第一篇：遲到的正義前言何家弘

2013年，冤錯(cuò)案件一次又一次成為中國(guó)社會(huì)關(guān)注的熱點(diǎn)。從浙江張氏叔侄冤案，到河南李懷亮冤案，再到安徽于英生冤案，不該發(fā)生的錯(cuò)判一次次被復(fù)制。人們不禁要追問(wèn):為什么? “浙江張氏叔侄冤案”披露后，一些輿論把矛頭指向當(dāng)年負(fù)責(zé)預(yù)審的一位女警察。據(jù)說(shuō)，此人曾經(jīng)是中央電視臺(tái)2006年“浙江神探”系列節(jié)目的主人公之一，從警二十余年，工作表現(xiàn)出色，多次立功受獎(jiǎng)。更有報(bào)道稱，她“近五年來(lái)牽頭主辦的重特大案件達(dá)350余起，準(zhǔn)確率達(dá)到100%……各項(xiàng)辦案指標(biāo)年年在省、市名列前茅，經(jīng)她審核把關(guān)的重特大惡性案件，移送起訴后無(wú)一起冤假錯(cuò)案”。成功辦理張氏叔侄奸殺案和勾海峰殺害女大學(xué)生案后，她還獲得了全國(guó)“三八紅旗手”等光榮稱號(hào)。然而，在當(dāng)下輿論的漩渦中，這位“女神探”變成了制造冤案的罪魁禍?zhǔn)住Ｎ也徽J(rèn)識(shí)這位警察，但是我以為，就像當(dāng)年把她“神探化”是不恰當(dāng)?shù)囊粯?，今天把她“妖魔化”也是不恰?dāng)?shù)?。這世上本沒有神探，因?yàn)槿魏蝹商蕉际瞧胀ㄈ耍际怯锌赡芊稿e(cuò)誤的。誠(chéng)然，作為公安機(jī)關(guān)負(fù)責(zé)把守案件質(zhì)量關(guān)的預(yù)審部門負(fù)責(zé)人，她對(duì)于這起錯(cuò)案負(fù)有不可推卸的責(zé)任，但是，這起錯(cuò)案并不是她一個(gè)人就能制造的，除了其他公安人員之外，還有承擔(dān)審查起訴和法律監(jiān)督職責(zé)的檢察官和把守司法公正最后一道關(guān)口的法官。這樣一起事實(shí)不清證據(jù)不足的案件，為什么竟然一路綠燈地走完了刑事訴訟的全程?刑事司法系統(tǒng)的防錯(cuò)機(jī)制為何全部失效? 刑事司法有一個(gè)美麗的傳說(shuō)，那就是“既不冤枉一個(gè)好人，也不放縱一個(gè)壞人”。但是，在任何一個(gè)國(guó)家的刑事司法制度下面，這都是做不到的。從這個(gè)意義上講，刑事錯(cuò)案的發(fā)生具有不可避免性，只是或多或少的問(wèn)題。在當(dāng)今世界，不僅法制不太健全的國(guó)家有刑事錯(cuò)案，法制比較健全的國(guó)家也有刑事錯(cuò)案。例如，自20世紀(jì)90年代中期開始，美國(guó)的許多州都建立了“無(wú)辜者中心”(InnocentCenter)，通過(guò)“無(wú)辜者行動(dòng)”(InnocentProject)對(duì)可能錯(cuò)判的案件進(jìn)行復(fù)查。錯(cuò)案復(fù)查的主要手段是進(jìn)行DNA鑒定，因此復(fù)查的案件多為強(qiáng)奸案和殺人案。2011年4月7日至11日，筆者應(yīng)邀到美國(guó)的辛辛那提市參加了“2011年無(wú)辜者協(xié)作網(wǎng)研討會(huì)——錯(cuò)判的國(guó)際探索”(2011InnocenceNetworkConference:anInternationalExplorationofWrongfulConviction)，并在會(huì)上做了關(guān)于中國(guó)大陸地區(qū)刑事錯(cuò)案問(wèn)題的主題發(fā)言。截止到開會(huì)時(shí)，美國(guó)的“無(wú)辜者行動(dòng)”通過(guò)DNA檢驗(yàn)共發(fā)現(xiàn)了271起錯(cuò)案。

古今中外，冤假錯(cuò)案總是刑事司法領(lǐng)域中難以驅(qū)散的幽靈。它們?nèi)綦[若現(xiàn)，時(shí)明時(shí)暗，啃噬著社會(huì)公眾的良心，煎熬著司法官員的靈魂。毫無(wú)疑問(wèn)，它們對(duì)于那些當(dāng)事人及其家人來(lái)說(shuō)是飛天橫禍，是滅頂之災(zāi)，但是它們也在一定程度上推動(dòng)了刑事司法制度的文明進(jìn)步和良性發(fā)展。冤錯(cuò)案件遮蔽在刑事司法的陰影之中。光線的陰暗使人們無(wú)法看清其中的景物，甚至成為人們視覺中的盲點(diǎn)，讓人們誤以為刑事司法是一片光明燦爛。然而，一些在社會(huì)中產(chǎn)生廣泛影響的冤案把媒體的聚光燈吸引過(guò)來(lái)，也把民眾的目光吸引過(guò)來(lái)，于是這盲點(diǎn)就變成了亮點(diǎn)，使人們看清了那些被陰影遮蔽的丑陋的缺陷，從而推進(jìn)司法制度的改革和完善。例如，美國(guó)司法實(shí)踐中辨認(rèn)規(guī)則的完善和被判有罪者享有“審后DNA檢驗(yàn)權(quán)”的立法，就都在一定程度上歸功于錯(cuò)判。

為何在當(dāng)代中國(guó)還會(huì)接二連三地出現(xiàn)冤案?這些冤案是如何形成的?我國(guó)應(yīng)該如何構(gòu)建錯(cuò)案預(yù)防體系和錯(cuò)案救濟(jì)機(jī)制?2005年底，我們帶著這樣的問(wèn)題成立了課題組，通過(guò)舉辦論壇、進(jìn)行座談、召開研討會(huì)、進(jìn)行問(wèn)卷調(diào)查和典型案例分析等方式對(duì)我國(guó)的刑事錯(cuò)判問(wèn)題進(jìn)行了多層面和多路徑的調(diào)查研究。我們發(fā)現(xiàn)，錯(cuò)判的形成似乎延循了一個(gè)模式：一樣的偏重口供，一樣的非法取證，一樣的事實(shí)不清，一樣的疑罪從輕。這不是執(zhí)法人員或司法人員個(gè)人的問(wèn)題，而是刑事司法制度的問(wèn)題。制度存在漏洞和弊端，錯(cuò)判才一次又一次被復(fù)制。同時(shí)，我們還發(fā)現(xiàn)，在每一起冤錯(cuò)案件的背后都隱藏著令人心痛心酸心碎的人生故事。于是，我們?cè)谛侣劽襟w公開報(bào)道的一百多起冤錯(cuò)案件中，精心挑選了影響巨大而且故事性強(qiáng)的十個(gè)案例，在進(jìn)行深入的個(gè)案分析的基礎(chǔ)上寫成冤案故事，并且透過(guò)這些案例解析刑事司法制度中存在的漏洞或弊端。我們希望，這些冤案中的人和事能夠留傳給后人。

