慕道格致，溯源尋真；懷賜天召，銘志能鴻。
32. reasonable prudent person = 普通人之注意義務；善良管理人
And in doing so they must use such caution as a reasonably prudent man would with reference to transactions in which he may be engaged of a similar nature.
33. duty of care = 注意義務
In English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss.
34. foreseeability = 預見可能性
In the second place, it is clear that the test of foreseeability is less a definite test itself than a cover for a developing set of tests.
35. Hand Formula = 韓德法則 (B
36. fiduciary duty = 信賴利益
A fiduciary duty[1] is the highest standard of care at either equity or law. A fiduciary (abbreviation fid) is expected to be extremely loyal to the person to whom he owes the duty (the "principal"): he must not put his personal interests before the duty, and must not profit from his position as a fiduciary, unless the principal consents. In English common law the fiduciary relation is arguably the most important concept within the portion of the legal system known as equity. In the United Kingdom, the Judicature Acts merged the courts of equity (historically based in England's Court of Chancery) with the courts of common law, and as a result the concept of fiduciary duty also became available in common law courts.
37. informed consent = 告知後同意 (醫師法 §12-1)
Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards.
38. res ipsa loquitur = 明明可知，無庸舉證
In the common law of negligence, the doctrine of res ipsa loquitur (Latin for "the thing speaks for itself") states that the elements of duty of care and breach can be sometimes inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved.
39. doctrine of sudden emergency = 緊急避難
Stewart had a small hunting lodge on the small island at the west end of Loch Achray, to which he resorted on any sudden emergency as a place of safety.
40. causation in fact = 條件因果關係
In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate (or legal) cause. Cause-in-fact is determined by the "but for" test: but for the action, the result would not have happened. For example, but for running the red light, the collision would not have occurred. For an act to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact.
41. proximate cause = 相當因果關係
In philosophy a proximate cause is an event which is closest to, or immediately responsible for causing, some observed result.
42. egg-skull doctrine = 蛋殼頭骨理論
The eggshell skull rule (or thin skull rule or you take your victim as you find him rule of the common law) is a well established legal doctrine used in some tort law systems, with a similar doctrine applicable to criminal law.
This rule holds one liable for all consequences resulting from his or her tortious (usually negligent) activities leading to an injury to another person, even if the victim suffers an unusually high level of damage (e.g. due to a pre-existing vulnerability or medical condition). The term implies that if a person had a skull as delicate as that of the shell of an egg, and a tortfeasor who was unaware of the condition injured that person's head, causing the skull unexpectedly to break, the defendant would be held liable for all damages resulting from the wrongful contact, even if
a. such damages were not reasonably foreseeable, or
b. the tortfeasor did not intend to cause such a severe injury.
In criminal law, the general maxim is that the defendant must "take their victims as they find them", a quotation from the judgment of Lord Justice Lawton in R v. Blaue (1975), in which the defendant was held responsible for killing his victim, despite his contention that her refusal of a blood transfusion constituted novus actus interveniens.
43. enterprise theory (crime) = 環境犯罪說
The enterprise theory of crime understands the organisation of criminal behaviour as reflective of specific environmental factors - market or economic forces, influencing the motivations of criminals, how they interact, their perceptions or risk versus benefit, and the efficiency and efficacy of their modus operandi.
44. enterprise theory (business) = 僱用人責任
According to enterprise theory, it is the employer's fault or the very person to be blamed if his/her employee should commit any crime or misbehave, for he/she is to take all the responsibility for employing such character to bring forth the coming unwanted consequences.
45. market share concept = 風險均擔理論
"Market share is the percentage of a market (defined in terms of either units or revenue) accounted for by a specific entity." In a survey of nearly 200 senior marketing managers, 67 percent responded that they found the "dollar market share" metric very useful, while 61% found "unit market share" very useful.
"Marketers need to be able to translate sales targets into market share because this will demonstrate whether forecasts are to be attained by growing with the market or by capturing share from competitors. The latter will almost always be more difficult to achieve. Market share is closely monitored for signs of change in the competitive landscape, and it frequently drives strategic or tactical action."
Increasing market share is one of the most important objectives of business. The main advantage of using market share as a measure of business performance is that it is less dependent upon macroenvironmental variables such as the state of the economy or changes in tax policy. However, increasing market share may be dangerous for makers of fungible hazardous products, particularly products sold into the United States market, where they may be subject to market share liability.
