Judicial Notice: Doctrine,Rules And System

Judicial notice is not only an important rule of evidence but also a special legal system thereby judges intervene the burden of proof. It means that the fact within the scope of judicial notice shall be determined by judges without production and cross-examination of relevant evidence by concerned parties. The system is valuable in that it can influence the distribution of the burden of proof, improve the litigating efficiency and economize on judicial resources. Like other rules of evidence , judicial notice originates from the evidential legislation of the Anglo-American law system and it has the tendency of theorization, systemization and codification through its development. The importance of the system is increasing and its scope is enlarging. In China, judicial notice has not been studied carefully and deeply, there are no rules of Judicial notice in legislation and the application of it is passive and at will. Such phenomena do no good to draw clear boundary between the burden of proof and direct determination of the facts by judges or solve the problem of between the low efficient administration of justice and insufficient judicial resources. Therefore, this paper systematically studies the logical basis, scope, force and procedures of judicial notice with the aim to further its theorization, perfection in legislation and normalization in administration of justice.This paper consists of six parts. In the first part, general questions on judicial notice are elaborated, including its concept, features, legal logic and its difference and relation with some other similar concepts. Firstly, the concept of judicial notice is explored. It is defined as a special judicial act wherein judges themselves can determine some facts directly or upon the application of the party in course of the adjudicating. In essence, judicial notice is neither a form of evidence nor a mode of proof. It is a judicial act of judges. From viewpoint of static analysis, judicial notice is not a judge's right, but a duty a judge shall perform. It is not the extension of the right of discretion, but the limitation of such right. From viewpoint of dynamic analysis, judicial notice is an authentication on the chain of judicial proof, But it is a special authentication. Secondly, the characteristics of judicial notice is expounded. This paper hold the view that judicial notice is characteristic of special subjects and objects, relative results, adversary process and legal procedures. The theoretical basis on which to establish the system of judicial notice is that the rules of judicial notice conform to both substantive justice and procedural due process of reason, rationale and reality of contents. This system can improve judicial efficiency and economize on judicial resource. It can take advantages of the merits of both adversary system and inquisitional system and avoid the shortcomings of them. Under jury system, it can exclude the possibility that the jury draw an absurd conclusion and it can also avoid the possibility that judges draw contradictory conclusions with administration agencies on state policies. Judicial notice is different from and in relation with presumption, facts freed of proof and admission.In the second part, the paper describes the history of and the real issues on judicial notice. Firstly, the origin and development of judicial notice is introduced. Modern rules of Judicial notice originated from Indian Evidence Code1872, which has had great impact upon legislations of many countries of Anglo-American law system and part of countries of the continental law system. And Rule 201 of Rules of Evidence of the United States is an excellent example of the codification of judicial notice . In contrast with the legislation of Anglo-American law system countries, the legislation of judicial notice of most continental law system countries is very simple. From viewpoint of comparative law, the trend of codification of the system is very apparent and the rules of judicial notice is very simple. From viewpoint of contents, the objects of judicial notice are much wider in Anglo-American law system countries than in continental law system countries. The legal effects of judicial notice are different because of different adjudicating organization. In spit e of these difference, the importance of judicial notice is increasing greatly and the scope of judicial notice is enlarging. Secondly, the paper continues to analyze the real issues of the system. The first issue is it passiveness which lies in the fact that the scope of judicial notice is not exact and this makes it difficult for judges to apply the rules; Judicial notice of legislative facts creates new rules, but these new rules are not passed by legislatures through usual legislative procedures, which in a way derogates the due process, judicial notice may be in contradiction with a certain clause of a statute or even a clause of constitution. Concretely, judicial notice may violate defendant's constitutional rights to jury trial under Anglo-American law system.. The second issue of judicial notice is the empirical thinking of judges. Judges' empirical way of thinking has given birth to two different mode of judicial notice: crime control mode and police control model. This is in contradiction with the requirement that judges shall be rational, feeling exclusive and value free when they take judicial notice. Judicial notice is a two-edged sword. If it is not limited, judicial notice may become a tool to harm justice. The method to deal with the issues is to establish some guiding principles to guild the judges' judicial notice. These principles are notice facts can not be rebutted; the principle of critical fact brake; the principle of prospectivity; and the principle of adversary inpection.The third part of this paper is concerned with objects of judicial notice. The objects of judicial notice include facts and laws. Facts include well-known facts; facts which judges known by means of their positions( administrative facts, judicial facts, adjudicated facts); facts which can be verified; Empirical rules; customs. Laws include domestic laws(constitution, statutes, administrative regulations, administrative rules, local statutes and regulations); International law(international conventions, international practices, maritime law); foreign laws. The facts known personally by judges and notarized facts do not fall within the scope of judicial notice.Part Four: Classification and legal effects of judicial notice. Based on the property of facts, judicial notice can be classified into two categories: judicial notice that shall be taken and judicial notice that may be taken. The first one can be further classified into judicial notice taken without the party's petition and judicial notice upon the parry's petition. Judicial notice without the party's petition include well-known facts, natural laws, scientific theorems, the facts known by judges by means of their positions, domestic constitution, statutes, administrative statutes and regulations, international conventions and other relevant statutes. And the second one includes well-known facts, local statutes and regulations and discretional international practices chosen by the parties. Judicial notice that may be taken includes facts that can be verified; legislative facts; empirical rules; customs; guild practices; administrative rules; foreign laws; maritime law. The legal effect of judicial notice means the consequences of judicial notice. It can be classified into legal effect upon the subject which means the legal impact and binding force upon judges, jury and parties; legal effect upon its objects, which means that taking judicial notice of the facts and laws that shall be taken is compulsory, and judges shall take notice of such facts and laws, and judges may take judicial notice of the facts and laws that may be taken; priority effect and indirect effect.Part Five: procedures of judicial notice. The purpose of the establishment of the procedures of judicial notice is to control judges' discretion and protect the party's litigious rights. Concretely, the procedures of judicial notice include institution procedure( institution by judges and institution upon the application of the party), inquiry procedure(proof procedure and explanation procedure), defense procedure(information of the party, hearing), appellant procedures.Part Six: issues on the study of judicial noticed in China. Firstly, Chinese scholars seldom studies the issue of judicial notice; there is no rule of judicial notice in Chinese legislation and judges dare not or are not willing to take judicial notice or take judicial notice at will and they depend on expert opinions. This part elaborates on this phenomena. Secondly, the causes of the status quo are a rigid reading of evidence adjudicating rules, a deep complex about for factuality and the judge's professional level. Thirdly, this paper holds the view that the establishment of the judicial system in China is necessary because of the need of improving litigious efficiency, especially in criminal justice. Fourthly, the establishment of judicial notice in China is possible in that judicial notice does not do harm to exactness of fact determination Fourthly, the establishment of judicial notice in China is possible in that judicial notice does not do harm to proof standard of exactness of fact determination; the theoretic support of the notion of the legal truth which has been gradually established; and the institutional support of lay judge system. Fifthly, theoretical development and perfection, legislative development and perfection and judicial development and perfection of judicial notice are discussed .