關於愛，我是個小學生。

行百里路半九十
296. governmental interests analysis = 政府利益分析說
In conflict of laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. This process is described in English law as classification and as qualification in French law. In those cases where a different result would be achieved depending on which of several possibly relevant laws is applied, this stage of the process reveals the relevant rule for the choice of law but it is not necessarily a simple process (see the incidental question). The first stage is for the court to determine whether it has jurisdiction, where appropriate confronting the problem of forum shopping.
Discussion
Once the forum court has decided that it does have jurisdiction to hear the case, it then must characterise or classify the cause(s) of action. This is regarded as the most important and difficult problem in conflict of laws as trade and travel between states have become the norm and the effects of broken promises, defective goods, traffic accidents, and marital squabbles are no longer confined to the sovereign territory of one particular state or nation. But local laws are usually enacted to satisfy domestic interests by legislators who focus on keeping the support of their constituents rather than on harmonising their own laws to conform to international principles. This reflects a prevailing tension between legal unilateralism and multilateralism. Hence, every law has both a territorial and a personal application so it is applied by courts within the boundaries of the state yet, as an aspect of the social contract, it also claims to bind those individuals who owe the government allegiance, no matter where they may be.
Which law will be applied to characterise?
Characterising by reference to the lex causae (the law identified in the choice of law stage of the conflict process as the one to be applied to determine the case) would be problematic. Although it may appear logical to allow the whole of the lex causae, including its characterisation rules, to apply, it actually produces a circular argument, i.e. the lex causae is to apply to the process of characterisation before the process of characterisation has led to the choice of the relevant lex causae. So the conflict rules of the lex fori (the domestic law of the court dealing with the case) are usually applied even though, in extreme cases, the application of only the substantive provisions of the foreign law by the forum court could produce a judgment that neither the lex causae nor the lex fori would normally have produced. Nevertheless, in Macmillan Inc. v Bishopsgate Investment Trust plc [1996] 1 ALL E R 585, the most recent English case, Auld LJ. accepted that, ". . .the proper approach is to look beyond the formulation of the claim and to identify according to the lex fori the true issue or issues thrown up by the claim and the defence".
There are several cases when characterisation is not made by the lex fori:
choice of law clause (lex voluntatis)
subsequent characterisation (which is a problem of the lex causae)
real estate or immovables (when lex situs applies)
renvoi
unknown legal institutions
law of nationality (when lex patriae applies)
international treaties
The process
The court is required to analyse the pleadings prepared by the parties and to assign each component element to the most appropriate juridical concept or category. The rules of any given system of law are arranged under different categories, addressing procedure, status, contract, tort, divorce, nullity, etc. For each category, there is one or more choice of law rule(s). Hence, for example, all questions as to the status of a person before a court, viz. an infant or adult, legitimate, legitimated or illegitimate, married or not, mentally incapacitated or not, bankrupt or not, etc. will all be governed by the person's personal law, namely the law of nationality (the lex patriae) or habitual residence in a civil law state, or the law of domicile (the lex domicilii) in a common law state.
Characterising laws as either procedural or substantive is necessary, but this part of the process can be abused by the forum court to maximise the use of the local law.
The generality of the characterisation process is not, and cannot be, a wholly scientific process. It is always a matter of interpretation. For example, if A who is a national of Arcadia, dies having made a valid local will leaving land situated in Barsoom to C who is domiciled in Catilage, how is the issue to be classified? One might say that any rights that C might have are vested by the will that was made in Arcadia (i.e. the lex loci actus). Equally, the right to succeed to title might be an aspect of C's status as the oldest surviving male heir under Cartilagean law (the lex loci domicilii). Or it may be a matter for the law of Barsoom since all matters of title to land must be adjusted by the lex situs as the law of the place where the land is situated. Thus, completely different judgments might result depending on how the forum court characterises the action. One of the most enduring solutions to this problem was proposed by Savigny (1779–1861). He argued that it was always necessary for the court to find the "natural seat" or "centre of gravity" for the case by identifying the largest cluster of "connecting factors" to a particular legal system. If all courts adopted such an international outlook, he reasoned, this would eliminate forum shopping by producing the same choice of law no matter where the case was begun. Unfortunately, the theory has not delivered the desired results. Forum shopping remains a problem, and neither legislators nor judges have been able to agree on characterisation issues, producing classifications that extend rather than reduce international divergences. In an attempt to avoid obviously unjust results in particular cases, some judges therefore created a number of public policy exceptions to justify decisions "on the merits". Ernest G Lorenzen commented that this strategy was a warning that there must be serious problems with the rules if policy exceptions were the solution.
Exclusion of the foreign law
Because the early system of connecting factors was mechanical and inflexible, the results could offend a court's sense of justice. For example, with the development of the motor car, the classification of the cause as tort required the application of the lex loci delicti commissi rule. In France, the Cour de Cassation's insistence on this linkage frequently barred or severely limited relief for French parties injured in states that had no developed law for the compensation of such victims. Consequently, the lower courts used a variety of judicial devices to avoid the injustice. In the U.S., the New York Court of Appeals set a national trend in Babcock v. Jackson, 240 N.E.2d 279 (N.Y. 1963), when it decided to abandon the lex loci delicti rule completely. Most jurisdictions have not been so radical, preferring to retain the framework of categories and choice of law rules but leave public policy in place as the avoidance device.
