法学毕业论文之外文翻译

毕业文外文资料翻译


学院(系) 法学院
专 业： 法学二专
姓名：
学 号：
外文出处：1Frontiers of Law in China20105
2Center for Comparative Literature and Cultural Studies Monash University Melbourne
附件： 1外文资料翻译译文2外文原文
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附件1：外文资料翻译译文

死刑听证制问题研究
YUguan yang
摘：
死刑严重罪犯惩治案子举行公众听证制似保证司法公正性佳方式死刑案公众听证制维护司法公正性保障权利着重意义早已获国外关注文解释美国相关死刑听证制机构条件权利义务角度定义公众听证制性质分析死刑公众听证制特殊涵介绍外国死刑听证制案例分析前中国死刑公众听证制实行通建议实现听证制推进
关键词：死刑案公众听证制国际标准中国实践
死刑案听证制必须严格遵守犯罪公正性国际标准尤美国相关公众听证制公众听证制包括公开审判公开宣判两者包括方面作者想分享联合国相关文件死刑案公开审判宣判理解
1公众听证制意义求
11公众听证制权利义务方面基原理
公众听证制包括公开审判公开宣判公开审判指法庭系列活动调查证调查案件事实双方证交换等公开审判核心审判活动处理场公开起诉辩护陈述询问证核查证法庭陈词组成形式公开审判两求：首先包括案件名称起诉罪名告身份法庭审判时间点出庭员信息必须提前公布次必须公众旁听提供足够便利应允许参加旁听记者应允许审判进行报道公开审判参加员限制某特定类型法律法规指定例外法庭审议想参加旁听拒绝法庭活动尤询问证检验证应该公开进行
宣判非法律明文规定刑事案件宣判应公开进行告权接宣判文件告放弃拒绝国家司法部门案件结果公众果告宣判结果服诉权阻止司法机关公布宣判公众判断仅维护告权利反映国家司法公正实现社会公众解案件情况权利国家告放弃权利取消案件结果公布
12死刑公众听证制特殊含义
牵涉告生命死刑案件普通刑事案件西方国家普通刑事案件告放弃审判权利然死刑案件中告证罪意愿公开审判避免
死刑案件中告亲朋友普通众会更关注审判关案件信息揭露应更加详细包括死者告信息案件具体情况宣判原案外国家区死刑案件总数减刑情况执行情况应揭露公众便公众解政府死刑政策处理案件原
现世界国家没公布死刑相关数例日公众知晓案死刑执行信息合计数公开联合国济社会理事会已求秘书长视察成员国1973年国隔5年死刑执行情况没国响应项关否保留死刑调查显示62国家中87完全视4国家反映认应取决死刑应执行总数
国家理性认应保留死刑死刑符合国家前情形包括民意愿然种考虑取决公众否想保留死刑前必须想公众公布死刑信息果死刑数没想公众公开够死刑执行必建立民意愿呢？公开死刑数公众获理解死刑权利知晓真相完善法政府知晓民意愿政府方面援引公众意见方面意公众隐瞒死刑作相关信息便相矛盾果民意国家说重考虑素政府应形成民意提供解信息渠道果国家希民意作 保留死刑重原拒绝揭露死刑信息合理
宣判信息公开死刑执行面死刑家着特殊重意义已宣判死刑执行死刑前然享正权利权益保障例法律判死刑罪犯罪行应更高级法庭进行复核应拥寻求赦免减刑权利没罪犯家提供案件信息会行权利带阻碍程序正危险中
死刑执行应公开确保公众知悉权宣判死刑执行公布案件受害者家友知道司法公正罪犯已呗惩治公众解案执行国家死刑政策总体情况想犯罪现实法律力量促停止犯罪
2中国类似死刑公众听证制探索
公众听证制中国刑事司法体系基原中华民国宪法第125条规定：法律规定特情况外律公开进行中华民国刑事诉讼法第11条规定：民法院审判案件法规定外律公开进行
21死刑公众听证制准备
中华民国刑事诉讼法第151条规定：民法院决定开庭审判应进行列工作：
　　（）确定合议庭组成员
　　（二）民检察院起诉书副迟开庭十日前送达告告未委托辩护告知告委托辩护者必时候指定承担法律援助义务律师提供辩护
　　（三）开庭时间点开庭三日前通知民检察院
　　（四）传唤事通知辩护诉讼代理证鉴定翻译员传票通知书迟开庭三日前送达
　　（五）公开审判案件开庭三日前先期公布案告姓名开庭时间点
22死刑案听证制参加
公众听证制显著表现允许公众进行旁听中国参加庭审限制例法庭容量限制许旁听死刑案件时候没座位显然会印象公众听证制效果
23公开法庭记录文件
毕竟少数够参加庭审够准时达法庭等原参加旁听甚什听者理解公众听证会案子果法院通特定渠道公开法庭记录会提高听证会作非社会成员需阅读案完整法庭记录案子监督责机构辩护律师案子相关员案子兴趣新闻机构研究案子学者想特定案子完整庭审记录庭审记录公开取决判断志需员公开果庭审记录公开需费法庭获记录索够参加报道公众听证知道庭审否公正
24公开宣判模式
起诉议案死刑案宣判透明度尤宣判应法律仅反映公众告法法律传播教育起作
传统言宣判会法院门口公场贴公告部分容发表新闻中者案子做成册子发表年鉴三种方法存中国然种死刑公开方式限制通种公告方式数限公开宣告作限新闻发表死刑案种正式公开方式通常新闻角度选择性发表案子节选部分宣判中国案子编辑非系统化没固定结构完整反映死刑案着网络普网络发表死刑案够避免传统模式弊端
25公开死刑案二审听证
中国法庭二审外国二审基区国外死刑案件二审通常处理事实问题法律问题尤程序证收集否合法中国二审更广泛回顾案件事实法律没局限诉抗诉提出问题庭审模式二审审没区甚认审判延伸二审应适公众听证制度
26死刑复核透明度
2007年1月开始死刑复核权力回收中国民高法院结束26年国家死刑复核权部分放权高院集合死刑复核权确保死刑案件处理维护权展开谨慎处理死刑案政策形成死刑统标准着重意义回收死刑复核权高院发布文件统死刑复核程序文件包括高院关死刑案件问题规定确立告审问程序调查核实证采取辩护律师意见完善死刑复核程序等已显著成效
根中国现行刑事诉讼法死刑复核程序第三编审判里意味着法律制定者认死刑复核程序审判程序部分高院收回死刑复核权应根法律进步完善死刑复核程序公众听证制问题研究死刑复核程序中必须遵守系列关公众听证制原刑事审讯方式法院应允许检察官辩护律师参加中样双方权利尤告方辩护权保障告方阶段行辩护权根定程序标准改变中国死刑复核程序行政质完善死刑案步骤
3结
国应根国情做决定保留死刑国家死刑案必须根已定国际法国法中公众听证制原处理果国立法关听证司法判例国际权法律刑事公正符者死刑公众听证制致相关国家应采取措施改善国立法判例
公正公开审判死刑公众听证制完善必公正公开审判仅益整刑事诉讼程序中国法律体制建设益维护中国宪法权国际权求刑事司法标准

