The Basis Of Ultimate Facts

In the area of civil procedure, the theory of civil decision is undoubtedly of the greatest consequence in that not only the object of litigation, but also burden of proof and res judicata all contribute to the ultimate proposition——civil decision. Now in China there have been an immense number of books about those important theories above. However, we still do not make the relations between them clear. As a start point, through concentrating on the academic history since the nineteenth century, I decide to use the concept of ultimate fact for reference which is drawn from the departure of law and fact——the substantial law and the procedure law in respect that it reveals the constructs of civil law system and common law system. In detail, it means the judge applies the abstract legal requirements to the concrete facts, which is so called"syllogism of decision". Without reference to the categories of legal system, the doctrine of"no trial without compliant"is widely applied, which is also be reflected in a famous proverb"no pleadings, no decisions". To sum up, any action begins with a petition. Nowadays, in principle the plaintiff is required to file a written petition with the exception of an oral one on scarce occasions. Accordingly, the defendant will respond with a bill of defense. In other words, a petition means the plaintiff has gone to court with a desire for decision. Then the court will determine the scope of hearing, denoting its activity is limited to the items brought forward. For this reason, if the plaintiff has missed the chance to allege some facts, he or she will have to shoulder the risk caused by his fault, which for the court is called burden of claims. In common law countries, the facts for attack and recovery missing in the stage of allegation are prohibited to show in court, as allegation and cognizance are distinguished strictly in those countries. Although it is not identified so rigidly in civil law system, it also has a trend to differentiate them for the purpose of avoiding delay and pursuing promptness and effectiveness. Of course, missing some facts may not be bound to"invalidation". At this moment, the party will still have the opportunity to bring forward the forgotten facts while the court has the power to reject his or her allegation. So to some extent, the petition in civil law system plays a function of centralizing the disputed points between the parties. That is to say, the plaintiff must record the requisite items in his or her petition, otherwise he or she may be ordered to supplement and correct and even rejected. After receiving the petition from the plaintiff, the court should service it to the defendant promptly along with informing him or her of the accurate date of oral debate for the first time. On that day, there exist two possibilities. For one thing, if the defendant admits the claims of the plaintiff, the court can decide directly, meanwhile which proves the significance of confirming the scope and force of confession. For another, if the defendant dissents, then the judge must examine the evidences filed by the two parties. So whether it is necessary to sort out the disputed points and allegations totally depends on the court,view about the complication of the case. When the judge considers time is ripen and there is no need of continuing hearing after several times of oral debates, then he can admit the truth and apply the law in light of the standard of proof——conscience and logos.The judge can make a decision after he or she has taken advantage of the standard of proof, which means he or she will in favor of or is against the plaintiff,claims. However, there is no absolute thing in the world. Maybe the judge still cannot tell right from wrong after all actions above, which will enforce him or her to decide based upon fiction facts, which is just one application of"burden of proof". Furthermore, at this moment he or she has no choice because he or she has no right of refusing to make a decision, which is forbidden by law.As a legal maxim in the common law"you give me facts in return of law from me", by the judge having confirmed the right facts, the next step which should be taken be he or she is to apply the law to the action. In this process of connecting the requirements of provisions to the confirmed facts, construing the law is inevitable. On account of this, the theory of ultimate fact becomes an indispensable component of civil procedure. Again there is a need of transforming the static right system——civil substantial law into the dynamic criterion for decision.Generally speaking, no matter how the judge confirms the facts and applies the law, written decision is necessary among which the most important is judgment. And what,more, the skill of writing judgment is what a judge must master freely and proficiently.It is universally known that no party, lawyer or judge has the capacity to control the whole action solely. Thus a judge must master the requisite theories and skills needed by the whole process of action which is composed of examination of the petition and the bill of defense, the confirmation of facts, the application of law and the writing of judgment. Thus ultimate fact must become the mutual language for the two parties in order to make the trial more effective meanwhile it must step into the scope of compulsory curriculum in law school.