何家弘

寫于北京世紀(jì)城癡醒齋

2013年12月24日

第二篇：法律英語(yǔ)課文總結(jié)-何家弘

Lesson One: Legal System 法律制度

Part One

The United States is at once a very new nation and a very old nation.It is a new nation compared with many other countries, and it is new, too, in the sense that it is constantly being renewed by the addition of new elements of population and of new States.But in other senses it is old.It is the oldest of the “new” nations--the first one to be made out of an Old World colony.It has the oldest written constitution, the oldest continuous federal system, and the oldest practice of self-government of any nation.One of the most interesting features of Americans youth is that the whole of its history belongs in the period since the invention of the printing press.The whole of its history is, therefore, recorded: indeed, it is safe to say that no other major nation has so comprehensive a record of its history as has the United States, for events such as those that are lost in the legendary past of Italy or France or England are part of the printed record of the United States.And the American record is not only comprehensive;it is immense.It embraces not only the record of the colonial era and of the Nation since 1776, but of the present fifty States as well, and the intricate network of relationships between States and Nation.Thus, to take a very elementary example, the reports of the United States Supreme Court fill some 350 volumes, and the reports of some States are almost equally voluminous: the reader who wants to trace the history of law in America is confronted with over 5,000 stout volumes of legal cases.No one document, no handful of documents, can properly be said to reveal the character of a people or of their government.But when hundreds and thousands of documents strike a consistent note, over more than a hundred years, we have a right to say that is the keynote.When hundreds and thousands of documents address themselves in the same ways, to the same overarching problems, we have a right to read from them certain conclusions which we can call national characteristics.Part Two

The American legal system, like the English, is methodologically mainly a case law system.Most fields of private law still consist primarily of case law and the extensive and steadily growing statutory law continues to be subject to binding interpretation through case law.Knowledge of the case law method as well as of the technique of working with case law therefore is of central importance for an understanding of American law and legal methodology.The Common Law is historically the common general law--with supremacy over local law--which was decreed by the itinerant judges of the English royal court.The enforcement of a claim presupposed the existence of a special form of action, a writ, with the result that the original common law represented a system of “actions” similar to that of classical Roman law.If a writ existed(in 1227)a claim could be enforced;there was no recourse for a claim without a writ, the claim did not exist.This system became inflexible when the “Provisions of Oxford”(1258)prohibited the creation of new writs, except for the flexibility which the “writ upon the case” allowed and which later led to the development of contract and tort law.The narrow limits of the forms of action and the limited recourse they provided led to the development of equity law and equity case law.“Equity”, in its general meaning of doing “equity”, deciding ex aequo et bono, was first granted by the King, and later by his Chancellor as “keeper of the King's conscience”, to afford relief in hardship cases.In the fifteenth century, however, equity law and equity case law developed into an independent legal system and judiciary(Court of Chancery)which competed with the ordinary common law courts.Its rules and maxims became fixed and, to a degree, inflexible as in any legal system.Special characteristics of equity law include: relief in the form of specific performance(in contrast to the common law award of compensatory damages), the injunction(a temporary or final order to do or not to do a specific act), the development of socalled maxims of equity law which permeated the entire legal system and in many cases explain the origin of modern legal concepts.However, equitable relief regularly will lie only when the common law relief is inadequate.For instance, specific performance for the purchase of real property will be granted because common law damages are deemed to be inadequate since they cannot compensate the buyer in view of the uniqueness attributed to real property.As the common law, equity law became part of American law either through judicial acceptance or through express statutory provision.Today, both legal systems have been merged in many American jurisdictions(beginning with New York in 1848), with the result that there is only one form of civil suit in these jurisdictions as well as in federal practice.Only few States continue to maintain a separate chancery court.Nevertheless, the reference to the historical development is important because, on the one hand, it explains the origin and significance of many contemporary legal concepts(for instance the division of title in the law of property)and, on the other hand, it is still relevant for the decision of such questions whether, for instance, there is a right to a trial by jury(only in the case of common law suits, in other cases only before the judge).In addition, the differentiation will determine whether the “ordinary” common law relief of damages applies or whether the “extraordinary” equity remedy of specific performance is available.“Case law” describes the entire body of judge-made law and today includes common law and equity precedents.In imprecise and confusing usage the terms “common law” and “case law” are often used synonymously, with the term “common law” in this usage connoting judge-made law in general as contrasted with statutory law.“Case law” always connotes judg-made law, while “common law” in contrast--depending on the meaning intended--describes either the judge made law in common law subject matters or，Lesson Two：Legal Profession 法律職業(yè)

Part One： The Bar

The regulation of the legal profession is primarily the concern of the states, each of which has its own requirements for admission to practice.Most require three years of college and a law degree.Each state administers its own written examination to applicants for its bar.Almost all states, however, make use of the Multistate Bar Exam, a daylong multiplechoice test, to which the state adds a daylong essay examination emphasizing its own law.No apprenticeship is required either before or after admission.A lawyer's practice is usually confined to a single community for, although a lawyer may travel to represent clients, one is only permitted to practice in a state where one has been admitted.However, one who moves to another state can usually be admitted without examination if one has practiced in a state where one has been admitted for some time, often five years.A lawyer may not only practice law, but is permitted to engage in any activity that is open to other citizens.It is not uncommon for the practicing lawyer to serve on boards of directors of corporate clients, to engage in business, and to participate actively in public affairs.A lawyer remains a member of the bar even after becoming a judge, an employee of the government or of a private business concern, or a law teacher, and may return to private practice from these other activities.A relatively small number of lawyers give up practice for responsible executive positions in commerce and industry.The mobility as well as the sense of public responsibility in the profession is evidenced by the career of Harlan Fiske Stone who was, at various times, a successful New York lawyer, a professor and dean of the Columbia School of Law, Attorney General of the United States, and Chief Justice of the United States.There is no formal division among lawyers according to function.The distinction between barristers and solicitors found in England did not take root in the United States, and there is no branch of the profession that has a special or exclusive right to appear in court, nor is there a branch that specializes in the preparation of legal instruments.The American lawyers domain includes advocacy, counselling, and drafting.Furthermore, within the sphere broadly defined as the “practice of law” the domain is exclusive and is not open to others.In the field of advocacy, the rules are fairly clear: any individual may represent himself or herself in court but, with the exception of a few inferior courts, only a lawyer may represent another in court.Nonlawyers are, however, authorized to represent others in formal proceedings of a judicial nature before some administrative agencies.The lines of demarcation are less clear in the areas of counselling and drafting of legal instruments, as for example between the practice of law and that of accounting in the field of federal income taxation.However, the strict approach of most American courts is indicated by a decision of New Yorks highest court that a lawyer admitted to practice in a foreign country but not in New York is prohibited from giving legal advice to clients in New York, even though the advice is limited to the law of the foreign country where the lawyer is admitted.A foreign lawyer may, however, be admitted to the bar of one of the states and may, even without being admitted, advise an American lawyer as a consultant on foreign law.Part Two： Lawyers in Private Practice

