英美法係為什麼也有成文法？

01-04

英美法系一個重要特徵是判例法。可是美國經常見到有成文法比如《與台灣關係法》《謝爾曼反壟斷法》《統一商法典》之類。這是為什麼呢？

加州的制定法數量就要比整個歐洲大陸的制定法還要多。

——約翰·亨利·梅里曼：《大陸法系》

1?普通法的英格蘭故事

普通法系（私以為英美法系／大陸法系的叫法並不能直接和準確反映兩套法系的特徵，我一般使用美國人更普遍稱呼的普通法系／民法法系）的來源是中世紀英格蘭普通法。中世紀普通法是由英格蘭王室法院所適用，並逐漸擴展為全英格蘭普遍適用的法律體系。普通法的一大特點就是，通過陪審制、王室巡迴法院等制度，國王的法院在令狀的指引下，在個案審判中「發現」英格蘭的「習慣」，形成一個個判例，進而在中世紀晚期依據遵循先例（Stare decisis）原則，形成一套穩定的判例法體系。

普通法的發展依靠的是國王權力，在同其他法律體系的競爭中取得優勢。地方封建領主和自治團體適用的封建法和陪審制相比，過於粗俗野蠻，管轄權被王室法院一步步侵蝕；教會法院適用的是承繼自羅馬法的教會法，具有強烈的羅馬法的成文化特徵，但它的管轄範圍由於王權和教權的鬥爭而受到限制，直到亨利八世宗教改革而歸於失敗；在海商法領域則和歐陸一樣，一直適用著羅馬法化的海商法。

制定法是由國王或者國王的議會制定的成文法律。關於中世紀制定法與成文法的關係，我的觀點是：

a.二者都是來自於王權的法律，本質上並不是矛盾和衝突的；b.從事實和邏輯上看，制定法直接體現國王的意志，制定法的效力高於普通法，法官在審判中優先適用的制定法；c.普通法構建起一套法律制度和理論的大廈，構成了英格蘭王室法律體系的主體和支柱，這是制定法所無法突破的。打個比方就是，英格蘭法是一棟房子，普通法就是磚瓦房梁，制定法是招牌門面，缺一不可。

這個問題的國內學界權威觀點，請參見：李紅海：《「水和油」抑或「水與乳」：論英國普通法與制定法的關係》，《中外法學》，2011年第2期。

2?普通法的美國故事

在殖民地時期，布萊克斯通的《英格蘭法釋義》風靡新大陸，普通法在殖民地法院取得了統治地位。雖然革命時和建國初期，建國先賢基於對英格蘭人的憎恨，試圖全面移植法國的羅馬式法典，但由於路徑依賴而無法實施。普通法依舊統治著這個國家。普通法和議會的制定法之間的關係，在本質上還是英格蘭式的，只不過主權者從國王換成了公民。

美國制定法的發展有兩個重要的動因。

經過一兩百年的發展，美國的判例已經浩如煙海。在沒有互聯網和資料庫的時代，尤其是以普通法為主的財產法、契約法、商法等民事法律領域，查閱相關判例對於律師、法學學生來說就是一個噩夢（現在也tmd是！）。諸如邊沁等公知也對英美的判例法大加鞭撻。於是來自各州的學者和律師將各州的法制進行歸納總結，形成了以《統一商法典》（UCC）為代表的成文法典。之後UCC逐漸被各州議會所批准接受。

根據憲法的正當程序原則，聯邦和州政府行使權力需要有憲法和制定法的授權，如果政府試圖擴張自己的權力從而對公民的自由產生影響，不能像北朝鮮一樣擼起袖子加油干，必須根據憲法，制定相關的法律。隨著社會的快速發展，每天都在產生新問題有待政府去解決，政府每試圖解決一個問題，就需要一部法律的授權。比如上世紀的反壟斷法，比如小布希的愛國者法。這也是美國成文法爆炸的重要原因。

相關問題：能不能簡單評價一下大陸法系和英美法系各自的優勢，中國是怎樣的法系？你認為中國更適合哪個法系呢？ - 李小豬肘的回答 - 知乎

很慚愧，寫了些微小的觀點，謝謝大家。

做過的好多訴訟案件，我都會援引最高院或地方高級法院公布的指導性案例。案例用好了，比條文管用多了。所謂「前面有車、後面有轍」，法官看到類似判例後給出相同判決結果的心理負擔幾乎為零。當然，在向法院提交案例的同時最好附上核心裁判要旨便於法官理解。成文也好、判例也好，好用就行哦。如果非說我們是「成文法」，我們用起判例來杠杠的！