外文资料翻译译文二
新西兰奥特罗瓦公正法律
————两案例学

摘：文通两案例学分析新西兰奥特罗瓦法律实践殖民陆非法文明混乱关系奥特罗瓦法律殖民利益直接挂钩认哈克案迈尔五世万佳市议会案关辩护法令着重法律权威性差异性排挤间关系两案法官说毛利法律规定文化法律秩序原想突根殖民联系毛利法律文化文明威胁间表现出关系法律秩序展现法律种文化偏差惯操控反映帕克哈（欧洲新西兰士族）利益挑战浮出水面威胁已法律案子里展现出原威胁暴露原控制着暴力公众开批评门许实质体系攻击更厉害法令暴露法律公正性挑战仅法律成种特定文化阶层利益反映改变公正服务
关键词：殖民哈卡公正毛利法律新西兰帕克哈
1 暴力问题
1978年新西兰政府委托报告众周知罗珀报告报告种坏境研究暴力行然许称赞报告普遍注意毛利评许批评家认毛利问题商议失败影射出社会政治存更加普遍公正现象制造暴力创造社会条件例泰特海·哈日怀瑞 争说关毛利暴力间关系报道应该考虑暴力发生社会文化环境换句话说必须考虑权利财富社会中均分布关系暴力确立维持产生必须脱离法律法规犯罪件事考虑发生暴力特殊历史文化环境样哈日怀瑞关心仅仅报道写趋暴行素什：系统化制度化种族义法律刑事司法系统暗示

2 代表性暴行：哈卡案
新西兰奥特亚罗瓦关犯罪媒体报道调查中斯布雷发现：度[毛利太洋岛民]表示允许犯罪行：暴力性描述案件结局报纸更乐意毛利太洋岛民标签白种欧洲
样身份标志物刑事罪行报告基础时重新申明普遍假设族裔群体犯罪行间关联事实斯布雷接着指出：错误夸张报道认某阻碍毛利太洋群岛关系活动（帮派成员强奸逾期居留）重点进步支持1986年提交报业评议会中指出报纸报道未发表210份调查中非白种[者非欧洲裔新西兰]种族确定犯罪暴力项目中少数标志常弄乱（斯布雷）