Among these fifteen lawyers in practice, nine, a clear majority, are single practitioners.The remaining six practice in law firms, which are generally organized as partnerships.Four or five of these six are partners and the others are associates, a term applied to salaried lawyers employed by a firm or another lawyer.This trend toward group practice is of relatively recent origin.Throughout most of the nineteenth century law practice was general rather than specialized, its chief ingredient was advocacy rather than counselling and drafting, and the prototype of the American lawyer was the single practitioner.Marked specialization began in the latter part of that century in the large cities near the financial centers.With the growth of big business, big government, and big labor, the work of the lawyer accomodated itself to the needs of clients for expert counselling and drafting to prevent as well as to settle disputes.The best lawyers were attracted to this work and leadership of the bar gravitated to persons who rarely if ever appeared in court and who were sought after as advisors, planners, and negotiators.Today the lawyer regards it as sound practice to be continuously familiar with clients business problems and to participate at all steps in the shaping of their policies.Major business transactions are rarely undertaken without advice of counsel.Part Three: House Counsel Out of every twenty lawyers, two are employed by private business concerns, such as industrial corporations, insurance companies, and banks, usually as house or corporate counsel in the concerns legal department.The growth of corporations, the complexity of business, and the multitude of problems posed by government regulation make it desirable for such firms to have in their employ persons with legal training who, at the same time, are intimately familiar with the particular problems and conditions of the firm.In large corporations the legal department may number one hundred or more.The general counsel, who heads the office, is usually an officer of the company and may serve on important policy making committees and perhaps even on the board of directors.House counsel remain members of the bar and are entitled to appear in court, though an outside lawyer is often retained for litigation.However, it is the house counsels skill as advisor rather than as advocate that is a valued asset.Constantly in touch with the employers problems, house counsel is ideally situated to practice preventive law and may also be called upon to advise the company on its broader obligation to the public and the nation.Part Four： Lawyers in Government A parallel development has taken place in government and two out of twenty lawyers are now employees of the federal, state, county, and municipal governments, exclusive of the judiciary.Many of those entering public service are recent law graduates who find government salaries sufficiently attractive at this stage of their careers and seek the training that such service may offer as a prelude to private practice.Limitations on top salaries, however, discourage some from continuing with the government.The majority serves by appointment in the legal departments of a variety of federal and state agencies and local entities.The United States Department of Justice alone employs more than two thousands, and the Law Department of the City of New York more than four hundreds.Others are engaged as public prosecutors.Federal prosecutors, the United States attorneys and their assistants, are appointed by the President and are subordinate to the Attorney General of the United States.State prosecutors, sometimes known as district attorneys, are commonly elected by each county and are not under the control of the state attorney general.As a rule, lawyers in government are directly engaged in legal work, since law training is infrequently sought as preparation for general government service.However, a small but important minority that constitutes an exception to this rule consists of those who have been appointed to high executive positions and those who have been elected to political office.Though the participation of lawyers in government has declined recently, for two centuries lawyers have made up roughly half of the Congress of the United States and of the state governors.These figures bear out the comment of Chief Justice Stone that, “No tradition of our profession is more cherished by lawyers than that of its leadership in public affairs.” Lesson Three: Legal Education 法律教育

In 1983, over 125,000 law students were studying in more than 170 ABA accredited law schools including public law schools supported in part by government funds;private law schools supported by contributions from individuals and foundation funds;and local or national schools offering full time or part time legal study programs.As virtually the only way to prepare for membership in the legal profession, law schools in the United States fulfill several functions including professional training and socialization of future lawyers and screening and gatekeeping for entrance to the profession.Since there is no central institution where all lawyers practice, the only institutional experience which lawyers have in common is law school.The criticisms which range from “mild to caustic” of the way in which law schools have carried out these functions and of the functions themselves have been persistent, diverse and rooted in the historical and political development of the profession.These criticisms have focussed on the curriculum and the dominance of the case method;the distribution of power and prestige reflected in the hierarchy within and among the law schools;and the imbalance in terms of women and minorities in the student body and faculty in the law schools.Part One： Curriculum and the Case Method

The traditional first-year program offered in virtually all American law schools includes contracts, torts, property, criminal law and civil procedure.Duncan Kennedy has described the traditional first-year curriculum as basically teaching the ground rules for late 19th century laissez-faire capitalism.The second year and third year course expound the moderate reformist New Deal program and the administrative structure of the modern regulatory state.The peripheral subjects, if they are offered, include legal philosophy, legal history, legal process, and clinical education, a “kind of playground or finishing school for learning the social art of self presentation as a lawyer”.However, as new areas of the law continue to develop in response to contemporary issues and problems, some law schools have expanded curricula to include courses and clinical programs in environmental law, housing and urban development, women`s rights, health in the workplace, welfare rights and consumer protection.There are also increasing efforts to teach law in interdisciplinary contexts, drawing on other disciplines such as history, psychology, sociology, medicine, and economics.In teaching the traditional curriculum, law teachers in almost all the law schools use to some extent the case method or the Socratic method.Developed in the 1870s by Christopher Columbus Langdell at the Harvard Law School, the case method looked to the common law as the source of legal priniciples and focussed on the teaching of an abstract conception of the law as a science.The legal principles elicited were to be taught divorced from the “grubby world of practice--and also from politics, history, economics, and social contexts”.This narrow formalistic approach was justified on the ground that it taught students how to state, analyze, evaluate and compare concrete fact situations thus developing their powers and skills of analysis, reasoning, and expression.However, this process of learning “how to think like a lawyer” has been criticized as having an adverse impact both on the students and the quality of future lawyering.Students, law teachers, and others have pointed to the alienation, anxiety, hostility and aggression caused by use of the case method or Socratic method.The narrow and destructive interaction of this dialogue, or often “no dialogue”, contributes to the impairment of the ability to care about other people, a professional unemotionalism and cynicism on the part of law students.And it is not only the law students who suffer from this narrowing of their professional selves.The work of a lawyer involves continuous contacts with clients, associates, other lawyers, judges, witnesses, others affected by the law, and involves the lawyer’s own goals, attitudes, performance, and sense of satisfaction.Part Two： Law School Hierarchy

Duncan Kennedy has described the law schools as “intensely political places”, characterized by a “tradeschool mentality, the endless attention to trees at the expense of forests.” The law schools function as the institution for “ideological training for willing service in the hierarchies of the corporate welfare state”.In the ranking and evaluation of students, students learn to accept their place in a hierarchy which is presented as just and inevitable and “so prepare themselves for all the hierarchies to follow”.In the law teachers modeling of hierarchical relationships with students, colleagues, secretaries and support staff, students learn a particular style of condescension towards perceived inferiors and deference towards perceived superiors.And under the subtle but intense pressure to conform to the “white, male, middleclass tone” set by law faculties which are overwhelmingly white, male, and middleclass, law students adapt, “partly out of fear, partly out of hope of gain, partly out of genuine admiration for their role models”.In these ways, “l(fā)egal education is one of the causes of legal hierarchy.Legal education supports it by analogy, provides it a general legitimating ideology by justifying the rules that underlie it, and provides it a particular ideology by mystifying legal reasoning.Legal education structures the pool of prospective lawyers so that their hierarchical organization seems inevitable, and trains them to look and think and act just like all the other lawyers in the system”.In addition to the hierarchy within the law schools suggested by Kennedy, other analyses of the law schools functions and relationship to the profession suggest the existence of a hierarchy among the law schools.The top dozen or so elite law schools occupy a position of power and prestige which is partially reflected in the professional career paths of their graduates and in the “old boy networks” connecting the law schools and the rest of the legal profession.The models of the “l(fā)aw school as the gateway to the American power elite became possible with the New Deal”.Felix Frankfurter’s placement network for the “best and the brightest” into influential public policy positions during the New Deal in the 1930s was an early example of this kind of network.During his tenure at Harvard and later while on the Supreme Court, Frankfurter developed an “old boy network” which was intimately involved with the placement of many of the “elite” lawyers, all of whom were white and male, into public service.The typical Frankfurter recruit was “a graduate of Harvard Law School, politically liberal, usually ranked high in his class, and either an obvious product of upper class gentile culture or an obvious product of a radically different culture who was 'comfortable' in the upper class gentile world”.In the current hiring practices of the major law firms and in the competition for judicial clerkships, and in the appointments to law faculties, the graduates of the elite schools continue to have an advantage over graduates of other schools.In a recent study of Chicago lawyers, Zemans and Rosenblum found that lawyers who attended “high-prestige law schools and graduated in the top 20 percent of their classes were much more likely to practice in large firms and specialize in high-prestige fields of law”.In terms of appointments to law faculties, 60% of the legal profession’s teaching specialists are produced by fewer than 15% of the nations accredited law schools.These law teacher producer schools are mostly national, located in urban locations, and include schools such as Harvard, Yale, Columbia, University of Michigan, Chicago, New York University, Northwestern University, and Georgetown.If it is true that the fulltime faculty of the law schools “have a virtual monopoly on who will and will not enter the(legal)profession” and “on the power to mold future generations”, then the existence of a hierarchy among the law schools suggests that an elite group of schools is primarily responsible for staffing the law schools, which in turn produce lawyers for the hierarchies within the profession.Lesson Four：Judicial System 司法系統(tǒng)

