法律英语每日一词5-Defense

Defense  n.

释义及词组节选

1）  A defendant's stated reason why the plaintiff or prosecutor has no valid case;esp., a defendant's answer, denial, or plea  答辩理由·

指民事诉讼中被告对原告起诉状中的主张和请求，或者刑事诉讼中被告人对控诉方的指控所做的否认、反驳，以及支持被告人反驳主张的理由、证据等。

affirmative defense   肯定性答辩    =plea in avoidance; plea in justification  Cf. negative defense

A defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true.

Examples of affirmative defenses are duress ( in a civil case) and insanity and self-defense (in a criminal case).

指被告并不否认原告所主张之事实的真实性，而是提出其他的理由来说明为什么自己不应承担责任的答辩。

这些事由包括和解和清偿（accord and satisfaction), 时效，胁迫等。在刑事诉讼中， 构成肯定性答辩的事由包括精神失常、醉酒、自卫等。

capacity defense   能力欠缺抗辩

A defense based on the defendant's inability  to be held accountable for an illegal act or the plaintiff's inability to prosecute a lawsuit (as when the plaintiff was a corporation, but has lost its corporate charter).

刑事责任能力欠缺辩护指欠缺可能构成诉讼的基本能力。

defense of habitation  居住防卫权    =defense of premises

The defense that conduct constituting a criminal offense is justifies if an aggressor unjustifiably threatens the defendant's place of abode or premises and the defendant engages in conduct that is (1)harmful to the aggressor, (2) sufficient to protect that place of abode or premises, and (3) reasonable in relation to the harm threatened.

指刑事法律中以无力保护个人住宅的权利。可作为刑事案件中的辩护理由。

dilatory defense   延诉抗辩

A defense that temporary obstructs or delays a lawsuit but does not address the merits.

衡平法诉讼中当事人所做的旨在暂时拖延诉讼而不涉及案件实体问题的答辩。

equitable defense  衡平法上的抗辩

A defense formerly available only in a court of equity but now maintainable in a court of law.

Examples include mistake, fraud, illegality, failure of consideration, laches, estoppel, and unclean hands.

exculpatory defense   无罪辩护

A defense that, if believed, would exonerate a defendant ( in a trial) or potential defendant ( before a grand jury) of all criminal liability. 

issuable defense  涉及实质性问题的答辩

Common-law pleading. A plea on the merits setting forth a legal defense.  Cf. issuable plea

,指就案件的实体问题提出合法的答辩理由的答辩

peremptory defense  绝对答辩

A defense that questions the plaintiff's legal right to sue or contends that the right to sue has been extinguished.

指否认原告有诉权的答辩。

public-authority defense  公共权力的抗辩    = entrapment-by-estoppel defense

A criminal defendant's position that a government official, such as a police officer, led him or her to believe, reasonably, that the conduct charged as illegal was authorized.

2)   A defendant's method and strategy in opposing the plaintiff or the prosecution; a doctrine giving rise to such a method or strategy < the lawyer advised her client to adopt a passive defense and to avoid taking the witness stand>.

3)  One or more defendants in trial, as well as their counsel < the defense rests.>

4)  Commercial law. A basis for avoiding liability on a negotiable instrument < the drawer asserted a real defense against the holder in due course>.

personal defense  属人抗辩     =limited defense

An ordinary defense in a contract action - such as failure of consideration or nonperformance of a condition - that the maker or drawer of a negotiable instrument is precluded from raising against a person who has the rights  of a holder in due course.

合同之诉中的一种普通抗辩，诸如未给付对价或未履行合同规定的条件。但在票据关系中，票据的出票人不得对正当持票人提出该种抗辩。此外，对正当拥有财产的受让人亦不得适用属人抗辩。

5) measures taken by a country or individual to protect against an attack.

6)  A country's military establishment.

(来源：Black's Law Dictionary, 《元照英美法词典》，《英汉法律用语词典》）