46. danger invites rescue = 救援損害
In the USA, the rescue doctrine of the law of torts holds that if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim. This doctrine was originally created in case law by Wagner v. International Railway, 232 N.Y. 176 (1926), in which Justice Cardozo stated "Danger invites rescue. The cry of distress is the summons to relief. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had."
47. pure economie loss = 純粹經濟上之損失
Economic loss refers to financial loss and damage suffered by a person such as can be seen only on a balance sheet rather than as physical injury to the person or destruction of property. There is a fundamental distinction between "pure economic loss" and "consequential economic loss" - Pure economic loss occurs independent of, or in the absence of, any physical damage to the person or property of the victim. Usually, "pure economic loss" in tort, particularly in negligence, is not recoverable as damages or otherwise.
Recovery at law for pure economic loss is restricted under some circumstances in some jurisdictions, in particular in tort in common law jurisdictions, for fear that it is potentially unlimited and could represent a "crushing liability" against which parties would find it impossible to insure. In the United States, Chief Judge Benjamin N. Cardozo of the New York Court of Appeals famously described it as, "liability in an indeterminate amount, for an indeterminate time, to an indeterminate class."
Examples of pure economic loss include:
a. Loss of income suffered by a family whose principal earner dies in an accident. The physical injury is caused to the deceased, not the family.
b. Loss of market value of a property owing to the inadequate specifications of foundations by an architect.
c. Loss of production suffered by an enterprise whose electricity supply is interrupted by a contractor excavating a public utility.
The latter case is exemplified by the English case of Spartan Steel and Alloys Ltd v. Martin & Co. Ltd.
Similar losses are also restricted in German law though not in French law beyond the normal requirements that a claimant's asserted loss must be certain and directly caused.
In Australia it is very difficult to recover pure economic loss in negligence if it is not consequent to property damage.
A few state supreme courts in the United States have departed from the majority rule and authorized recovery for pure economic loss through tort causes of action (usually negligence). The first was California in 1979, followed later by New Jersey and Alaska.
48. impact rule = 碰觸原則
The rule that a plaintiff cannot claim damages for negligent infliction of emotional distress unless there has been some physical impact, such as an assault.
Example: a parent of a child injured in an auto accident cannot recover for his/her own distress in seeing child physically injured, unless parent also sustained own physical injury.
49. wrongful birth and wrongful life = 意外出生
Wrongful birth is a legal cause of action in some common law countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities. Thus, the plaintiffs claim, the defendant prevented them from making a truly informed decision as to whether or not to have the child. Wrongful birth is a type of medical malpractice tort. It is distinguished from wrongful life, in which the child sues the doctor.
Wrongful life is the name given to a legal action in which someone is sued by a severely disabled child (through the child's legal guardian) for failing to prevent the child's birth.
Typically a child and the parents will sue a doctor or a hospital for failing to provide information about the disability during the pregnancy, or a genetic disposition before the pregnancy. Had the mother been aware of this information, it is argued, she would have had an abortion, or chosen not to conceive at all.
50. loss of consortium = 親權侵害
Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law.
51. defense = 侵權行為之抗辯
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense (or defence) in an attempt to avoid criminal or civil liability. Besides contesting the accuracy of any allegation made against him or her in a criminal or civil proceeding, a defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true, the defendant is nevertheless not liable.
Since a defense is raised by the defendant in a direct attempt to avoid what would otherwise result in liability, the defendant typically holds the burden of proof. For example, if a defendant in an assault and battery case attempts to claim provocation, the victim of said assault and battery would not have to prove that he did not provoke the plaintiff; the defendant would have to prove that the plaintiff did.
Litigation is expensive and often may last for months or years. Parties can finance their litigation and pay for their attorneys' fees or other legal costs in a number of ways. Defendants can pay with their own money, through legal defense funds, or legal financing companies.
52. modus operandi = 犯罪手法
Modus operandi (often used in the abbreviated forms M.O. or simply Method) is a Latin phrase, approximately translated as "method of operating". The plural is modi operandi ("methods of operating"). The term is used in English to describe someone's habits or manner of working, the method of operating or functioning. It is often used in a criminal sense, to profile the methods employed by individuals during the execution of a crime, and may also be used in offender profiling,where it can also be used to find clues to the perpetrator's psychology. It largely consists of the methods used to execute the crime, prevent detection, and facilitate escape.
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這裡是我的日記本、剪貼簿、心情感想、專題探討；其中屬權管電資管理人之著作權者，皆為讀者全體所共有，歡迎複製、轉載、改作、編輯等分享與利用。
- Apr 28 Sat 2012 00:00
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