Judicial Notice

In recent years, people who are working in the academics and the jurisdictions are researching all kinds of evidence rules in order to establish a system of evidence rules. Judicial Notice has been highlighting with wide social concerns as one of traditional evidence rules in common law due to its several values. However, the research in this field in China is almost vacant because of the material not easily accessible. Under this situation, analyzing and studying the advanced theories and experiences abroad concerning legislation and legislative administration, and probing the mechanism of their judicial notice systems, are endowed with the great value in theory and practice. This is the reason that this dissertation is studying the procedures of judicial notice in England and the United States and tying to gain some beneficial insights for the perfection of our evidence rules system.The dissertation divided into seven chapters. Chapters One to six are discussing theories, legal and practice of judicial notice in England and the U.S. Chapters seven is providing several suggestions for applying the judicial notice in our country.Chapter one makes the definition and the origin of the term. In the common law, the definition of judicial notice seemed having the character of diversity other than uniformity. However, we will find that there are several fundamental factors that is uniform no matter what is the definition of judicial notice, that is, judicial notice is a authority of the court, there are some restrictions placed on the objects of judicial notice, and, as one of the direct results of judicial notice, the party releases, relatively or conclusively, from the bourdon of proof. To avoid the confusion, the author contrasts judicial notice with admission, presumption, ect. The maxim that what is know need not be proved, may be traced far back in the civil and the canon law. The author also illustrates a series of classical cases in the early practice according to chronology and introduces the conditions of theories about judicial notice in the early period.Chapter two is related to the rationale of judicial notice. As the groundwork for a consideration of the nature and function of judicial notice several important premises must be observed firstly. And we found that there are some common rocks and policies about judicial notice facts and laws: first, the judge is charged with the duty of knowing the law and had knowledge what everyone knows, if he didn' t, he must acquire them. This capacity to have and acquire these knowledge is imperative for a judge; second, courts are agencies of society for the adjustment of disputes between litigants, and the judges also are responsible for the uniform of the law and to maintain any decision contrary to what is accepted as indisputable facts in that society cannot be justified.Chapter three is stating one of the judicial notice objects-facts. The author put great emphasis on this chapter as a key part of the dissertation, because facts are the most difficult in the judicial notice field. The facts which be taken by the judge as judicial notice should be the matters of fact which are of common knowledge from accuracy sources, or are of official records. That is, judicially noticed fact must be one either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. The author introduces the concept and the difference of adjudicative' facts and legislative facts in detail, and to discuss the general tests of two kinds of facts.Chapter four is another key part of the dissertation, discussing the second object of judicial notice-laws. In common law system, just as said, a judge has a duty to take charge with domestic law, especially public law. Thus in common law system' s traditional opinion, domestic public law and common law should be judicial noticed. But, foreign law should be proved as facts and not subject to the judicial notice. Generally, the courts of the U.S. refused to take judicial notice of the laws of other states jurisdictions because every state is an independent " country" . But now, most of states adopted that courts should also judicial notice of the law of other jurisdictions.Chapter five is focusing on the procedure of judicial notice. According to the scope of the authorities of the courts, the procedure of judicial notice can be begun with compulsory or discretionary without request. However, if one of parties requests and furnishes the judge necessary information to enable him properly to comply with the request, the judge shall notice the matter. The parties also have been afforded reasonable opportunity to hearing and to present to the judge information to determine the propriety of judicial notice and the tenor of matter notices. In jury' s cases, the judge shall instruct the trier of the facts to accept as a fact the matter so notice or not. Now, as in the U.S., in a civil action, the court shall instruct the jury to accept as conclusive any fact judicially noticed, but in a criminal case, some agreed that it may, but is not required to, accept as conclusive, but some considered that there is no reasonable reason to deal with one topic differently. The time of taking notice is below this chapter too. Judicial notice may be taken at any stage of the proceeding, in concluding on appeal. The appellate tribunal is not concluded by the ruling of the trial court would seem clear, although there are some limits to the appellate courts.Chapter six is the nature, effects and values of the judicial notice. There are three different opinions about the nature of the doctrine. One is the informality of proof; second is the exercise of the function of judicature; third is a special kind of presumption. Because the effect of the doctrine is closely related to the nature, we will find two effects: conclusive and not conclusive. The legislations widely accepted the former, at least in the civil cases. The values of judicial notice are the reason that the doctrine exists. The most received attention is the economy efficiency through avoiding unnecessary proof.The last chapter is to state that how to set up a reasonably system of judicial notice in China. The first step of analysis is concerning legislations and practice at present, which can prove that it is necessity and feasibility to establish judicial notice in China. And then, the author takes suggestions how to establish a reasonably judicial notice system. Proposed: the rule governs judicial notice of laws and facts; a judicially noticed fact must be one not subject to reasonable dispute, at least at the beginning to apply judicial notice in China; facts shall be noticed only if they are generally known within the territorial jurisdiction of the court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned; judicial notice can be taken by a court in discretionary or mandatory, and each party has a reasonable opportunity to be heard as to the propriety of taking judicial notice of a matter or to the tenor of the matter to be noticed and to supply the court with the necessary information; judicial notice may be taken at any stage of the proceeding; finally, the facts be judicial noticed shall be accepted as conclusive.