從比較法研究談「普通法」(Common Law)研習的若干建議

Some Commentaries on the Learning of Common Law from the Comparative Law Study

比較法研究之意義，在於我國與外國法制相互比較立於共同基準，經價值判斷認為具社會效益，因此才參酌外國法例規範，增修我國法規。無論法系為何，得作為比較法研究之標的。比較法研究的前提是必須真切的從我國法制固有意義先行瞭解，適當的選擇法律辭語翻譯，才能呈現外國法規範意旨，始可能進行比較及評價。普通法系因非臺灣繼受大陸法，因此，相關普通法規範語詞如何適切翻譯其意義，本文提出若干分析建議。再者，比較法研究應是雙向的，本文建議法學英文教育應以英文教授我國法，作為推動國際比較法研究臺灣法之能量。

The study of comparative laws is used to compare with laws of different nations only if the common or similar environmental basis is found. And the foreign law will be used as reference for domestic legislation only if the regulatory purpose and related measures are benefit to our own society after proper evaluation. The condition for the comparison of foreign laws is to have a proper translation with the domestic legal terminology before carrying on the comparative study. Taiwan is a Civil Law country. The legal system and reasoning of us are dissimilar to that of Common Law. When compare with the laws of Common Law system, the suitable context of a translation to be found is essential to the success of a comparative study. So, the terms used in the Common Law is urged by this paper to be paid on more attention in translation to our legal terminologies. And some comments and suggestion are provided by this paper on some terminologies currently used by scholars for translation of some critical terms under the Common Law. Also, this paper asks for the change of English courses in our law schools by teaching the domestic laws with English rather than using the English to teach the Common Law. The paper believes this change will encourage more scholars in the international community to study Taiwan’s law through the comparative study.