This exception provides that states will not apply any 'foreign' law that offends the deeply held principles of the forum state's legal system. For example, it would be considered improper to give enforcement to a law that defined the status of a person as a slave or as in the possession of another, e.g. for the purposes of sexual exploitation. In cases involving alleged immorality or injustice, this rule has been criticised as susceptible to abuse, for a court could characterise almost any statute or rule as being offensive to the public policy of their state. Less controversial are bars to any cases that would give extraterritorial effect to laws which are confiscatory, seeking to collect taxes owing in another state, or penal, i.e. laws that are designed to punish the party committing the wrong, rather than to compensate the party that suffered loss or injury. This can sometimes lead to a fine balancing act between claims for compensatory and exemplary damages. States traditionally will not apply the penal laws of other states in civil suits, just as one state would not apply the criminal laws of another state against a person charged with committing a crime.
In the U.S., the concept of governmental interest analysis was developed by Brainerd Currie and is favoured by many American conflicts writers. Currie focused on each state's substantive rules rather than on a metaphorical test for the seat of the legal relationships and assumed that governments are less interested in what happens within their territorial boundaries than in the well-being of their subjects. The methodology he proposed relies almost entirely on the personal nexus between the litigants and the states. However, there is no single test for this nexus at an international level. Some states use the concept of domicile, others nationality, and the remainder citizenship; and definitions of domicile vary from state to state. So this methodology has never been accepted outside the U.S. Further, if the litigants are from different states, relying on one personal law rather than another may be arbitrary. To cope with this difficulty, Currie advocated that the lex fori should be applied whenever his method produced what he called a "true conflict". Critics have therefore alleged that Currie's approach is nothing more than a complex pretext for not applying foreign law when there are two or more personal laws.
Modern approach
Given that the characterisation system and the choice of law rules were operating in an inflexible way, the solution has been to allow the growth of judicial discretion within both parts of the system. Hence, most legal systems have opted for what English law calls the proper law approach, i.e. the identification and application of the law that has the closest connection with the cause(s) of action. It is accepted that the words have the same apparent spirit as the older approach, which requires some caution in their evaluation. In theory, this flexibility will preserve an international outlook and multilateral approach by the courts and, outside America, the results are not unencouraging. In the U.S., however, the test now adopted is termed the most significant contacts test or, in a slightly modified form defined in the Second Conflicts Restatement, the most significant relationship test. But, because different courts have interpreted these impressionistic phrases in different ways, there has been little judicial consistency.
297. better law approach = 較好法律分析說
The better-law approach, attempts to determine which of two potentially applicable laws is better as a solution to the problem at hand. Not surprisingly, both the governmental-interest and the better-law approaches tend to apply the lex fori, either because the other law is deemed to be inapplicable or because each government would of course think their own legal system and applicable laws are the better ones. There thus seems to be a compromise and a relatively more rational thinking to choose 'better laws' as their mutual applicable laws.   
298. doctrine of the most significant relationship = 最密切聯繫說
Tasmania's Relationships Act 2003 provided for registration and recognition of a type of registered partnership in two distinct categories: Significant Relationships and Caring Relationships. The same Act also amended 73 pieces of legislation to provide registered partners with nearly all of the rights offered to married couples within the state. Furthermore, since July 2009, these relationships are recognised at federal level, providing couples with almost all of the federal rights and benefits of marriage. The legislation came into effect on 1 January 2004. In September 2010, the Parliament of Tasmania approved legislation to recognize same-sex unions performed outside Tasmania as significant relationships.
299. formula of attribution = 歸屬公式
It is a formula, that is, a fixed model or package, in which the bilateral conflicts meet with by means of a legal system that is agreed and acepted by both parties.
300. doctrine of state immunity = 國家豁免
The doctrine and rules of state immunity concern the protection which a state is given from being sued in the courts of other states. The rules relate to legal proceedings in the courts of another state, not in a state's own courts. The rules developed at a time when it was thought to be an infringement of a state's sovereignty to bring proceedings against it or its officials in a foreign country.
There is now a trend in various states towards substantial exceptions to the rule of immunity; in particular, a state can be sued when the dispute arises from a commercial transaction entered into by a state or some other non-sovereign activity of a state. The United Nations Convention on Jurisdictional Immunities of States and their Property, which is not yet in force, formulates the rules and the exceptions to them. It does not cover criminal proceedings, and it does not allow civil actions for human rights abuses against state agents where the abuse has occurred in another country.
301. full faith and credit clause = 充分互信尊重條款
The Full Faith and Credit Clause is the familiar name used to refer to Article IV, Section 1 of the United States Constitution, which addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." According to the Supreme Court, there is a difference between the credit owed to laws (i.e. legislative measures and common law) as compared to the credit owed to judgments. Judgments are generally entitled to greater respect than laws, in other states. At present, it is widely agreed that this Clause of the Constitution has little impact on a court's choice of law decision, although this Clause of the Constitution was once interpreted differently.