Part One： Courts

There are fifty-two separate court systems in the United States.Each state, as well as the District of Columbia, has its own fully developed, independent system of courts and there is a separate federal court system.The federal courts are not superior to the state courts;they are an independent, coordinate system authorized by the United States Constitution, Art.Ⅲ,§2, to handle matters of particular federal interest.The presence of two parallel court systems often raises questions concerning the relationship of the state and federal systems, presenting important issues of federalism.The United States Supreme Court, composed of nine justices, sits as the final and controlling voice over all these systems.Although a few states, such as Nebraska, have a two-tiered system, most states, as well as the federal courts, are based on a three-tiered model.That means that for any litigant there will be the opportunity to plead his case before a trial court and then, should he lose, there are two levels of appeal at which he ultimately may succeed.For example, in the federal system the trial court is the United States District Court, of which there is at least one in every state.Many larger states are divided into two, three or even four judicial districts, depending on population, geography and caseload.There are ninety-four districts in the United States and each district court has one judge, or more commonly two or more.After an adverse judgment in the district court, a litigant may appeal to the United States Court of Appeals for the circuit in which the district court is located.There are eleven numbered intermediate appellate courts in the federal system, each including anywhere from three to ten states and territories.Additionally, there is a Court of Appeals for the District of Columbia, hearing appeals from the federal district court there, and one for the Federal Circuit, taking appeals from various specialized federal tribunals, such as the Claims Court.Each court of appeals has four or more judges who sit in panels of three to review district court decisions, as well as some decisions of administrative agencies.A losing litigant in the court of appeals may, in some cases, be able to obtain review by the United States Supreme Court.Cases in the state courts similarly may proceed through a trial court, a state appellate court, and then the state supreme court.If a federal constitutional question is involved the decision of the state Supreme Court may be reviewed by the United States Supreme Court.Since 1988, review by the Supreme Court in civil cases is discretionary;virtually all civil appeals as of right to the highest court have been abolished.Three-tiered systems vary on the role which the highest court plays.The approaches taken reflect differing philosophies with regard to what the highest court should do.For example, in California only criminal cases in which capital punishment has been imposed are appealable as of right to the state supreme court.Similarly, in the federal courts, except in a few very limited circumstances, appeals to the United States Supreme Court are discretionary, by writ of certiorari.The Court decides for itself what are the most important questions that deserve its attention and will refuse to review decisions raising issues that it feels are not as crucial.In this way it supervises the administration of law by the lower courts on an ad hoc basis.At the other end of the spectrum, such as in New York, appeals to the states highest court are as of right in a great many cases provided for by statute.The primary function of the highest court in New York appears to be to assure that cases are correctly decided.It is necessary to check carefully the statutes of the system in which you are appearing to determine the specific rules regarding review by those appellate courts.Part Two： Judges

Fewer than one in twenty of those admitted to practice law is a federal, state, county, or municipal court judge.Except for some inferior courts, judges are generally required to be admitted to practice but do not practice while on the bench.There is so little uniformity that it is difficult to generalize further than to point out three salient characteristics that relate to the ranks from which judges are drawn, to the method of their selection, and to their tenure.Judges are drawn from the practicing bar and less frequently from government service or the teaching profession.There is in the United States no career judiciary like that found in many other countries and there is no prescribed route for the young law graduate who aspires to be a judge, no apprenticeship that must be served, no service that must be entered.The outstanding young law graduates who act for a year or two as law clerks to the most distinguished judges of the federal and state courts have only the reward of the experience to take with them into practice and not the promise of a judicial career.While it is not uncommon for a vacancy on a higher court to be filled by a judge from a lower court, even this cannot be said to be the rule.The legal profession is not entirely unaware of the advantages of a career judiciary, but it is generally thought that they are outweighed by the experience and independence which American lawyers bring to the bench.Many of the outstanding judges of the countrys highest courts have had no prior judicial experience.Criticism has centered instead on the prevalent method of selection of judges.State court judges are usually elected, commonly by popular vote, but occassionally by the legislature.Popular election has been the subject of much disapproval, including that of the American Bar Association, on the ground that the public lacks interest in and information on candidates for judicial office and that therefore the outcome is too often controlled by leaders of political parties.The situation has been somewhat improved since many local bar associations have undertaken to evaluate the qualifications of candidates and to support or oppose them on this basis.Since 1937, the American Bar Association has advocated the substitution of a system under which the governor appoints judges from a list submitted by a special nominating board and the judge then periodically stands unopposed for reelection by popular vote on the basis of his or her record.Such a system is now in effect, for at least some judges, in a substantial minority of states.In a small group of states, judges are appointed by the governor subject to legislative confirmation.This is also the method of selection of federal judges, who are appointed by the President subject to confirmation by the Senate.Even under the appointive system the selection of judges is not immune from political influence and appointees are usually of the Presidents or governor’s own party.But names of candidates for the federal judiciary are submitted to a committee of the American Bar Association and appointment is usually made only with its approval.The office of chief judge or chief justice is usually filled in the same manner as other judicial offices, although in some states it is filled from among the members of the court by rotation, by seniority of service, or by vote of the judges.The Chief Justice of the United States is appointed by the President, subject to Senate confirmation.The third characteristic is that judges commonly serve for a term of years rather than for life.For courts of general jurisdiction it is typically four, six, or eight years, and for appellate courts, six, eight, or ten years.Happily, even where selection is by popular election, it is customary to return to office for sitting judges whose service has been satisfactory.In a few state courts and in the federal courts the judges sit for life.Whether on the bench for a term of years or for life, a judge may be removed from office only for gross misconduct and only by formal proceedings.Instances of removal have been rare indeed and only a handful of federal judges have been removed by formal proceedings.The independence of the judiciary is also encouraged by the rule that a judge incurs no civil liability for judicial acts, even if guilty of fraud and corruption.The American Bar Association’s Code of Judicial Conduct has been widely adopted as a standard to which judges are expected to adhere.Salaries for the higher judicial offices are usually good although less than the income of a successful private practitioner, the prestige of these offices is high, and the bench has been able to attract many of the country’s ablest legal minds.The great names in American law are in large part the names of its great judges.Lesson Five：Constitution 憲法

