child on a television monitor, but the child cannot see the defendant. the defense attorney can be personally present where the child is testifying and can cross-examine the child.
(4)the defendant’s right to berepresented by an attorney
the sixth amendment to the u. s. constitution provides that "in all criminal prosecutions, the accused shall enjoy the right …to have the assistance of counsel for his defense." a judge must appoint an attorney for indigent defendants (defendants who cannot afford to hire attorneys) at government expense only if the defendants might be actually imprisoned for a period of more than six months for the crime. as a practical matter, judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is a possibility.
in a series of cases, the u. s. supreme court ruled that american indigents do have a right to counsel, but only in criminal cases. the federal government and some states have offices of public defenders which assist indigent defendants, while other states have systems for outsourcing the workto private lawyers. a judge normally appoints the attorney for an indigent defendant at the defendants 1 first court appearance. for most defendants, the first court appearance is either an arraignment(传讯) or a bail（保释）hearing.
the job of defense counsel at trial is to prepareand offer a vigorous defense on behalf of the accused .a proper defense often involves the presentation of evidence and the examination of witness, all of which requires careful thought and planning. good attorneys, like quality craftspeople everywhere, may find themselves emotionally committed to the outcome of trials in which they are involved.
28、合同法
a contract is a legally enforceable agreement between two or more parties with mutualobligations. contracts can be in writing,orally or verbally agreed upon (parol contracts)or created through the actings of the parties. theremedy at law for breach of contract is usually “damages”(损害赔偿)or monetary compensation. in equity, the remedy can be specific performance of the contract or an injunction.the importance of contract stability is emphasized by article i § 10 of the u. s. constitution, whichprovides that “no state shall … pass any…law impairing the obligation of contracts. ”at common law, the elements of a contract are mutual assent and consideration(对价).
(1) mutual assent: offer and acceptance
at common law, mutual assent is typically reached through offer and acceptance, that is, when an offer is met with an acceptance that does not vary the offer’s terms. the requirement is known as the “ mirror image” rule. if a purported acceptance does vary the terms of an offer, it is not an acceptance but a counteroffer and, therefore, simultaneously a rejection of the original offer.
(2) classification of contract
1) express contract and implied contract.
an express contract is one in which the terms are stated by the parties; it may be either an oral or written contract. an implied contract is one that is inferred from the conduct of the parties.
2) bilateral contract and unilateral contract.
a bilateral contract is one in which the parties exchange promises to do some future act. for example, you agree with the car dealer that you will pay for your car when you take delivery next week. each of you has promised to do something in the future:the dealer to deliver the car and you to pay for it. in contrast, a unilateral contract is one in which one party acts immediately in response to the offer.
3) executory contract and executed contract.
an executory contract is one in which some or all of the terms are uncompleted—-the car deal in above paragraph , for example. an executed contract, then, is one which all terms have been completed. for instance, you have eaten your meal and paid your bill at the restaurant.
4) void, voidable and unenforceable contract.(无效、可撤销和不可强制执行的合同)
the terms “void, voidable and unenforceable” are relevant in situations where there is a breach of contract or when one party fails to comply with the terms of the agreement.a void contract is a nullity from its beginning, and damages do not result. a voidable contract is one that is binding until it is disaffirmed or canceled by the party with the authority to do so. in many ways, marriage is a contract that either party may rescind by obtaining a divorce. unenforceable contracts are those that meet the basic common law elements for contracts but lack some other additional le- gal requirements such as being signed in front of a notary public(公证人).
29、侵权法
a tort, in common law jurisdictions, is a wrong(不法行为) that involves a breach of a civil duty (other than a contractual duty) owed to someone else. it is differentiated from a crime, which involves a breach of a duty owed to society in general. though many acts are both torts and crimes, prosecutions for crime are mostly the responsibility of the state, private prosecutions being rarely used；whereas any party who has been injured may bring a lawsuit for tort. one whocommits a tortious act is called a tortfeasor（侵权行为人）.
a person who suffers a tortious injury is entitled to receive “damages”(损害赔偿金), usually mone- tary compensation, from the person or people responsible for those injuries. tort law defines what a legal injury is and, therefore, whether a person may be held liable for an injury he or she has caused. legal injuries are not limited to physical injuries. they may also include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. tort cases therefore comprise such varied topics as auto accidents, false imprisonment, defamation, product liability (for defective consumer products), copyright infringement, and environmental pollution, among many others.
in much of the common law world, themost prominent tort liability is negligence. if the injured party can prove that the person believed to have caused the injury acted negligently, that is, without taking reasonable care to avoid injuring others—-tort law will allow compensation.
furthermore, tort law also recognizes intentional torts, where a person has intentionallyacted in a way that harms another, and “strictliability” or quasi-tort, which allows recoveryunder certain circumstances without the need to demonstrate negligence. hence, torts may be divided into negligence, intentional torts, and quasi-torts.