3媒体表现
媒体事件反应快证实斯布雷概述种族义倾奥克兰明星第份报纸头版标题写：匪帮学里暴动学生哈卡派怒殴毛利太洋岛民中部分学生描述匪帮事实穿识＇补丁＇ 文章身承认
样新西兰先驱报社题目＇没方暴力＇认＇哈卡＇意犯种罪行没采取位编辑坚持认学宽容方次袭击已毛利激进派计划发意行关＇激进派＇身份言附开始流传媒体压倒性结捕哈卡攻击者果新西兰保持安全法律必须坚持
澳利亚新西兰环境差异里值着重较新西兰法律制度定程度澳利亚法律承认土著法律特马博v昆士兰（第2号）（1992）高等法院承认原住民土权程中推翻概念澳利亚时候概念信仰提供法律支持明显法律文化系统属土著居民1788年澳利亚居住权院校法律承认

4 法律权
遥感紧迫性需解决情况＇哈卡案＇权委员会收集＇白种意识形态＇范例毛利反意见发表份初步报告新西兰种族谐声明问题该报告公众提交权调解求受访者询问哲学关哈卡问题正义考虑手中调结果项研究分七标题（新西兰遇容忍公差新西兰作文化社会种族义双文化义土文化认语言法律权利）分两类组织报告：观点中心题基础新西兰单文化社会新西兰观点A中方观点强调新西兰元文化群体社会 ＇哈卡攻击者观点非常清晰表出现敌态度受访者形容组织行凶杀暴力阴谋＇哈卡攻击＇愚蠢误导青少年正行：原始野蛮决定争辩手段＇差遇＇节中争辩说毛利特殊规定＇种族＇事情公然毛利享文明文化时文化享受特殊遇中＇禁忌＇＇峡谷＇例子中异教徒做法整社会带便判决许反响受访者认等民实现毛利根认新西兰时实现 需公正等差异否定作分裂义种族义毛利俗立场法律身份毛利指责种族紧张关系原
观点法院决定提供解释确正沃克指出布莱克伍德反应证明英国审判方式白种法律秩序概念早认毛利文化政治完整屑断言

5案例二：迈尔V万佳区议会
法律种揭示实例方式毛利法律风俗已代表性迈尔v万佳区法院断言威胁然直接涉暴力例子案件涉行审判长选择解释法律权威攻击外种特殊情况种方式显示重位法院作物理空间象征统治关系空间建筑体现事件发生1995年10月31日肯梅尔众周知毛利活动家法庭协助告袭击朋友迈尔法官表示进行karakia法院提出诉讼前传统毛利进行祈祷法官爱迪恩说：作法官karakia期间出现特殊境况合适迈尔提出问题karakia身说法尝试法官情况进行karakia

法官裁决仅仅迈尔话语回应反应警告威胁挑战法律作出反应锯时间事件发生点1995年10月万佳区法院少会注意迈尔年早时候城镇参毛特欧花园职业迈尔频繁媒体描绘＇毛利激进＇极力反官方竞选毛利权问题许确实怀疑法律尊重然迈尔没公开提出质疑：法庭方面法官指示非违反毛利法律迈尔法庭行动文化法律相致：真正威胁迈尔破拒绝程序更选择毛利法律作回应法官裁决公开揭示法律暴力行
出席缺勤确立解空间活化通差异（订购分类）＇听＇分析创造方面提出定义者说什必须法律规定继续说出口

取消抵押品赎回权操作中引默认实例中问：什继续行权力必须代政权言保持沉默？体前通阐明法律范围排网站产生法律？某种程度样构排提供言语行性条件出未审查文字必然完整理解取消抵押品赎回权审查通产生法形容话语生产机制
6 暴力威胁
哈卡案例简单认毛利威胁法律权威没包含规边缘身违反束缚沃克激进暴力潜力描述迈尔企图说karakia相关疾病提供威胁方式解释法律回应法官清楚里威胁说作犯罪组织说反＇法律＇概念犯罪动机种威胁正义名义犯罪果福柯指出政治权力通潜作战形式永远重复记载衡 社会机构济等语言中机构身登记种行理解意图重建身秩序叛乱通类似公正现象唤起历史公正排斥种行认考古家谱考古试图揭露列入等级秩序权力家谱通恢复知识寻求反抗单绝话语
反殖民＇暴力＇目仅仅需推翻殖民者取代压迫体制身正萨特指出石二鸟时摧毁压迫者压迫留死通样呼吁外套秩序通赋予法律权威镇压排外透明化＇暴力＇行威胁现存系统通诉诸现公试图引起法律权威压制排斥差异间关系注意果认行应度公法律失合法性说什法律规定遗忘激进义该法成出现公正非法公物种方式思考法律没返回野蛮天真压迫迫害法律成法律必须始终掩盖镇压作刑事体数字作暴力秩序立面然努力样做特遇挫折挑战时必须心度反应激烈
许揭露法律挑战谓正义行身攻击制度身更力法律视种特定文化热情体现双方拉拢干吸纳力够服务端法律间法律已前系统运行方式重区相信判决永远会终普遍总局部完整换言司法永远会眼前会未做做