Part One： The Constitution as Supreme Law

The U.S.Constitution, a relatively simple document, is the selfdesignated “supreme law of the land”.This clause is taken to mean that when state constitutions, or laws passed by state legislatures or the national Congress, are found to conflict with the federal Constitution, they have no force.Decisions handed down by the Supreme Court over the course of two centuries have confirmed and strengthened this doctrine of constitutional supremacy.Final authority is vested in the American people, who can change the fundamental law if they wish, by amending the Constitution, or--in theory, at least--drafting a new one.The peoples authority is not exercised directly, however.The daytoday business of government is delegated by the people to public officials, both elected and appointed.The power of public officials is limited.Their public actions must conform to the Constitution and to the laws made in accord with the Constitution.Elected officials must stand for reelection at periodic intervals, when their record is subject to intensive public scrutiny.Appointed officials serve at the pleasure of the person or authority who appointed them, and may be removed when their performance is unsatisfactory.The exception to this is the lifetime appointment by the President of Justices of the Supreme Court and other federal judges.Most commonly, the American people express their will through the ballot box.The Constitution, however, does make provision for the removal of a public official from office, in cases of extreme misconduct or malfeasance, by the process of impeachment.Article Ⅱ, Section 4 reads: “The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” In such cases, the House of Representatives must vote a bill of impeachment.The public official is then tried in the Senate, with the Chief Justice of the United States presiding at the trial.Impeachment is considered a drastic measure in the United States.In the past 200 years, only 13 U.S.officials have been impeached: nine judges, an Associate Justice of the Supreme Court, a Secretary of War, a Senator, and a President, Andrew Johnson.(In the case of another President, Richard Nixon, although the House Judiciary Committee recommended impeachment the President resigned before a House vote was taken.)Out of the thirteen cases, only four judges have been convicted and removed from office.State officials are similarly subject to impeachment by the legislatures of their respective states.In addition to setting forth general political ideas, the Constitution provides the blueprint for the governmental system.The three major articles describe the three branches of the national government--legislative, executive and judicial--each with specific duties and responsibilities.Subjects on which the legislative branch can make laws are set out in considerable detail, although over the years judicial decisions have expanded the scope of congressional activity.The powers and duties of the President, as head of the executive branch, are described.A system of federal courts is outlined, and its relationship to other branches of government is set forth.Part Two： The Principles of Government

Although the Constitution has changed in many aspects since it was first adopted, its basic principles remain the same now as in 1789: The three main branches of government are separate and distinct from one another.The powers given to each are delicately balanced by the powers of the other two.Each branch serves as a check on potential excesses of the others.The Constitution, together with laws properly passed according to its provisions, and treaties entered into by the President and approved by the Senate, stands above all other laws, executive acts and regulations.All men are equal before the law and are equally entitled to its protection.All states are equal, and none can receive special treatment from the federal government.Within the limits of the Constitution, each state must recognize and respect the laws of the others.State governments, like the federal government, must be republican in form, with final authority resting in the people.The people have the right to change their form of government by legal means defined in the Constitution itself.Part Three: Provisions for Amendment The authors of the Constitution were keenly aware that changes would be needed from time to time if the Constitution were to endure and keep pace with the growth of the nation.They were also conscious that the process of change should not be facile, permitting illconceived and hastily passed amendments.By the same token, they wanted to assure that a minority could not block action desired by most of the people.Their solution was to devise a dual process by which the Constitution could be changed.The Congress, by a two thirds vote in each house, may initiate an amendment.Or the legislatures of two thirds of the states may ask Congress to call a national convention to discuss and draft amendments.In either case, amendments must have the approval of threefourths of the states before they enter into force.Aside from the direct process of changing the Constitution itself, the effect of its provisions may be changed by judicial interpretation.Early in the history of the republic, in the landmark case of Marbury vs.Madison,the Supreme Court established the doctrine of judicial review, which is the power of the Court to interpret acts of Congress and decide their constitutionality.The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to changing legal, political, economic and social conditions.Over the years, a series of Court decisions, on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has had the effect of altering the thrust of constitutional law, with no substantive change in the Constitution itself.Congressional legislation, passed to implement provisions of the basic law, or to adapt it to changing conditions, also broadens and, in subtle ways, changes the meaning of the Constitution.Up to a point, the rules and regulations of the myriad agencies of the federal government may have a similar effect.The acid test in both cases is whether, in the opinion of the courts, such legislation and rules are in conformity with the intent and purposes of the Constitution itself.Lesson Seven: Criminal Law 刑法

Homicide is the killing of one human being by another human being.Not all homicides are criminal, however.For instance, a person who kills another in selfdefense has committed no crime;it is justifiable homicide.The same is true of the police officer who kills a person to prevent the commission of a forcible felony, such as robbery or burglary, when the killing is a reasonably necessary preventive measure;or when the officer kills a dangerous felon in order to prevent his escape.Then, too, some killings are excusable homicides;for instance, where a person accidentally, and without gross negligence, causes the death of another individual.A killing amounts to a criminal homicide when it is done without lawful justification or excuse.Depending upon certain circumstances it may be either murder or manslaughter.In the early days of our country, and prior thereto in England, the elements of the crimes of murder and manslaughter were prescribed by court decisions.These decisions came to be known as the “common law”.Since then, in most jurisdictions murder and manslaughter have been redefined by the legislatures, either in the form of a separate statute or as a provision of a criminal code.1.Murder According to the common law, murder was the killing of a human being with “malice”, and the requirement of “malice” is still found in some presentday statutes and codes.The California Penal Code, for instance, has retained it.That code provides, as did the common law, that “...malice may be express or implied.It is express when there is manifested a deliberate intention to take away the life of a fellow creature.It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

A clear illustration of express malice is a case where one person intentionally pushes another off the side of a mountain.An example of implied malice is where a person fires a rifle at a moving passenger train, just “to scare” the persons aboard or to display skill at firing a bullet between the cars without hitting anyone.The dangerousness of the conduct would be evidence of “malice” as regards any killing that may be reasonably attributed to such conduct.It would indicate, to a California court or jury, “an abandoned and malignant heart”.The penalty for murder is punishable by death in some states;in others by prison terms extending to “l(fā)ife” or a specified number of years.(a)FelonyMurder

Another example of a satisfaction of the element of malice is a killing during the course of a felony such as robbery.Even though a robbers gun goes off accidentally, killing the robbery victim, or a bystander, or a police officer, his conduct of committing such a dangerous crime as robbery satisfies the requirement of malice so that the killing becomes punishable as murder.A similar line of reasoning has resulted in holding cofelons guilty of murder where, in the course of an exchange of shots between robbers and the police, a police officer is accidentally killed by another officer.Malice may also be attributed to a robber whose partner in the crime intentionally kills someone during the commission of the crime or the attempted escape.Malice on the part of all participants is implied from the dangerousness of the robbery itself;moreover, each robber is considered to act as an agent for the others in accomplishing their objective, including the attempt to escape.This whole issue of felonymurder stems primarily from the prosecutions interest in seeking the death penalty for such killings.In some of the states which have abolished capital punishment(Wisconsin, for example), the legislatures, out of an understandable desire to punish robbers more severely whenever a killing results, have provided that the punishment for such offenses shall be fifteen years greater than that provided for nonfatal robberies.(b)Degrees of Murder Some states have specified varying penalties for murder, depending upon the ci

