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法律解释中的应用The application of statutory interpretation

时间:2016-01-25 17:08来源:www.ukassignment.or 作者:anne 点击:
Introduction介绍
 
当法院决定一个案件的时候,他们需要解释规约。在实践中已经建立了一些原则和规则。它们主要包括传统的规则和现代的规则。传统规则涉及字面规则、黄金法则和淘气规则。现代规则主要涉及有目的的规则来自于恶作剧的规则。本文主要探讨这些主要原则和法律解释规则并将其应用到具体的案例。首先,如何将这些原则应用分别进行了探究。其次,涉及到它们是如何作用到实践中。最后,一个结论是结束时做出的最终判定。
When the courts decide a case brought before them, they need to interpret the statute. There are some principles and rules for statutory interpretation which have been established in practice. They mainly include traditional rules and modern rules. Traditional rules involve literal rule, golden rule and mischief rule. Modern rules mainly relate to purposive rule which derives from mischief rule. This essay mainly dicusses these main principles and rules of statutory interpretation and applies them to a specific case. Firstly, how these principles are applied is respectively dicussed. Secondly, it comes to how they are applied to the case. And finally, a conclusion is made. 
 
Principles of statutory interpretation法律解释原则
 
将章程适用于具体案件,是法官的任务。然而,这些法规并没有说明一个案例应该如何决定。法官负责解释法规的意思,以便在他们对面前的案件中作出裁决。法院制定了许多原则,这样他们就可以将这些法律适用于案件,并落实到立法,这是一般是开庭议会的原则。It is the task of the judges to apply the statutes to specific cases. However, the statutes do not tell how a case should be decided. The judges are responsible for interpreting the meaning of the statutes so as to make decisions on the cases brought before them. There are a lot of principles have been developed by the courts so that they can apply the legislation to the cases and give effect to the will of the legislators, generally the Parliament. 
Traditional rules of interpreting statutes involve literal rule, golden rule and mischief rule. Modern rules mainly involve purposive approach. 

Literal rule文字规则

Literal rule focuses on the strict adherence to the words and their meaning of statutes. The judges are not allowed to interpret the words used in a statute beyond their literal meaning. It is believed that the intention of the rule-maker have been clearly set out in the ordinary and natural meaning of the words used (Sullivan, 1997). It is not necessary for the judges to make interpretations of them by overriding the plain, natural and ordinary meaning of words. In the case of R v City of London Court Judge (1892), Lord Esher stated that the judges must follow the clear words used in an Act even though manifest absurdity might hence be produced, and that it is not the Court's business to consider whether an absurdity has been committed by the legislature. This rule has a lot of advantages such as promoting certainty of statutes, encouraging precise drafting, and preventing usurping the function of the rule-maker (Bennion, 2007). However, there are also some weaknesses of the rule. It does not recognize the inevitable defects in the legislation drafting. Furthermore, obvious absurdity may be produced, as may defeat the rule-maker's intention. 