附件2：外文原文
Study of Issues over Public Hearing in Death Penalty Cases
Abstract
The death penalty is involved in the most severe criminal offenses Holding public hearing in these cases seems to be the best way to guarantee judicial fairness A public hearing in death penalty cases is of important significance in safeguarding judicial fairness and protecting human rights which has attracted a high level of attention domestically and internationally This paper interprets the requirements of the United Nations’ related agencies for the public hearing of death penalty cases defines the nature of public hearing in the aspects of rights and obligations analyzes the special nature of the requirements for the public hearing of death penalty cases introduces some practices and issues of the public hearing of death penalty cases in foreign countries analyzes China’s present practice of the pubic hearing of death penalty cases and puts forward some suggestions and channels to realize it
Key words
Death penalty cases public hearing international standard China’s practice
·········
The hearing of death penalty cases shall strictly follow the international standards of criminal justice especially relevant UN provisions regarding the public hearing The public hearing includes public trial and public judgment each of which consists of several aspects The author intends to share some understandings of issues relating public trial and public judgment of death penalty cases in relation to the relevant UN documents

1 Meanings and Requirements of Public Hearing

11 Rationale of Public Hearing in the Aspects of Rights and Obligations
The public hearing consists of a public trial and a public judgment The public trial refers to a series of activities in court ie examining the witnesses processing the facts of the case and admission of the evidence in the presence of the interested parties and other participants The core of the public trial is the conducting of trial activities which are comprised of presenting public prosecution bill and defense statement questioning witnesses verifying evidence and making last statement in courts There are two requirements for the public trial in form First information shall be made public in advance including the name of the case the criminal offense charged the identity of the accused the time and place of the court trial and the composition of the court members and second sufficient convenience shall be provided for the public to attend the hearing any individuals shall be allowed to visit the court on the hearing and journalists shall be allowed to report the hearing Participation in the public trial shall not be limited to certain types of people with some exceptions prescribed by laws and regulations such as court deliberation anyone that wishes to attend the hearing shall not be rejected all the trial activities especially the process of examining witnesses and examining evidence shall be made public and allow access for people to attend
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As for judgment unless otherwise specified by law judgment of any criminal cases shall be made public It is the right of the accused to receive document of judgment the accused can not waive or reject the state judicial organ’s pronouncement of the result of the case to the public If the accused does not agree with the judgment he can appeal or complain but he can not stop the state judicial organ from making the judgment public Public judgments not only safeguard the right of the accused to the judgment but also reflect the fairness of the state judicature and fulfill the society’s right to know about the situation of the case For this reason the state’s responsibility of making judgments public can not be released because the accused gives up the right

12 The Special Nature of Public Hearing of Death Penalty Cases
Death penalty cases are different from ordinary criminal cases because the life of the accused is involved In some western countries the accused of ordinary criminal cases can waive the right to trial While in death penalty cases even if the accused expresses his will to plea guilty the public trial can not be exempted
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In death penalty cases the accused his relatives and friends and the general public pay more attention to the trial hence the information disclosed shall be more detailed including the basic information of the death row prisoner the details of the case and the grounds and reasons for the judgment Except for individual cases the total number the commutation and the execution of death penalty cases of the nation and each local area shall be disclosed so that the public can understand state death penalty policy and various reasons for the fair management of cases
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Currently some countries in the world do not publish the relevant data on death penalty For example in Japan the public is not provided with the information on individual executions but detailed aggregated statistics are provided The UN Economic and Social Council has requested that the SecretaryGeneral survey member states on their use of capital punishment at fiveyear intervals since 19737 but the response rate has been very low In a survey on 62 countries that retain the death penalty 87 did not respond at all and only 4 countries reported on the offences upon which the death penalty may be imposed and on the total number of
executions8