因為有一系列靠判例無法解決的問題

1. 提單與第三人

2. 遺產繼承

3. 反壟斷

待填坑

拋磚引玉，先就學過的美國聯邦證據規則來說。主要的立法目的之一是因為當時許多的證據規則來自於普通法判例，規則繁多不成體系，編撰成統一法條便於實際應用。

例如Federal Rules of Evidence 的第803條是傳聞證據的排除例外，本身傳聞證據對於證據法來說應用起來就很複雜，例外排除基本也都是來自於不斷的實踐總結，24條法條背後其實基本都來自相關經典判例. (具體參見法條後的Committee Notes)Rule 803. Exceptions to the Rule Against Hearsay 。因為這條立法上有很強的判例法色彩，法條各部分邏輯聯繫性比較差，所以807還有個兜底條款。

The Need for Uniform Federal Rules of Evidence

The special committee surveyed the history of evidence law in the civil, criminal, admiralty, and bankruptcy fields. The survey found several peculiarities in the history of evidence law through the years. For example, until 1933, the federal courts hearing a criminal case used the rules of evidence governing the state where the federal court sat. However, they had to apply the state rules as they existed in 1789, when the federal courts were created. If a state joined the union after 1789, the court had to utilize the state evidence law as it existed when the state joined the union. In bankruptcy law, the Competency of Witnesses Act governed; that is, unless the case involved the examination of 「a bankrupt and his wife,」 in which case the Bankruptcy Act governed.

The contemporary shambles of evidence law was almost as troubling as earlier practices. In a civil case, the governing evidentiary law could come from federal statutes, federal decisional law, or state evidence law.[3] Of course, these three sources could also conflict. In the arena of criminal law, Criminal Rules of Procedure 26 and 27 dealt with evidence. Rule 26 stated:

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an act of Congress or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.[4]

Rule 27 states that 「[a]n official record or an entry therein or the lack of such a record or entry may be proved in the same manner as in civil actions.」 These rules were not meant to rely on state law. Instead, according to the Criminal Rules Advisory Committee notes, the rules contemplate 「the development of a uniform body of rules of evidence to be applicable in trials of criminal cases . . . 」 Of course, those uniform rules weren』t adopted for another 30 years.

Many legal scholars at the time agreed about the poor state of evidence law and the drastic need for some kind of rehabilitation. Dean Mason Ladd of the University of Iowa said that 「[a]ll of the law of evidence needs clarification and simplification. . . . A review of the history of evidence, with its spotted and often accidental growth, is persuasive proof of the need of introspective study of the law of evidence with a view to far-reaching improvement.」[5] Professor Edmund Morgan wrote about the rule of hearsay that 「a picture of the hearsay rule with its exceptions would resemble an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists.」[6] With evidence law in a blatant state of disrepair, something needed to be done.

History of the Federal Rules of Evidence

Rule 803. Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant』s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant』s will.

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness』s memory; and

(C) accurately reflects the witness』s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the opponent does not show that the possible source of the information nor or other circumstances indicate a lack of trustworthiness.

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) the office』s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:

(A) the testimony or certification is admitted to prove that

(i) the record or statement does not exist; or

(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:

(A) made by a person who is authorized by a religious organization or by law to perform the act certified;

(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and

(C) purporting to have been issued at the time of the act or within a reasonable time after it.

(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:

(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;

(B) the record is kept in a public office; and

(C) a statute authorizes recording documents of that kind in that office.

(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document』s purpose — unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.

(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert』s admission or testimony, by another expert』s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

(19) Reputation Concerning Personal or Family History. A reputation among a person』s family by blood, adoption, or marriage — or among a person』s associates or in the community — concerning the person』s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

(20) Reputation Concerning Boundaries or General History. A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

(21) Reputation Concerning Character. A reputation among a person』s associates or in the community concerning the person』s character.

(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:

(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;

(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;

(C) the evidence is admitted to prove any fact essential to the judgment; and

(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:

(A) was essential to the judgment; and

(B) could be proved by evidence of reputation.

(24) [Other Exceptions .] [Transferred to Rule 807.]

關鍵問題是不能認為判例法法系就「只有判例」。。。就算是我們這種大陸法系國家，最高院還出過十幾個「指導」判例呢。。。