Golden rule黄金法则

As the use of literal rule will inevitably lead to absurdity which may defeat the original intention of the rule-maker, the golden rule is developed. This rule looks for an alternative interpretation by giving effect to the intention of rule-maker (Hutton, 2009). In case of Grey v Pearson (1857), Lord Wensleydale stated that it is useful to adopt literal rule to construe statues according to the grammatical and ordinary sense of the words, but the ordinary meaning of the words may be modified in order to get away from possible absurdity or inconsistency. In Inco Europe Ltd v First Choice Distribution (2000), it went further to believe that a judge could add words to a Statute so as to give effect to the intention of Parliament when there was obvious errors in the dreafting of the Statute. Therefore, golden rule strictly adheres to the normal and plain meaning of words of an Act just as the literal rule does. Nevertheless, the golden rule permits modification of the normal and plain meaning of the words when absurd results or errors may be created. If a word may have two or more senses, the judges are permitted to pick the preferred meaning. If there is only one sense, a completely different meaning may be applied by the judges so as to ensure the reasonable and consistent result (Kim, 2009). However, the rule is weak in that the judges may subjectively determine what is the absurdity and inconsistency (Bennion, 2007). 
Mischief rule 
The rule is applied in statutory interpretation in order to dig out the rule-maker's intention. It was first developed at the case Heydon's Case (1584), in which before the application of a statute, the judges asks themselves three questions: what was the common law before the enactment of it, what was the mischief may be remedied by the statute, and what remedy may be provided by Parliament. The rule aims to find out the true intention of Parliament when a statute was made. When the rule is introduced, some necessary secondary sources are generally examined. They include committee reports, memorandum, drafting meetings, and related drafts. 
The rule is applied only when the statute was enacted to remedy a defect in the common law (Sullivan, 1997). To some extent, the rule grants the judges more discretion than literal rule and golden rule, to ensure discovery of Parliament's intent. Therefore, it is useful in avoiding absurd or inconsistent results when abiding to the rule-maker's sovereignty. However, the application of the rule may be unsatisfactory. The judges are given too much discretion on the statute interpretation. The rule may lead to the uncertainty and susceptibility of statutes (Kim, 2009). Furthermore, in modern legal systems, the courts seldom need to remedy the mischief and then the rule seems to be a bit outdated. 
Purposive approach
Purposive approach is a modern rule of statutory interpretation. The rule operates by looking at the purposes of Parliament beyond the words of the statute and then interpreting the statute to give effect to that purpose (Barak, 2007). It not only looks for the intention of the rule-maker, but also allows the judges to make the law. To a large extent, the purposive approach is similar to mischief rule in finding out the purpose of the statute. Purposive interpretation was adopted to replace the mischief rule, literal rule and golden rule to determine case (Sullivan, 1997). In other words, the traditional rules are the specific applications of the purposive approach. When it is used, extraneous materials such as drafts, committee reports, and legal review articles are found out. 
In the UK courts, purposive approach has been used to interpret EU law and domestic legislation. In case of Pickstone v Freemans plc (1998), it was held that the literal approach would lead to the breach of its treaty obligations to give effect to an EU directive and purposive approach was used. 
 
Application 应用
 
To determine whether Derek has committed an offence under Prohibition of Unsolicited Parties Act 2010, it is necessary to introduce principles and rules of statutory interpretation. 
Firstly, the literal rule is used. For an act to constitute a criminal offence, three requirements have to been satisfied: a gathering of more than one hundred people on land for a social purpose, the possible consumption of alcohol at the gathering, and the doer being not an exempt person. The key words “gathering” “a social purpose” and “an exempt person” and others are interpreted literally, normally and plainly. Firstly, there is a gathering over a hundred people in the case. Over 600 people arrive to join the party. Obviously, it is a gathering more than one hundred. Secondly, the alcohol is likely to be consumed. It is hardly impossible for such a big gathering not to consume alcohol. Thirdly, the gathering is without permission of a local magistrate. Finally, Derek is not an exempt person under the Act. In law, generally, an agent is the person who acts on the behalf of the principal to create legal relationships with third parties. Apparently, Derek does not act for Ray to create legal relationships and hence is not an agent of Ray. Likewise, he is not the occupier who takes the possession of a land and enjoys the benefits of the occupation. Also, Derek is not any member of Ray’s family or his employee. Therefore, by using the literal rule, Derek may commit a criminal offence under the Act.
Secondly, the golden rule may be introduced. If Derek is decided to commit a criminal offence, it is likely to produce an absurd result. After all, though there are 600 people at the party, a substantial majority of them are not invited by Derek. He just emails to a few of his friends. If no technical error took place, the number of people would be greatly reduced to no less than 100. In such circumstance, he may go beyond the provisions of the Act. Thus, the literal rule leads to an absurd result. Therefore, the golden rule is needed. The rule allows the judges to choose a preferred meaning of words in the Act. There are three sections of the Act. If one section is not satisfied, no criminal offence may be committed. The word “occupier” literally means the person who takes the possession of a land and has the right of property. However, there are some senses for the word. It also refers to keep in possession, to hold or keep for use. In these senses, the occupier is not the owner of a land, but may be a lodger, tenant, temporary manager, or a user. In this case, Ray can be regarded as an occupier of the land. He is asked by Derek to keep an eye on his farm land. Hence, under Ray’s permission, he is entitled to take care of the land and becomes the temporary occupier of the land. In this sense, he acts as the temporary manager of the land. Therefore, Derek can be deemed as the occupier of the land and is an exempt person under the section 1(3) of the Act. He is entitled to hold a gathering on the land and does not commit an offence. 


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