·········
Some countries rational for retaining capital punishment is that capital punishment conforms to the national conditions including the will of the people12 It is of course a point of consideration whether the public are in favor of or want to retain death penalty or not Before considering the will of the people we should give the people information on death penalty If the data of death penalty is not made known to the people how can the necessity of death penalty be implemented based on it being the will of the people Only by publishing the data of death penalty can the public possibly have the right understanding of death penalty people can only put forward their opinions after knowing about the truth and then can the government know the true will of the people There is an obvious inconsistency when a state invokes the public opinions on one hand while on the other hand deliberately withholds relevant information on the use of the death penalty from the public If public opinions are really an important consideration for a country it seems the government shall facilitate the access to the relevant information so as to make such public opinions more informed It is unreasonable for a country to use the will of the people as an important reason to retain the death penalty but refuse to disclose to its own people the extent of death penalty
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The open information on the judgment and the execution of death penalty cases is of special and important significance to a person who faces the death penalty and his family A person who has been convicted of a crime and sentenced to death still enjoys the due process rights and other safeguards on his rights before execution of the sentence For example the prisoner under death sentence shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law13 and shall have the right to seek pardon or commutation of the sentence14 Failure to promptly provide the death row prisoner and his family information on the case may hinder their ability to exercise these rights hence placing due process at risk
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The execution of death penalty cases shall also be made known to the public to protect the public’s right to know The publishing of the judgment and execution of death penalty cases allow victims of criminal cases and their relatives and friends to know that justice has been done and the criminals have been executed allow the public to know the execution of specific cases and the overall situation of the state’s death penalty policy and show some people who are likely to commit crimes the power and force of laws thus deterring serious crimes19

2Explorations of the Relevant Issues over Public Hearing in Death Penalty Cases in China
Public hearing is the basic principle of China’s criminal justice system Article 125 of China’s Constitution provides that except in special circumstances as specified by law all cases in the courts are heard in public Article 11 of China’s Criminal Law provides that cases in the courts shall be heard in public unless otherwise provided by this Law
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21 Make Preparations for the Public Hearing of Death Penalty Cases
Article 151 of China’s Criminal Law provides that when a court has decided to open a court session it shall proceed with the following work (1) To determine the members of the collegial panel (2) to deliver to the accused a copy of the bill of prosecution of the procuratorate no later than ten days before the opening of the court session If the accused has not retained a defender he shall be informed that he may retain a defender or when necessary a legal aid lawyer may be appointed to serve as a defender for him (3) to notify the procuratorate of the time and place of the court session three days before the opening of the session (4) to summon the parties and notify the defenders agents ad litem witnesses expert witnesses and interpreters and deliver the summons and notices no later than three days before the opening of the court session and (5) to announce three days before the opening of the session the subject matter of the case to be heard in public the name of the accused and the time and place of the court session

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22 Attend the Hearing of Death Penalty Cases
The most prominent manifestation of public hearings is to allow the public to visit the court of hearing There are some constraints in attending court trials in China
For example the capacity of the court room is generally limited and it may be not large enough for the people to sit in on hearings of death penalty cases As a result some can not attend court hearings which affects the effect of public hearings
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23 Open Court Records and Other Documents
After all only a limited number of people can attend court trials and some people can not arrive at the court on time for various reasons and the visitors may not hear everything nor understand it correctly For cases that have public hearings it will improve the effect of public hearings if the court can publicize court trial records (transcript) through certain channels Not every member of the public needs to read the complete court record of a certain case People or organs that are obligated to supervise the case the defense lawyer people who are related to the case news agencies that are interested in the case and scholars who study the case are the ones who will desire a full transcript of a given case As a result the publicity of court records differs from that of the judgment and can be made available only to those who have a need to it As providing court records involve some cost the court may charge those who need the records Since public hearings can be attended and reported people may know whether court trials are fair

24 Modes of Public Judgment
The transparency of the bill of prosecution and the judgment of death penalty cases especially the reasons for judgment and law applied not only reflects the public handling of the accused but also plays the role of legal propagation and education
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Traditionally the judgment is publicized through posting a bulletin at the door of the court or public places or publishing part of the content in the press or publishing the collection of cases on the yearly basis All three ways are used in China However there are limitations imposed by these types of posting in the time and place when publishing the judgment of death penalty By posting bulletins as only limited number of people can access the bulletins hence the influence of publishing the judgment is limited Reporting on death penalty cases in the press is not a formal way of publicity which normally selectively publishes some cases from the angle of news reporting and does not include the complete judgment compilation of cases has not been systemized in China and the compilation is not structured and can not completely reflect death penalty cases With the popularization of the internet publishing the judgment of death cases in the internet can avoid the disadvantages of the traditional modes mentioned above
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25 Open Hearing of Second Instance of Death Penalty Cases
There is a fundamental difference between China’s court of second instance and that of foreign countries The court of second instance in criminal cases of foreign countries normally does not deal with factual issues of the case but its legal issues especially whether the procedure and evidence collection is legal China’s second instance extensively reviews the issues of facts and law of the case and is not restricted to the issues raised in the appeal or counterappeal Consequently there is not much difference in the trial mode of the second instance comparing to the trial which can be considered as the extension of the trial and various stipulations of public hearings applicable to the trial shall also be applicable to the appeal session (second instance)