rcumstances of the killing.A “willful, deliberate and premeditated” killing, such as a poisoning or a killing during the commission of a dangerous felony, may be labeled first degree murder and punishable by death or long imprisonment.Other forms of murder may be of the second degree and punishable with a lesser penalty.According to the common law, however, there were no degrees of murder.Any unlawful killing was either murder or manslaughter.2.Manslaughter Manslaughter was defined at common law as an unlawful killing of another without malice.It could be either voluntary or involuntary.Manslaughter, in contrast to murder, is usually punishable by a prison term which may range from one year to ten or fourteen years.(a)Voluntary Manslaughter An intentional killing upon “great provocation” and “in the heat of passion” constitutes the crime of voluntary manslaughter.A classic example is the killing by a husband(or wife)who unexpectedly finds his or her spouse in an act of sexual intercourse with another person, or in a situation evidencing impending or immediately concluded adulterous conduct.A killing of the paramour or of the spouse, or both, in such a circumstance would fall within the category of manslaughter because(a)the provocation was great, and(b)the killer was in the “heat of passion”.A killing of this type is treated less harshly than murder, out of consideration for the frailties of human nature.In other words, there is an understanding appreciation that the instinctive reaction of the husband(or wife)in such a situation is to kill or do other serious harm.Nevertheless, there is a feeling that such conduct should be discouraged by a criminal sanction, but one with a penalty considerably less than for the crime of murder.It is of interest to note that in such paramour killing cases the conviction rate is quite low, primarily because of the willingness of juries to accept occasionally the frequently concocted explanation that the killing was done in selfdefense;in other words, the paramour attacked the spouse, who killed his “attacker” only in order to keep from being killed himself.The result of acquittal in such cases is sometimes described in the press as an acquittal by reason of “the unwritten law”.A few states(Texas, New Mexico, and Utah)have tried to simplify the whole matter of paramour killings by legalizing such killings where the paramour is caught in the act.But in those states the privilege does not extend to the killing of the participating spouse!

In applying the test of whether an intentional killing was upon great provocation and in the heat of passion, the question is put to the jury, or to the judge in nonjury cases, as to whether the accused reacted as a “reasonable man”.Technically speaking, it is not the particular sensitivity or temper of the killer that is taken into consideration, but rather an effort is made to determine how a “reasonable man” might have acted under similar circumstances.An illustration of this is a famous English case where a sexually impotent man felt insulted by the remarks of a prostitute with whom he had tried in vain to have sexual intercourse, and he proceeded to kill her.He contended that his sensitivity over his condition should be taken into account in determining whether there was serious provocation for this reaction, but the court held that his conduct was to be judged by the standard of an ordinary, normal “reasonable man”.(b)Involuntary Manslaughter Involuntary manslaughter may be described generally as an unintentional killing resulting from gross negligence, or as a result of dangerous unlawful conduct.For example, a person who throws a heavy object from the upper stories of a building into an alley used with some frequency by pedestrians may be guilty of manslaughter if a killing results.Likewise, a motorist may commit manslanghter if he kills a child at a school crossing while travelling at an excessive speed.A number of states have created a related crime known as “reckless homicide” or “negligent homicide”, for application to killings by motorists who were driving in a reckless or grossly negligent manner.This special kind of homicide legislation was enacted because of the difficulty encountered in convicting motorists for the more revoltingly labeled offense of manslaughter(i.e., the slaughter of a man), which also carried, traditionally, a minimum penalty of one year in the penitentiary.It was thought advisable to categorize such conduct with the less revolting label of reckless or negligent homicide and also to permit the imposition of lesser penalties than the one prescribed for manslaughter.Stated another way, it is better to obtain a reasonable number of convictions carrying relatively light penalties than to get very few convictions carrying heavy penalties.The permissible range of penalties in reckless homicide or negligent homicide statutes is generally a fine up to $1,000, or incarceration other than in a penitentiary for any period up to one year, or imprisonment in a penitentiary up to five years.(Where the traffic victim of such conduct does not die, another new statutory offense may be invoked--“reckless conduct”.)

The flexibility of penalties in traffic death cases has the effect of encouraging pleas of guilty from offenders, and it results in convictions that might not be secured if a judge or jury had no choice other than a penitentiary sentence or an acquittal.3.Federal Homicide Law There is no general federal homicide law.There can be none, in fact, since constitutional authority is lacking for Congress to legislate upon the subject, except with respect to killings within a federal territory, in federal buildings or upon other federal property, or killings of federal officials or officers.Example X, without justification or excuse, shoots and kills Y in a Post Office.X has committed a federal offense of criminal homicide.Example X, a bank robber fugitive about to be apprehended by an F.B.I.agent, shoots and kills the agent.X is guilty of a federal crime of murder.4.Modern MurderManslaughter Legislation In most states the crimes of murder and manslaughter are covered in state statutes closely patterned after the common law.A trend is now under way, however, to modernize the law.The 1961 Illinois Criminal Code is a good example.In defining murder, for instance, it avoids such language as “malice” and “abandoned and malignant heart”, and uses more precise and meaningful terminology.According to the Illinois Code, a person who kills another individual without lawful excuse commits murder(a)if he intended to kill him or do great bodily harm;or(b)if, without intending to kill, it clearly appears that he must have known that his conduct probably would cause death;or(c)if death resulted from the commission of a very serious crime like robbery, burglary or rape.5.Capital Punishment For many years there has been much controversy as to whether capital punishment serves its intended purpose--a deterrent to murder.The issue is still unresolved among researchers on the subject.The capital punishment controversy has become rather academic, however, by reason of the rapid decline in executions in recent years.Although there were 199 executions in 1935, there was only one in the entire United States in 1966, two in 1967 and none in 1968.Yet in each of the latter three years over four hundred persons were under sentence of death.In addition to an increasing unwillingness to execute murderers who have been sentenced to death, a legal concept was recently developed and enunciated by the Supreme Court of the United States regarding jury selection in capital cases that will make jury imposition of the death penalty much more difficult to obtain.The Court held that prospective jurors could not be rejected solely because of conscientious scruples against the death penalty.To do so, said the Court, constitutes a deprivation of due process, because the defendant would not then be accorded a trial by a “fair and impartial jury”.Exclusion because of such beliefs alone is permissible only when the prospective juror states that he would not consider setting them aside in the particular case for which he was called for jury service.

第三篇：人大法學(xué)導(dǎo)師介紹：何家弘教授

凱程考研，為學(xué)員服務(wù)，為學(xué)生引路！

人大法學(xué)導(dǎo)師介紹：何家弘教授

一、簡(jiǎn)介

何家弘，北京人，未及成年便到“北大荒”務(wù)農(nóng)，當(dāng)過(guò)拖拉機(jī)手、司務(wù)長(zhǎng)、子弟小學(xué)教師等；“返城”后當(dāng)過(guò)建筑工人；在愛情的推動(dòng)下考取大學(xué)，隨意地選擇了法學(xué)專業(yè)，然后便一路求學(xué)，直至在美國(guó)西北大學(xué)獲得法學(xué)博士學(xué)位（SJD，1993）；現(xiàn)任中國(guó)人民大學(xué)法學(xué)院教授、證據(jù)學(xué)研究所所長(zhǎng)，享受國(guó)務(wù)院頒發(fā)的政府特殊津貼；曾經(jīng)在業(yè)余時(shí)間從事過(guò)偵查員、鑒定人、辯護(hù)律師、檢察官、仲裁員、電視臺(tái)嘉賓等工作，如中央電視臺(tái)社會(huì)與法頻道“周末論法”節(jié)目的嘉賓主持人（2005-2006）和最高人民檢察院瀆職侵權(quán)檢察廳副廳長(zhǎng)（2006-2008）；走訪過(guò)歐美亞的二十多個(gè)國(guó)家；獲得過(guò)若干獎(jiǎng)項(xiàng)，如國(guó)家級(jí)的“留學(xué)回國(guó)人員成就獎(jiǎng)”（2003）、“中國(guó)人民大學(xué)十大教學(xué)標(biāo)兵”（2005）、人民大學(xué)“公正杯”足球賽的“最佳射手獎(jiǎng)”（1992）以及級(jí)別較低的業(yè)余羽毛球比賽的金銀銅牌；業(yè)余時(shí)間撰寫了五部犯罪懸疑小說(shuō)，其中的《血之罪》于2007年被英國(guó)《衛(wèi)報(bào)》推薦為“亞洲十大犯罪小說(shuō)”，已經(jīng)出版了法文版和意大利文版，并在臺(tái)灣地區(qū)出版了中文繁體字版，將于2011年出版英文版和西班牙文版，凱程考研，為學(xué)員服務(wù)，為學(xué)生引路！