(1)negligence
the standard tort action is negligence. the tort of negligence provides a cause of actionleading to damages , or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. negligence actions include claims coming primarily from car accidents and personal injury accidents of many kinds including clinical negligence, workers negligence and so forth. product liability cases, such as those involving warranties, may or may not be considered negligence actions.
negligence is a breach of legal duty to take care resulting in damage to the plaintiff. the legal burden of proving elements of negligence falls upon the plaintiff. the elements in determining the liability for negligence are:
a) the tortfeasor owed a duty of care;
b) there was a breach of that duty；
c) the tortfeasor directly caused the injury, that is, there was proximate cause；
d) the plaintiff suffered damage as a re, suit of that breach；
there are a number of situations in which the courts recognize the existence of a duty of care. inaddition to a general duty of care, a duty may alsoarise as a result of some sort of special relationship between the parties. examples include one road-user to another, employer to employee, manufacturer to consumer, doctor to patient and solicitor to client .
(2) intentional torts
intentional torts include certain torts arising from the occupation/ use of landand trespass to chattels. any direct interference,such as entering land without the occupiers reputation.
(3) quasi-torts
quasi-tort means a tort for which a non-perpetrator is held liable. in a quasi tort, a person who did not actually commit a wrong is held liable. for instance, a master will be held liable for a tort committed by a servant under the principle of vicarious liability.
(4) strict liability
tort liability is customarily divided into intentional tort liability, negligence liability and strict liability. strict liability makes some persons responsible for damages their actions or products cause, regardless of any “fault” on their part. strict liability mainly includes but is not restricted to the following situations:
abnormally dangerous (ultra hazardous )activities: strict liablity often applies when people engage in inherently hazardous activities, such as bursting dams, “blow-out” oil wells testing rocket motors, or blasting on a construction site. if a plaintiff is injured by these activities—-no matter how careful the doer was—-he/she is liable for the injury.
products liability: strict liability also may apply in the case of certain manufactured products. in strict product liability, typically anyone who is engaged in the stream of the product (from the manufacturer to the whole-saler to the retailer, or all of them) can be held responsible if the product was defective and someone was injured. there is no need to prove negligence but the injured party must prove that the product was defective.
30、公司法
corporate law is a part of a broader companies law(or law of business associations). inuk, business associations can includepartnerships, trusts (like a pension fund) , corporations limited by shares or companies limited by guarantee (like some universities or charities).us corporations are generally classified into c corporations, s corporations, close corporations, public corporations, professional corporations and non-for-profit corporations.
the four characteristics of the modern corporation are:
(1) separate legal personality of the corporation (the right to sue and be sued in its own name i. e. the law treats the company as a human being);
(2) limited liability of the shareholders (so that when the company is insolvent, they only owe the money that they subscribed for shares);
(3) shares (usually on a stock exchange such as the london stock exchange,new york stock exchange);
(4) delegated management ( in other words, control of the company placed in the hands of a board of directors).
one of the key legal features of corporations is their separate legal personality , also known as “personhood" or being “artificial persons”. however, the separate legal personality was not confirmed under english law until 1895 by the house o￡ lords in salomon v. salomon & co. ,ltd.
there are certain specific situations where courts are generally prepared to “pierce the corporate veil”(揭开公司面纱)to look directly at, and impose liability directly on the individuals behind the company. the most commonly cited examples are：
a) where the company is a mere fa?ade（空壳）；
b) where the company is effectively just the agent of its members or controllers；
c) where a representative of the company has taken some personal responsibility for an action；
d) where the company is engaged in fraud or other criminal wrongdoing ；
e) where permitted by statute (for example, many jurisdictions provide for shareholder liability where a company breaches environmental protection laws)；
f) in many jurisdictions, where a company continues to trade despite foreseeable bankruptcy the directors can be forced to account for trading losses personally.