This is my second time trying to translate this kind of material.
I thought that I’d already understood what it discribes in those paragraphs.
Actually,I was not so satisfied at that.
The day before yesterday I had a class with my lecturer.
We disscussed about this issuse which I must finish by Sunday.
He asked me numerous questions about those vague vocabulary.
I have to recongnize that I didn’t comprehend entirely.:(
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The rule applied in the rescue cases now has many critics and few defenders. Yet it shows remarkable staying power. It not only has resisted a general trend toward expansion of causes of action in tort law, but it continues to govern the outcomes of cases where the judges themselves profess to be dismayed at the defendant’s callousness.
運用在營救判例中的條例現今已造成了許多的批評聲浪及少許的抗爭者。它尚未表現出明顯的持久力,它並非僅透過擴張侵權訴訟拒絕普遍流行,亦不斷地影響了法官們公開聲稱對麻木不仁對待被告感到失望的判例的結論。
Furthermore, as mentioned, the no-duty-to-rescue rule has migrated in recent years from a part of tort law affecting relatively few people to a rather prominent position in constitutional law. Federal courts have used the odd rescue cases as a starting point for their analysis of the issues in constitutional tort litigation involving whether local government officials can be held responsible for the failures of policemen, firefighters, social workers, and the like, to come to the aid of persons in danger.
更甚者,如同所陳述的,無營救義務條例近幾年內已從關係到少數人的部份侵權法在憲法中重新安置並扮演了相當重要的角色。聯邦法院已經在憲法侵權訴訟中使用了奇特的營救判例做為他們關鍵分析的起點,意味著當地的政府官員能否為身陷險境的人們提供幫助的警方、消防人員、社會工作者等的疏忽負責。
What is at stake in these newer decisions is nothing less than the courts’ presentation of an image of what type of government we have. It thus seems worthwhile to inquire further into the usual explanations of the rule, America’s persistence in clinging to it, and the relationship it bears to the issue of public duties to act.
在這些較新的判例當中最為要緊的是所有的法官們對於我們的政府型態形象的提供。它似乎是更值得去對一般的條款做更深入的注解。美方對此相當堅決且容許這關係行使在公眾權利的議題上。
As mentioned, the standard formulation of the rule under discussion is that there is no duty to come to the aid of an endangered person, except when the potential rescuer is responsible for that person’s situation or distress, or when the two are linked in a “special relation”.
如同所提及的,除了當潛藏的營救者對於人們的處境或危難或兩者間有著特別的利害關係外具有責任,在條例討論指標性的規劃中對於深陷危險的人不具備有營救的義務。
But the law’s idea of special relationship is not the one that might first occur to a person in the street if she were asked what persons she is legally obliged to aid. The first group of situations in which the courts recognized a duty to rescue involved providers of various services, such as transportation, to the public.
但在這特殊關係中的法律觀念並不代表是第一個在街上發現的人就必須對人們在法律上擔負起營救的責任。法官們在第一類的情況當中對營救責任的認定意味著供應者提供許多的服務,譬如大眾運輸工具。
This category was later expanded to include certain other relationships, usually where there was some expectation of protection on one side and some potential or existing financial benefit on the other. To date, the special relationships that have been recognized on a case-by-case basis arise mainly from employment, contractual, or other economic arrangements: shipmaster and crew, innkeeper and guest, shopkeeper and customer, carrier and passenger, educator and pupil, employer and employee. In this world of discourse, one’s nephew, one’s neighbor (and the neighbor’s baby) are “strangers.”
這類是稍後擴張涵蓋了其他確定的關係上,一方通常有些許預期的保護,而另一方則有一些潛在或現存的金融獲利。至今,特殊的利害關係主要已經逐漸地從雇主關係,或其他一些有利可圖的契約約定當中,譬如船長及船員,旅館主人和訪客,店經理及顧客,運送者與乘客,教師及學生,雇主與員工的基準點被認可。在世人的論述當中,某人的姪兒,某人的鄰居和鄰居的嬰兒皆為陌生人。
Yania v. Bigan came close to being within traditional exceptions to the no-duty-to-rescue rule. If Bigan had shoved Yania into the trench, or if Yania had been working for Bigan, Bigan would have been obliged to take reasonable steps to try to save Yania from drowning. It seems plain that, if the Pennsylvania judges had wished to do so, it would have been relatively easy to fit the Yania case at least within the “special relationship” exception. Yania was, after all, on Bigan’s land with Bigan’s permission, and Bigan had taken advantage of the business visit to get some help with the job of draining his trench. Some courts, in fact, have broadened the list of special relationships to include the connection between an owner or occupier of land and his invitee.