··········
26 Transparency of the Review of Death Penalty Cases
Starting from January 1 2007 the review and approval power of death penalty has been taken back by the Supreme Court of China This puts an end to the history of 26 years of partial delegation of the power of death penalty review The Supreme Court’s centralized exercise of the review and approval of death penalty is of significance in guaranteeing the quality of death cases handling safeguarding human rights deploying the policy of less and more cautious death sentencing and unifying the applicable standards for the death penalty After taking back the review and approval power of the death penalty the Supreme Court promulgated some documents standardizing the review process of the death penalty These documents included Provisions of the Supreme Court on Several Issues Concerning the Review of Death Penalty Cases which establishes the procedures of interrogating the accused investigating and verifying evidence and adopting the opinions of the defense lawyer and improves the review process of death penalty Remarkable achievements have been made in the review work of the death penalty
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According to the structure of China’s present Criminal Procedural Law the review process of the death penalty is under Part 3－Trial This implies that the law makers consider that the review process of the death penalty as a stage of the trial process For this reason after the Supreme Court took back the review and approval power of the death penalty it shall further improve China’s review process of the Study of Issues over Public Hearing in Death Penalty Cases death penalty according to the law Therefore a series of principles of public hearing requirement and method for criminal trial should be observed in the death penalty review process and the court should allow the prosecutors and defense lawyers participate the process Thus both parties’ procedural rights especially that of the accused can guarantee and the defendants may exercise the right to defense at the final stage of criminal procedure Changing the administrative nature of China’s death penalty review process according to the standards of due process would improve every stage of the death penalty case

3 Conclusions
Various countries in the world have different opinions and practices with regards to retaining or abolishing death penalty At present various countries shall make their own decisions according to their own situations In the countries where death penalty is retained death penalty cases shall be handled according to the principle of public hearing established by international laws and domestic laws If the domestic legislation and judicial practice of public hearings do not conform to the criteria of international human rights law and criminal justice or are not compatible to the public hearings of death penalty cases relevant countries shall take measures to reform domestic legislation and practice
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The improvement of the public hearing of death penalty cases is necessary for the fair and public trial A fair and public trial is conducive to the improvement of the overall criminal procedure system to the further improvement of China’s legal system construction to the implementation of provisions on safeguarding human rights in China’s constitution and to the implementation of the international human rights and criminal justice standard
外文原文二
Between Justice and Law in Aotearoa New Zealand：Two cases studies
Stephen Prite Chaed
ABSTRACT Through two case studies this essay examines the relationship between the operation and practice of law in Aotearoa New Zealand and the naming of the unlawful’ uncivil’ or disorderly’ within a colonial context Against the background of the apparent complicity between law and colonial interest and desire in Aotearoa I argue that in both the Haka Party’ case (1979) and Mair v Wanganui City Council (1996) the acts of the defendants draw attention to the relationship between the authority of the law and the repression or exclusion of difference According to the judges in both cases the dictates of Maori law and custom were in conflict with the principles of law and order’ Read in terms of colonial relations the perceived relationship between Maori law and custom and the threat to civilisation’ law and order reveals the way in which the law’ has operated in a culturally biased manner and has reflected the interests of Pakeha (New Zealanders of European descent) Thus the perceived threat of the challenge made to the law in either case can be seen as the threat to reveal it for what it is to expose the violence that maintains it and thus to open a space for critique Perhaps more powerfully than any physical attack on the system itself these acts which expose the law challenge it in the name of justice making it possible for the law to be seen both as a reflection of a particular cultural interest and hence as cooptable takeable and able to be made to serve another end that of the other in the name of justice

KEY WORDS colonial Haka Party’ justice Mair Maori law New Zealand Pakeha
1 THE VIOLENCE PROBLEM
In 1987 the New Zealand government commissioned a report the Roper Report’ as it became known which examined violence in a broad range of contexts Although many commended the report it was widely noted that very few submissions were received from the Maori community Many critics suggested that the failure to consult Maori on such issues reflected the more general social and political inequalities which give rise to the social conditions that create violence in the first place Titewhai Harawira for example argued that any report which considered the relationship between Maori and violence should consider the social and cultural context in which such violence occurs1 In other words it must take into account the uneven distribution of power and wealth within society and the violence’ that establishes maintains and is produced by such relations it must look beyond matters of law’ order’ and criminality’ to consider the historically and culturally specific conditions under which violence is produced Thus Harawira’s concern was not merely with what was in the report but with what its approach toward violence passes over and leaves unaddressed systematised institutionalised racism implicit in the legal and criminal justice system