302. foreign judgment = 外國法院判決
In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement.
The "recognition" of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another "foreign" country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit.
In American legal terminology, a "foreign" judgment means a judgment from another state in the United States or from a foreign country. To differentiate between the two, more precise terminology used is "foreign-country judgment" (for judgments from another country) and "foreign sister-state judgment" (from a different state within the United States).
Once a foreign judgment is recognized, the party who was successful in the original case can then seek its "enforcement" in the recognizing country. If the foreign judgment is a money judgment and the debtor has assets in the recognizing jurisdiction, the judgment creditor has access to all the enforcement remedies as if the case had originated in the recognizing country, e.g. garnishment, judicial sale, etc. If some other form of judgment was obtained, e.g. affecting status, granting injunctive relief, etc., the recognizing court will make whatever orders are appropriate to make the original judgment effective.
Foreign judgments may be recognized either unilaterally or based on principles of comity, i.e. mutual deference between courts in different countries.
Between two different States in the United States, enforcement is generally required under the "Full Faith and Credit Clause" (Article IV, Section 1) of the U.S. Constitution, which compels a State to give another State's Judgment an effect as if it were local. This usually requires some sort of an abbreviated application on notice, or docketing. Between one State in the United States, and a foreign country, Canada, for example, the prevailing concept is comity. The Court in the United States, in most cases, will unilaterally enforce the foreign judgment, without proof of diplomatic reciprocity, either under judge-made law or under specific statutes.
Recognition will be generally denied if the judgment is substantively incompatible with basic legal principles in the recognizing country. For example, US courts now, in accordance with the August 2010 Speech Act, not permit enforcement of foreign libel judgments in cases (e.g. based on libel) unless the foreign country protects free speech to the same extent as the U.S. Constitution does in the First Amendment, etc.
Enforcement of foreign judgments in the U.S.
If the time to appeal in the court of origin has lapsed, and the judgment has become final, the holder of a foreign judgment, decree or order may file suit before a competent court in the U.S. which will determine whether to give effect to the foreign judgment. A local version of the Uniform Foreign Money Judgments Recognition Act applies in most states, for example in California. 13 U.L.A. 149 (1986).
A judgment rendered in a "sister" state or a territory of the U.S. is also referred to as a "foreign judgment." 47 states, the District of Columbia, Northern Mariana Islands and the Virgin Islands have adopted the Uniform Enforcement of Foreign Judgments Act, 13 U.L.A. 261 (1986), which requires the states and the territories to give effect to the judgments of other states and territories, if an exemplified copy of the foreign judgment is registered with the clerk of a court of competent jurisdiction along with an affidavit stating certain things. The only U.S. states which have not adopted the Uniform Enforcement of Foreign Judgments Act are California, Massachusetts and Vermont. Legislation was introduced in Massachusetts in 2012 (Bill H.4268) to adopt the Uniform Enforcement of Foreign Judgments Act.
Exceptions
A state may not enforce a foreign-country judgment in the following cases:
The judgment was not rendered by an impartial tribunals under procedures compatible with the requirements of due process of law;
The foreign court did not have personal jurisdiction over the defendant;
The foreign court did not have jurisdiction over the subject matter;
The defendant did not receive notice of the proceedings in sufficient time to enable him to defend;
The judgment was obtained by fraud;
The judgment is repugnant to the public policy of the state where enforcement is sought;
The judgment conflicts with another final and conclusive judgment;
The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute was to be settled;
In the case of jurisdiction based only on personal service, the foreign court was an inconvenient forum for the trial; or
The judgment seeks to enforce the revenue and taxation laws of a foreign jurisdiction.

完成囉。不多不少，剛好五十集。
剛開始上菜時，阿鴻是個嚴肅的法學家；上完最後一道菜時，阿鴻已是個慈愛又充滿活力的林肯律師儲備幹部，想必是   上帝眼中的好僕人。
阿鴻成為一個好弟兄，創造了小阿鴻成為一個小弟兄，榮真以你為俊、翔真以你為偉、我則喜流滿心啊！
親愛的弟兄，至此，法學英文的重要詞彙、定義、與用法，已大致完成一個統整性的歸納，想必阿鴻已建立起一個進階且較為全面的英美法用語概念了；初步的字彙，已如前述，皆收錄在 ｢法學英文基礎字彙｣ 裡；進一步關於英美加等國的判決案例，請參考 ｢國際律師網｣，裡面有相當詳盡的資料可供考查。
小弟的階段性任務，至此應算告一段落了，但仍不敢稍有懈怠，且要時時儆醒戒慎，仰望主恩，勇敢向前！
順祝春節快樂、以馬內利！最後，再以聖經上的一句話，作為我們今後共同努力的目標：

Whatsoever your hand finds to do, do it with all your might. (Ecclesiastes 9:10) ~ 共勉之

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