9、“刑事錯(cuò)案實(shí)證研究”，美國(guó)福特基金會(huì)項(xiàng)目（已完成）

10、“證據(jù)的審查與認(rèn)定制度研究”，國(guó)家社科基金項(xiàng)目（已完成）

五、科研成果

（一）著作類（主編或獨(dú)著）

（1）《中美檢察制度比較研究》（英文）中國(guó)檢察出版社（1995）（2）《刑事審判認(rèn)證指南》法律出版社（2002）

（3）《刑事證據(jù)制度改革研究》法律出版社（2003）（4）《刑事司法大趨勢(shì)》中國(guó)檢察出版社（2005）

（5）《中國(guó)的陪審制度向何處去》中國(guó)政法大學(xué)出版社（2006）（6）《檢察制度比較研究》中國(guó)檢察出版社（2008）

（7）《從應(yīng)然到實(shí)然——證據(jù)法學(xué)探究》中國(guó)法制出版社（2008）（8）《從相似到同一——犯罪偵查研究》中國(guó)法制出版社（2008）（9）《從它山到本土——刑事司法考究》中國(guó)法制出版社（2008）（10）《從觀察到思考——外國(guó)要案評(píng)析》中國(guó)法制出版社（2008）（11）《從通俗到深?yuàn)W——法治文化雜論》中國(guó)法制出版社（2008）（12）《證據(jù)的語(yǔ)言——法學(xué)新思維錄》公安大學(xué)出版社（2009）（13）《扭曲的靈魂——外國(guó)犯罪實(shí)證》公安大學(xué)出版社（2009）（14）《犯罪的密碼——科學(xué)探案紀(jì)實(shí)》公安大學(xué)出版社（2009）（15）《虛擬的真實(shí)——證據(jù)學(xué)講堂錄》公安大學(xué)出版社（2009）（16）《換位的視角——多媒體對(duì)話錄》公安大學(xué)出版社（2009）

（17）《證據(jù)的審查認(rèn)定規(guī)則——示例與釋義》人民法院出版社（2009）（18）《簡(jiǎn)明證據(jù)法學(xué)》（凱程考研，為學(xué)員服務(wù)，為學(xué)生引路！

（16）“證據(jù)法功能之探討”，《法商研究》2008年

第四篇：遲到的正義不是正義（模版）

遲到的正義不是正義

在我們心中什么是正義？正義是社會(huì)中的行為都應(yīng)該處于一個(gè)合理的位置，所謂善有善報(bào)，惡有惡報(bào)。我們強(qiáng)調(diào)以直報(bào)怨，其中的直就是我們的正義標(biāo)準(zhǔn)。而什么是遲到，如果放在一個(gè)時(shí)間概念上，遲到就是超過(guò)了約定的時(shí)間范圍，那同樣的，如果我們把遲到放在一個(gè)正義的衡量尺度上，那么遲到的正義就是超過(guò)了我們約定的正義范圍。既然已經(jīng)是在范圍之外了，當(dāng)然就是非正義了。我們不能因?yàn)檎f(shuō)覺得我們?cè)從愕倪t到或者是你最后赴約比不赴約要好，就否認(rèn)了你遲到的這個(gè)現(xiàn)實(shí)，遲到就是遲到。

具體來(lái)說(shuō)，我們?cè)趺磥?lái)判斷遲到的正義就是非正義呢？第一是遲到的正義已經(jīng)造成了一定的不該造成的負(fù)面結(jié)果，而這些負(fù)面結(jié)果就是非正義。遲到的正義必然與非正義相伴而行，而且這個(gè)影響無(wú)法消除就像時(shí)間無(wú)法倒流。

第二，從法律的層面來(lái)說(shuō)，我們說(shuō)遲到的正義就是非正義，當(dāng)然我們并不是說(shuō)非正義等同于不是正義，但起碼我們說(shuō)非正義一定不是正義，（法律的解釋我就不太懂了）

第三，從社會(huì)影響來(lái)說(shuō)，我們說(shuō)自由心證，遲到的正義必然使人們對(duì)正義慢慢失去原本的信念。所以我們要做的是在社會(huì)接受的范圍內(nèi)實(shí)現(xiàn)正義，而不是不斷擴(kuò)大我們社會(huì)大眾對(duì)遲到正義的容忍度，那就是社會(huì)對(duì)正義信念的喪失。

（因?yàn)檠例X都沒能好好參加大家的討論，現(xiàn)在說(shuō)話也不方便，還好腦子還可以思考，希望我的想法對(duì)大家會(huì)有所幫助。小伙伴們，請(qǐng)?jiān)弤孔婷）

第五篇：何氏前言后記

前 言

參天大樹必有其根，萬(wàn)里江河必有其源。普天之下炎黃子孫，一脈相傳。說(shuō)世系、道宗族、辨親疏，以延宗親之道。國(guó)家寫史，述朝代、記政事；地方修志，明沿革、載土風(fēng)；同一道理，家族世系不可以無(wú)考，親族齒序不可以無(wú)稽，承先人優(yōu)良之傳統(tǒng)，勵(lì)后代奮發(fā)之志氣，此為吾何氏家族修譜之初衷。一部完整的族譜可以了解吾何氏家族的歷史沿革、世系繁衍、人口變遷、居地變遷、婚姻狀況等具有重大意義。

墓志銘記載，早有先世自滕國(guó)（今山東滕州）避亂到陜西鳳翔后還扵河南杞縣。吾族家史從明朝何展遘傳至迄今五百余年，世代繁衍生息，代代相傳至今，現(xiàn)已繁衍后裔三十世。據(jù)貳零一八年在冊(cè)統(tǒng)計(jì)，吾家族總?cè)丝?42人，男性212人，女性130人。吾支系傳承七世祖何倬一門，倬公生允中，允中公生方炤、方煒、方燁，后為老三門。明清時(shí)期原住杞縣何家樓（今縣東南2公里省道S327旁），后因戰(zhàn)亂搬遷至邢口一支為長(zhǎng)門；寺村店一支為二門；孟莊一支為三門；邢口支系戶不興，至今已無(wú)傳人。數(shù)百年來(lái)，先人曾幾建宗祠，數(shù)修族譜，后因兵燹和洪水之災(zāi)，宗廟被毀，族譜也在文革時(shí)期燒毀，至今終無(wú)留存。因此族譜中清朝年間十一世至二十世字輩缺失，十代人無(wú)從考證，實(shí)為吾族之遺憾。今至輩來(lái)自墓志銘和老人記憶所寫。現(xiàn)存族譜傳承老世系采用五言絕句：“展旺英聚景、立淵允方淳、XXXXX、XXXXX、乾云清見玉、國(guó)保正家聲”；續(xù)議世系采用四字成語(yǔ)：“天海洪運(yùn)、萬(wàn)春慶祥、漢鑫永盛、文武榮昌、世德延遠(yuǎn)、福壽錦長(zhǎng)”。迄今已無(wú)可用字輩，再續(xù)家譜已迫在眉睫，這是吾何氏家族之共識(shí)。二零零九年玉珍、玉林等人前往寺村店、開封共商續(xù)譜事宜。在無(wú)家譜考查的情況下，要收集大量資料，其中有很大一部分人已不在人世，資料收集全憑在世親人回憶記敘，修譜之難可想而知。幾位長(zhǎng)輩皆年過(guò)七旬，為了收集完整資料，他們不畏艱辛，不計(jì)個(gè)人花費(fèi)，遍訪家門。由于時(shí)間跨度大，涉及人員眾多、資料繁雜、整理編撰、電腦排版，工程之繁、任務(wù)之重，非參入者難以想象。在此向他們深表敬意！在修譜過(guò)程中，何氏各支大力配合，并積極捐款給予支持，在此深表感謝！