2 REPRESENTING VIOLENCE THE HAKA PARTY CASE
In a survey of media reportage of crime in Aotearoa New Zealand
Spoonley discovered that Even allowing for the overrepresentation of [Maori and Pacific Islanders] in criminal behaviour newspapers are three times more likely to use labels such as Maori or Pacific Islander rather than Pakeha or European when describing cases of violent and sexual off ending4

The use of such markers of identity in reports of criminal offences is
both based upon and reaffirms prevalent assumptions and associations between ethnic groups and criminal behaviour Indeed Spoonley goes on to note that [i]naccurate or exaggerated reportage can also be seen in the way that certain activities (eg gang membership rape overstaying) tend to be associated with MaoriPacific Island groups5 The point is further supported by a submission to the Press Council in 1986 which noted that in an unpublished survey of 210 newspaper reports only nonPakeha [or nonEuropean descended New Zealanders] were racially identified and that minority labels were most often used in items about disorder crime and violence (Spoonley) ```````````````````````

3 MEDIA REPRESENTATIONS
The media response to the incident quickly confirmed the racist tendencies outlined by Spoonley The first newspaper headline on the front page of the Auckland Star read Gang Rampage at Varsity Students at Haka Party Bashed’ The Maori and Pacific Islanders most of them also students were described as a gang’ despite the fact that as the article itself admits they were not wearing any identifying patches’····
Similarly an editorial in the New Zealand Herald headlined No Place for Violence’ argued that the haka’ was not intended to offend and that offence had not been taken in the past The editor insisted that the university was a place for liberalism and tolerance and that the attack must have been planned probably by Maori radicals’ and was therefore not a spontaneous but a deliberate act Theories began circulating about the possible identities of these radicals’ The overwhelming conclusion in the media with respect to the arrested haka party attackers’ was that the law must be upheld if New Zealanders were to remain secure
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It is worth making a point of comparison here to demonstrate the similarity and differences between Australian and New Zealand contexts Like the New Zealand legal system Australian law has recognised indigenous law to some extent In particular in Mabo v Queensland (No 2) (1992) the High Court recognised native title and in the process overturned the notion that Australia was ever terra nullius a notion that provided legal support to the belief that despite the obvious presence of indigenous populations with systems of law and culture Australia in 1788 [w]as uninhabited by a sovereign or sovereigns or by people with institutions or laws ```````````````````````````
4 LAW AND HUMAN RIGHTS
Sensing the urgency with which they needed to address the situation
following the Haka Party Case’ the Human Rights Commission collected examples of Pakeha ideology’ and of the opposing Maori views and published a preliminary report Racial Harmony in New Zealand – A Statement of Issues The report was the result of a call for public submissions by the Human Rights Conciliator who had asked respondents to philosophise about issues relating to the Haka Party’ incident and He Taua’s taking of justice into their own hands The study was divided into seven headings (All New Zealanders’ Different Treatment’ IntoleranceTolerance’ New Zealand as a Multicultural Society’ Racism’ Biculturalism land cultural identity and language’ and LawRights’) and the report organised into two categories View One’ based on the central theme that New Zealand is a monocultural society – that we are all New Zealanders18 and View A’ which places emphasis on the view that New Zealand is a society of diverse cultural groups19 Opposition to the Haka Party attackers’ from View One’ emerged with great clarity Respondents described the Haka Party attack’ as an organised act of thuggery almost a conspiracy of violence a foolish unwarranted action by some misguided youths a means of deciding an argument for primitive savages In the section on Different Treatment’ they argued that special provision for Maori was racist’ and that to make matters blatant would allow Maori to enjoy civilised culture while enjoying special treatment for their own culture Heathen practices of which tapu’ and tangis’ are examples bring inconvenience to the whole community echoing many ideas from the judgment these respondents suggested that equality and democracy could only be achieved if Maori thought of themselves primarily as New Zealanders Justice and equality therefore required the disavowal of difference the assertion of Maori custom law or identity was seen from this position as separatist and racist Consequently Maori themselves were blamed for racial tensions
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This view provides some explanation for the court’s decision Indeed as Walker notes Blackwood’s response demonstrates the way British justice’ and Pakeha notions of law and order have always treated with contempt assertions of Maori cultural and political integrity ```````````````````
5 CASE TWOMAIR V WANGANUI DISTRICT COUNCIL
Another revealing instance of the way the law’ has typically taken the assertion of Maori law and custom as a threat is Mair v Wanganui District Court (1996) While not concerning any straightforward examples of violence this case involved an act the presiding Judge chose to interpret as an attack on the authority of the law Moreover this particular case foregrounds the manner in which the Court both as a physical and symbolic space is a spatial and architectural embodiment of the relations of domination The incident happened on 31 October 1995 when Ken Mair a wellknown Maori activist was in court assisting a friend who was the defendant on an assault charge Mair indicated to the judge that he would like to undertake a karakia or traditional Maori prayer before court proceedings were underway Judge Adeane said it is not appropriate in my view for a Judge to be present in these particular circumstances during a karakia27 The problem with what Mair proposed was not the saying of a karakia itself but the attempt to have a karakia within [the Judge’s] presence28
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The Judge’s ruling was thus not merely a response to Mair’s utterance but a reaction to what he saw as a warning a threat or challenge to which the law had to respond Given the timing and location of the incident in the Wanganui District Court in October 1995 few would have been unaware of Mair’s participation in the Moutoa Gardens’ occupation earlier that year in that very town Given the frequent media portrayal of Mair as a Maori radical’ who continually and strenuously campaigned against the Crown on matters of Maori sovereignty many may indeed have doubted his respect for the law Nevertheless Mair did not openly challenge it in Court he followed the directions of the Judge in every respect except where it contravened Maori law Mair’s actions in Court were consistent with his culture and his laws this was the real threat Mair did not merely break with or refuse to follow procedure he instead chose to act according to Maori law The Judge’s ruling in response reveals and exposes the violence of the law
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This establishment of presences and absences’ understood as the activation of space through the creation of differences (ordering and classification) that make hearing’ possible might best be analysed in terms of the definition of what can be presented or said and what must according to the law remain unsaid ······
The operation of foreclosure is tacitly referenced in those instances in which we ask what must remain unspeakable for contemporary regimes of discourse to continue to exercise their power How is the subject before the law produced through the exclusion of other possible sites of enunciation within the law To the extent that such a constitutive exclusion provides the condition of possibility for any act of speech it follows that uncensoring the text is necessarily incomplete Understood as foreclosure censorship produces discursive regimes through the production of the unspeakable38

