Litigation Epistemology

This dissertation focuses on the cognition of fact-finder toward the case and-points out the following characteristics of the judicial cognition: as one kind of knowledge, it is historical knowledge against the cognitive background of particular society. So it inevitably contains some element of fallibility. fis a special form of knowledge, however, judicial knowledge expresses itself as an institutionalized being, that is, cognition regulated by law. fis a result, the legal institution not only justifies the cognitive achievement as adjudicating grounds, but the fallibility of the cognitive achievement will increasingly diminish with the development of the cognitive ability of human being and the development of legal institutions.This dissertation falls into five chapters:Chapter I : fin Outline of Judicial CognitionThis chapter defines the judicial cognition from three perspectives: what's litigation, who is the subject of cognition and what's the object of cognition. 'Then the relation between judicial cognition and judicial proof is clarified.Chapter II: Judicial Cognition: Vnder the Social Cognitive (BackgroundThis chapter deals with the cognitive dimension of judicial cognition, fis one kind of knowledge, judicial knowledge is one under the cognitive background of particular society. Judicial cognition bears the characteristics of historical attribute, social attribute and practical reasoning. Though mode of thinking and cognitive ability, the social cognitive background decides the actual scope of the means of judicial cognition, i.e. evidence.Chapter III: Judicial Cognition: (Regulated by lawfit the aid of the subject - means - object cognitive structure, this chapter analyses the primary elements -fact-finder, evidence and the case, as well as their relations between them.Chapter IV: The (process of Judicial Cognition: Mechanism of ThinkingThis chapter observes the thinking process of the fact-finder. Judicial cognition is a kind of historical cognition regulated by law. fit the level of cognition, judicial cognition is mainly embodied as the thinking process by which fact-finder re-formulates the case. In the history of litigation, system of legal evidence makes afar cry from that of free evaluation. The basic thinking mode of system of free evaluation is "to infer unknown facts from known facts on the grounds of empiricist knowledge". In modern society, almost every country has established or accepted the legislative mode of free evaluation and tried to eliminate the inherent danger of misuse or abuse of fact-finder through certain institutions.Chapter V : The Achievement of Judicial Cognition: the fact as adjudicating groundfirstly, this chapter studies the nature of the fact as adjudicating ground: at the cognitive dimension, the fact is the knowledge that the fact-finder believes it is true; at the legal dimension, the fact is one the law regarded as true. The relation between the fact as adjudicating ground and objective truth finds expression in two aspects: on one hand, when it comes to the possibility, we should admit that the fact as adjudicating ground is able to be consistent with objective truth; onthe other hand, -when it comes to the actuality, it should be seen that not all the facts as adjudicating grounds are consistent with objective truth. On the actual level, the faHiBility of cognition destined that the fact necessarily contains the possiBidty of deviating from objective truth. 'With the enhance of the cognitive ability of human Being and the development of CegaC institution, the possibility of error is increasingly diminished, but it cannot be eliminated totally. (Because of the special perspective of outsider of the fact-finder, although objective truth is a will-Be purpose, it cannot Become a particular adjudicating standard.