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问个粗浅的问题

问个粗浅的问题# Law - 律师事务所

c*n2005-02-10 08:02

1 楼

我是一个法律的门外汉，有家人在法律战线工作，耳濡目染一些，
平时也想了一些，有个疑惑想请教大家
美国法律所规范的，到底是人的客观行为，还是主观动机，抑或是找个平衡
点兼而有之？我国呢？
同样是车祸肇事，有人是缺乏经验，无意为之，有人是故意找刺激开飞车，
同样是主动伤害他人致死，有人是忍无可忍，在他人合法挑衅下失去理智，
有人是有意迫害他人，在我所知道的粗浅的一些判例里面，所收到的法律
制裁是一样的。我国比美国有一些不同的地方就是有根据动机加重刑罚（我
说得对么？），在美国，据我现在所了解的，没有这样的说法。
那么我想知道的是，当前的主流法律理论里面，到底赞成不赞成把犯罪行为
的主观动机考虑进去，在量刑的时候。
固然考虑主观动机给法律的客观性带来挑战，但是如果完全不考虑，则法律
不能成为社会个体的行为规范，毕竟文字所叙述的，不可能包括每一种情况，
更不可能随时跟上时代的变化，人的意识的改变。我想知道现代法律是如何
考虑的。
门外汉说得不清不楚，还请大侠们指教:)

f*w2005-02-10 08:02

2 楼

What do you mean by "主观动机"? intent or motive? In American criminal law,
motive is never an element, but intent sometime does. So, in an criminal
lawsuit, defendant's motive cannot be used as evidence for liability or
penalty judgment. In a criminal case, defendant's mind can be classified as
intentinally, knowingly,recklessly and negligently. If a person caused the
death of another person intentionally, he can be convicted as murder and may
serve life time in prison. But if he caused the death

【在 c****n 的大作中提到】

: 我是一个法律的门外汉，有家人在法律战线工作，耳濡目染一些，
: 平时也想了一些，有个疑惑想请教大家
: 美国法律所规范的，到底是人的客观行为，还是主观动机，抑或是找个平衡
: 点兼而有之？我国呢？
: 同样是车祸肇事，有人是缺乏经验，无意为之，有人是故意找刺激开飞车，
: 同样是主动伤害他人致死，有人是忍无可忍，在他人合法挑衅下失去理智，
: 有人是有意迫害他人，在我所知道的粗浅的一些判例里面，所收到的法律
: 制裁是一样的。我国比美国有一些不同的地方就是有根据动机加重刑罚（我
: 说得对么？），在美国，据我现在所了解的，没有这样的说法。
: 那么我想知道的是，当前的主流法律理论里面，到底赞成不赞成把犯罪行为

y*y2005-02-10 08:02

3 楼

Well, at least as what I know, the civil law in the united States does
sometimes require the intent as one element to prevail at trial. There is one
group of cases called intentional torts in torts law. The torts law is to
compensate the plaintiff in the sense that the plaintiff will be put in the
condition had the accident does not happen. Based on this idea, it is not
necessary to impose greater liability on the intentional defendant than what
needs to compensate the plaintiff. However, issura

f*w2005-02-10 08:02

4 楼

"And in criminal law, in most of the cases, motives will be considered"
PLEASE CHECK YOUR CRIMINAL TEXT BOOK OR ASK YOUR PROFESSOR TO SEE IF THIS IS
CORRECT.

one
depend
the
be
he
course,
but
contract.
get
may
the
motivated
the

【在 y*******y 的大作中提到】

: Well, at least as what I know, the civil law in the united States does
: sometimes require the intent as one element to prevail at trial. There is one
: group of cases called intentional torts in torts law. The torts law is to
: compensate the plaintiff in the sense that the plaintiff will be put in the
: condition had the accident does not happen. Based on this idea, it is not
: necessary to impose greater liability on the intentional defendant than what
: needs to compensate the plaintiff. However, issura

f*w2005-02-10 08:02

5 楼

y*y2005-02-10 08:02

6 楼

we have not reached the issue of motive yet in our criminal law class. it is
just my impression: motive is not a requirement for a prima facie case, but it
may be considered for the penalties finally imposed. I rembered at least
regarding to federal court lawsuits, there is an agency to propose the
guidline about the range of penalty imposed on the defendant although the
offense may be decided by the court.It is just unimaginable that the motive
will not be considered in imposing the penalty. Bu