6 THE THREAT OF VIOLENCE
As with the Haka Party’ case it is not simply the figure of the Maori’ that threatens the law but rather that which is not contained by the order the marginal or repressed within the order itself Like Walker’s description of the radical potential of violence the threat of disorder associated with Mair’s attempts to say the karakia offers some explanation for the way the law responded For as the Judges themselves make clear the threat here is not so much the crime as the notion of a crime organised or motivated by another law and against the law’ Such a threat is a crime that acts in the name of justice If as Foucault observes [t]he role of political power is perpetually to reinscribe [disequilibrium] through a form of unspoken warfare to reinscribe it in social institutions in economic inequalities in language in the bodies themselves39 then such acts can be read as a form of insurgency aimed at (re)establishing their own order By evoking their unjust exclusion against a similarly unjust history such acts can be considered both archaeological in so far as they seek to expose how they have been inscribed and subjected within the hierarchical order or power and genealogical in so far as they seek to struggle against unitary and totalising discourses through the reactivation of local knowledges40 ````````````
Thus the aim of anticolonial violence’ need not be merely to overthrow the settler but to displace the system of oppression itself it is as Sartre notes to kill two birds with one stone to destroy the oppressor and the man he oppresses at the same time there remain a dead man and a free man45 Through such appeals to another order these violent’ acts threaten the present system by the way in which they make visible the repressions or exclusions which give the law’ authority Through recourse to past and present injustice they attempt to draw attention to the relationship between the authority of the law and the repression or exclusion of difference For the law loses it legitimacy if is seen to be exercised or applied excessively or unfairly By saying what the law requires to be forgotten radicalism makes it possible that the law may be made to appear unjust illegitimate and unfair It is in this way that the figure of the past returns to haunt the law returning not as the savage but as the innocent the oppressed and the persecuted The law in order to be law must always conceal this figure by repressing it as the body of the criminal as violence or the antithesis of order And yet in its efforts to do so especially when confronted or challenged it must be careful not to respond excessively or violently ``````````````````
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Perhaps more powerfully than any physical attack on the system itself the act of exposing the law of challenging it in the name of justice makes it possible for the law to be seen both as a reflection of a particular cultural interest and hence as cooptable takeable’ and able to be made to serve another end that of the other in the name of justice The important difference between this use of law and the way the law has operated in the current system would be the belief that judgment is never final or universal but always partial positioned and incomplete In other words justice would never be in the present but only ever in the future never done but always to be done

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