修譜大事上可告慰祖先在天之靈，下可使子孫后代有尋根之本。此次修譜在玉珍、玉林、玉友原有基礎(chǔ)上補(bǔ)敘、補(bǔ)遺、補(bǔ)新，采用四世一表編寫。在整理族譜中吾倍感修譜責(zé)任之重大，吾既怕寫譜把無(wú)關(guān)內(nèi)容牽強(qiáng)附會(huì)進(jìn)去、把家史寫得云里來(lái)霧里去而使后人一片迷茫，又怕相關(guān)家史的文獻(xiàn)資料搜集得不夠，只言片語(yǔ)云云毫無(wú)修譜的價(jià)值及意義。所以，在撰編過(guò)程中，吾把與本族相關(guān)的歷史文化、祖上口傳相近的文史資料、傳說(shuō)和墓志銘選擇性整理于家譜中，為后人考證和探究族源家史提供研究線索及方向。其他幾位先祖葬于何處？其后人是否還在杞縣生活？缺失的十代字輩能否找齊？這些疑問(wèn)一直困擾著吾。面對(duì)如此之疑問(wèn)，吾只能提供些資料、文圖，讓族人、后人共同探究、尋根破解先祖家史謎團(tuán)，把祖德家風(fēng)發(fā)揚(yáng)光大，是為修譜的目的及意義。

此次修譜的特色有四：

一、新譜作為家族政治、經(jīng)濟(jì)、文化等方面的史冊(cè)，不帶神秘色彩，僅使子孫后代了解先世。

二、時(shí)代進(jìn)步，遵循男女平等，妻子入譜不再用“氏”稱，以法定名字載入族譜，將有史可考之女性均列入世系表，有建樹者均上名人傳。

三、鑒于家族成員多供職于國(guó)家機(jī)關(guān)，散居于各地，故新譜印刷每戶一本，以便了解家族淵源，共享先人之蔭澤。由于續(xù)譜困難重重，加之當(dāng)時(shí)交通不便、信息交流不暢，事出有因，開封何保成一門自愿不續(xù)；寺村店何重一門失去聯(lián)系按照原譜記錄在冊(cè)。

此次修譜歷盡艱辛，終成此譜，實(shí)感欣慰。愿先祖神靈庇佑：吾何氏家族安居樂業(yè)，興旺發(fā)達(dá)，人才輩出！此書凝聚何氏家族幾輩人之心血，也必將成為后續(xù)家譜第一手珍貴資料。為尋根問(wèn)祖，繼往開來(lái)，望持譜之人妥善保管，并鄭重囑托后輩代代相傳，使何氏族門親情永續(xù)。

時(shí)間過(guò)長(zhǎng)，會(huì)使很多信息遺忘，造成續(xù)譜困難。不明己之祖宗是誰(shuí)，不知己之何來(lái)，不免上愧對(duì)列祖列宗，下貽笑于子孫后輩。何氏有責(zé)任心之人士，都要把續(xù)寫族譜看作己之責(zé)任代代相傳，方能使之成為增強(qiáng)吾何氏家族凝聚力的紐帶之一。望后裔秉承長(zhǎng)者敬重修譜事宜，以尊祖、敬祖、睦族為宗旨進(jìn)行自我約束，堅(jiān)持倫理道德和優(yōu)良傳統(tǒng)，每二十年修譜一次，不得中斷，以通俗易懂的語(yǔ)言將吾何氏家族的血緣關(guān)系和整體狀況務(wù)求十分清晰地記載到族譜中。

后記

時(shí)值二零壹叁年二月，予歸家探親，與族內(nèi)長(zhǎng)輩聚談，頓感家譜不敘，不辨一族之血脈，不知九族之遠(yuǎn)近，不惟祖功宗德無(wú)由以彰，竊恐后之子孫支繁派廣，世遠(yuǎn)年湮，而視親支為途人，以近族為陌路者矣。故急乎將過(guò)去家譜之底稿拿出，邊修邊公諸于族人面，以求留世。

何氏族譜不傳久矣，先祖并無(wú)今之族譜。明萬(wàn)歷先祖牌坊于賈家洼，牌位奉杞縣何氏宗祠，早經(jīng)兵燹，后經(jīng)文革，悉數(shù)焚之一舉，至此，前人之昭穆不可考，后人之親疏不可明，先祖之靈位絕。后裔雖孝，祭祀無(wú)門焉！而人世，繁衍生息，倏忽數(shù)十載，世事如云煙過(guò)眼，不可記者多矣。上溯數(shù)輩，已不知沿襲，數(shù)代之后，將不明乎其之祖父者多矣。因此，眾人皆倡編修家譜。由衷于此事者，少也。對(duì)先人諸多大事，非一人可為也。然文革期存留碑文，然可睹也，余感欣慰之至。

余等為尋訪吾之祖，屢奔異地、尋根問(wèn)祖、訪乎眾鄰、研討碑文、查閱古籍，方得此譜。余不敢假托以失真，亦不敢借重以矜美，僅以祖宗實(shí)跡纂輯成冊(cè)，以昭倫序，以傳后世而已。

吾族自先祖展遘以來(lái)，垂五百余年，茲史不可謂不久。其間人物事跡大多淹沒無(wú)聞矣。然其子孫有據(jù)可查，繁衍生息有史可證。今殘存之文獻(xiàn)即碑記殘篇、新老縣志等，重要者是吾族老人所述矣。上推至先祖何展遘，其中有名字者不知其生卒年份，有生卒年份者不知其生平事跡。另受時(shí)代之束縛，男尊女卑，妣來(lái)自何地，女適何方，皆無(wú)稽可考；欲全考而知之，難哉！

此番修譜，暇通族人，團(tuán)結(jié)一致，群策群力，同舟共濟(jì)，歷時(shí)三載，大功告成。雖未精細(xì)，然不負(fù)眾望，世明支清，如愿以償。

撫紙嘆息，感慨良多。吾才學(xué)既淺，又兼之以寡聞，則斯編之陋，可以想見矣。唯望族人不棄，吾則知足矣。至于其盡善美者，則有待后來(lái)之賢者也。

參考資料：《墓志銘》、《杞縣志》、《河南通志》、《四川通志》、《猗氏縣志》、《蒲州府志》、《山西通志》、《德平縣志》、《山東通志》、《明神宗實(shí)錄》、《大明金榜錄》、《史匯》、《大明會(huì)典》、《皇明大事記》、《明清歷科進(jìn)士題名錄》、《萬(wàn)曆疏鈔》、《皇明進(jìn)士登科考》、《明代傳記叢刊》、《國(guó)朝列卿紀(jì)》、《宣大山西三鎮(zhèn)圖說(shuō)》、《中華何氏源流大典》。