【在 f*****w 的大作中提到】

: "And in criminal law, in most of the cases, motives will be considered"
: PLEASE CHECK YOUR CRIMINAL TEXT BOOK OR ASK YOUR PROFESSOR TO SEE IF THIS IS
: CORRECT.
:
: one
: depend
: the
: be
: he
: course,

f*w2005-02-10 08:02

7 楼

In penalty phase, a lot of stuff can come in. A small event that happened 30
years before the criminal action can be raised to prove that defendant is a
good person. So, defendant's motive can be mentioned at the penalty phase. But
it is NOT an ELEMENT in either prosecutor's or defendant's case. Further, even
if motive is raised in the penalty phase, its effect is very limited because
prosecutor can also raise a lot of stuff to wash away defendaant's "goodwill".

it
that.
IS
is
to
not
the
the
of

【在 y*******y 的大作中提到】

: we have not reached the issue of motive yet in our criminal law class. it is
: just my impression: motive is not a requirement for a prima facie case, but it
: may be considered for the penalties finally imposed. I rembered at least
: regarding to federal court lawsuits, there is an agency to propose the
: guidline about the range of penalty imposed on the defendant although the
: offense may be decided by the court.It is just unimaginable that the motive
: will not be considered in imposing the penalty. Bu

c*n2005-02-10 08:02

8 楼

according to my understanding, my phrase "主观动机" refers to
motive instead of intent
I think intent is to address whether the case is caused actively by
the defendant or passively. The motive is the inner motivation for
the defendant's behavior. Intent is somewhat logically could be verified
while the motive is very difficult to be considered or could be biased
from judge to judge / jury to jury.
I also know that whether the people is "good" or "evil" could be addressed
by the lawyers on court, bu

【在 f*****w 的大作中提到】

: What do you mean by "主观动机"? intent or motive? In American criminal law,
: motive is never an element, but intent sometime does. So, in an criminal
: lawsuit, defendant's motive cannot be used as evidence for liability or
: penalty judgment. In a criminal case, defendant's mind can be classified as
: intentinally, knowingly,recklessly and negligently. If a person caused the
: death of another person intentionally, he can be convicted as murder and may
: serve life time in prison. But if he caused the death

i*y2005-02-10 08:02

9 楼

This is not entirely true. If you act recklessly and cause the death of
another, you might be charged with "depraved-heart murder" even though legally
speaking you lack the intent to kill another.

【在 f*****w 的大作中提到】

: In penalty phase, a lot of stuff can come in. A small event that happened 30
: years before the criminal action can be raised to prove that defendant is a
: good person. So, defendant's motive can be mentioned at the penalty phase. But
: it is NOT an ELEMENT in either prosecutor's or defendant's case. Further, even
: if motive is raised in the penalty phase, its effect is very limited because
: prosecutor can also raise a lot of stuff to wash away defendaant's "goodwill".
:
: it
: that.
: IS

f*w2005-02-10 08:02

10 楼

Theoretically, a "good man" can get less penalty than a "evil man" in penalty
phase. But you cannot predict for that. For example, in the famous California
Peterson case, Peterson's mother and sisters were called to speak for him (to
show that Peterson was once a good boy). Nevertheless, he received a death
penalty (you should recall that Lucy's mother was also called by the
prosecutor to speak how wonderful of her murdered daughter). But a defendant's
goodwill cannot change or affect the liabi

【在 c****n 的大作中提到】

: according to my understanding, my phrase "主观动机" refers to
: motive instead of intent
: I think intent is to address whether the case is caused actively by
: the defendant or passively. The motive is the inner motivation for
: the defendant's behavior. Intent is somewhat logically could be verified
: while the motive is very difficult to be considered or could be biased
: from judge to judge / jury to jury.
: I also know that whether the people is "good" or "evil" could be addressed
: by the lawyers on court, bu

f*w2005-02-10 08:02

11 楼

Different state has different definition on mens rea. I just said "can", not
"definitely".

legally

【在 i******y 的大作中提到】

:
: This is not entirely true. If you act recklessly and cause the death of
: another, you might be charged with "depraved-heart murder" even though legally
: speaking you lack the intent to kill another.

j*i2005-02-10 08:02

12 楼

If I remember this correct, bifurcated trial only applies to death penalty
cases. There should be only one trial for all other criminal actions. Does
it really split out into liability phase and penalty phase? I never read
anything like that.

But
even
"goodwill".
is
but
motive
THIS
in
than

【在 f*****w 的大作中提到】

j*i2005-02-10 08:02

13 楼

intentinally, knowingly,recklessly and negligently
==> purposefully (typo?), knowingly ...

may

【在 f*****w 的大作中提到】

j*i2005-02-10 08:02

14 楼

What about strict liability? Why do we need jury trials? I do agree on the
point that it's neither subjective nor objective. It's all about balancing.

Finally, my personal opinions about the objectiveness of law. I do not believe
law is objective. When legsliature makes law, it is said it reflects the
opinions of the populaiton,which are subjective. when judges apply or make
law, it always reflects THEIR opinion what the law is, which is subjective.
Some scholars argue that when judges decide

【在 y*******y 的大作中提到】