Yania訴Bigan一案對無營救義務條例而言是較接近傳統反對的範圍內。假如當Yania已為Bigane工作, Bigan將其推入溝渠中, Bigan則有責任採取行動將其救出以避免其溺斃。它似乎那樣地顯而易見,是否賓州的法官們已試圖如此, Yania的判例在反對特殊利害關係的範圍中至少已是妥當的。Yania畢竟是經過Bigan的允許在他的土地上,且Bigan已在商業訪談時因溝渠的排放獲得利益得到幫助。事實上,一些法官已放寬了包括連繫地主,土地持有人及其訪客的特殊利害關係名冊。
Considering the overall success of American lawyers in persuading the courts to recognize new causes of action for personal injury, it is striking how hesitant the courts have been to stretch the exceptions in the rescue cases. Why, one wonders, has the time-honored process of adapting judge-made tort law to changing social needs and expectations stalled with this set of issues? If tort law is indeed, as an American Bar Association report has described it, “a mirror of morals and a legal vehicle for helping to define them,” what set of beliefs is so strong as to require “common humanity” to be subordinated to them?
顧及美方律師在說服法官認可個人傷害的新判例中全面性的成功,衝擊了法官在營救判例的案外案濫用中所抱持的遲疑態度。當然,值得震驚的是,關於法官們為了社會需求及期盼而去修正侵權法的古老過程是否延誤了這個議題呢?假如侵權法是真的,那麼當美國律師協會的報告當中已描述”為了達到倫理道德的典範和合法的手段而去為它們下定義”當教義是如此堅決時,一般的人情世故反位居次要?
The answers to these questions are not easy to find in the legal literature. Among the explanations frequently put forward for the no-duty-to-rescue rule, there is one that seems plainly mistaken: that which locates the origins of the rule in the “extreme individualism typical of Anglo-Saxon legal thought.” In fact, there is nothing especially individualistic or Anglo-Saxon about the origins of the rule. Affirmative legal duties to come to the aid of another were unknown, not only in early English
law, but to most other primitive legal systems. In simple societies where law—and law enforcement mechanisms—exist in but rudimentary form, they are typically concerned with the limited objectives of preventing and punishing—or making restitution for—concrete acts like murder and theft.
在法學的文獻當中,問題的答案並非是顯而易見的。在這些履次為無義務營救條例所提出的解釋當中,有一個似乎是顯而易見的錯誤: 盎格魯撒克遜人的法學思想當中,在極具代表性的利己主義典型裡設定了條例的起源。事實上,條例的起源與盎格魯撒克遜或是利己主義並無多大特別的關聯性。不只在早期的英國法律或是其他大部份原始的的法學系統當中,對於協助另一個人明確的法律義務上是未知的。在普通的社會當中,所存在的法律及其實行的技巧相當於雛型。它們在預防及處罰的對象限制上,或賠償類似謀殺和偷竊等具體行為上,都具有代表性的影響。
The encouragement of affirmative acts of good behavior, and sanctions for their omission, are left to other social norms—custom, convention, and religion. In early stages of legal development, the absence of an existing legal pigeonhole is often seen as a sufficient reason in itself for refusing to allow a new type of claim. Thus a primitive distinction between the active infliction of harm and the failure to prevent it was long considered satisfactory as both an explanation and a justification of the rule denying civil damages for failures to rescue. Prosser and Keeton put the matter as follows:
為鼓勵良行的明確法令以及對於疏忽所作的制裁影響了社會其他風俗習慣和宗教標準。在法律發展的初期,缺少現存的合法出入口經常被視為一種拒絕允許新型態所有權的充份理由。當條例中的解釋和理由抵觸了營救疏忽所造成人民的損傷, 因此,介於主動施加傷害和預防疏忽間所形成的原始比對是需慎重考慮才能令人滿意的。Prosser和Keeton置此問題如下:
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