On The Construction Of The Legal Facts

The issue of facts is a long-lasting problem in judicial field and is also one of the most difficult to resolve. There are a lot of barriers and difficulties on the way to confirming the facts because many complex relationships such as demanding for the interests of the clients and the pursuing for the basic value of justice intertwine in it.The key to resolve all these problems of legal facts is that there must be an accurate reorganization of the facts conclusion from the judicial process(which is also named the formatting process of the legal facts).Over the years, our scholars have been lacking for studying and analyzing the nature and activity regularities of judicial process in depth. We usually take the judicial process as a kind of process seeking for the truth simply and use the traditional way to finding facts theory which is based on dividing the subjection and objection as the basic model theory to study the facts problems in judicial process. Few of us will think about the initial mechanism to formatting the facts, which is just the crux that makes us messed in the confusion of the facts problem. In this article, the author researches on the characters and regularities of the judicial process and analyzes on nature of intercourse of the legal action, then she, furthering, changes our views from studying the main characters in litigation to studying the relationship of them. Moreover, the author demonstrates some basic points of constructing the legal facts, and from it, this article also tries to provide a new theoretical basis for resolving the facts problems in judicial process and an effective way to direct the judicial practice.Generally speaking, this article can be divided into two parts: the introduction and the text. There are five parts in it. Chapter one is about the definition of the legal facts and advocates constructing legal facts. Chapter two to chapter five is the analyzing and demonstrating part of this article. Chapter two mainly talks about the Epistemological bases of constructing the legal facts; chapter three discusses on Security rules Of constructing legal facts; chapter four is the Specific processes of constructing legal facts; and chapter five, it demonstrating the Effectiveness of constructing legal facts.From the specific content of these parts, Introduction mainly explains the reason to raising this subject and points out the theoretical importance and practice importance to research on this article.Chapter one is the explanation and limitation of the definition of legal facts, and it can be divided into three parts. Firstly, the author inspects the multiple meaning of the definition of"facts", and concludes that there are two kinds of meaning of facts, that is, the fact in the sense of existence and the fact in the sense of reflecting the result of existence. The latter takes the commitment of the former as the premise. So, it is the relation of Cross, coincidence, and even deviating from each other of the two. Secondly, the author has inspected the definitions that given by the academia, and then drawn a conclusion that this definition is used under the Legislative and judicial context. However, the definitions of legal facts under these two contexts are all the facts reflecting the result of existence, and they all rely on the theory of"finding facts"and analyze the drawbacks of it. Finally, the author provides the viewpoint of constructing legal facts according to the finding facts theory, and re-defining the definition of legal facts in judicial field. The legal facts here is that, in the space of statutory procedures, the main in litigation build up a picture of the facts of the case according to the established rules, it is the factual basis according to which a legal judgment is made. It has the following three features: firstly, from formatting conditions of time and space, legal facts were formed in certain procedures space; Secondly, from the rules that constraining the legal facts, it can not do without the formation of substantive rules, the rules of procedure and restrictions of the rules of evidence; Thirdly, from the main participating in legal activities that Constructing the legal facts, the legal facts are formed in the interaction of the specialized authorities and the parties in a lawsuit; Fourthly, from the performance of the legal fact, it is a kind of language spread; Fifthly, from the legal point of view of the content, it has a relative certainty; Sixthly, from Construction process of the legal facts, it is an open character.Chapter two, the author analyzes the Epistemological bases of constructing the legal facts. This chapter can be divided into three parts. Firstly the author analyzes the limitations of the Subjective awareness in litigation activities. Because of the limits of human rationality, there are various factors that limited the understanding of the main forming from the aspects of the objects, the process, the rules of evidence and procedure, and the method of understanding. Secondly, the author re-inspects the features and regularities of the judicial process, and gets that, although the litigation activity starts from the Subjective awareness, at the same time, it is also a kind of activities between the contacts of the main. The legal fact formed in the process is not the model of the so-called facts of the case; on the contrary, it is the product of the subjective construction of different main in the space of procedure. Here, there is a transition between the understanding of the subject and the object, which is a construction of the legal facts from the experience and perception of facts to the manner described for the realization. Finally, the author analyzes the distinction between the subjective awareness and the awareness of the inter-subject, against that the Academia has long been regard litigation awareness simply as the understanding of the main. And the author also points out that the inter-subjective awareness will make us get deeper and more comprehensive understanding of the features and characteristics of understanding activities, it can not only find a possible way for our understanding out of the limitation of our subjective awareness, but has great guiding significance to make clear the intrinsic mechanism of constructing the legal facts and then to set up a system terms.Chapter three, the author analyzes the security rules of constructing legal facts from the static point of view. It has two parts: Firstly, the author gives a general analysis about the Rules of Procedure and Evidence that the legal facts Construction needs to follow, and then points out that the rules of procedure provides a statutory space and steps arrangements for the construction of legal facts, and the rules of evidence will play a role of tailoring facts. In positioning the value of procedural rules, the legal fact construction should insist on the position of procedure–selfishness; from The function of the rules of evidence, it should change its emphasis from the core facts to the protection of the legal legitimacy of the construction process, from the stress of their functional entity to the comprehensive functional concerns of its procedures. Then, the author gives a detailed analysis on the rule system that smoothes the activities of constructing legal facts. This system mainly concludes the rules of cross-question rule, the relevant rules, illegal evidence exclusion rules and the rules of hearsay evidence exclusion and their derivatives rules. The rules that mentioned above are, in varying degrees, standardized the rational exchanging activity of the rational main, and they have very important value in proceedings for the protection of the legal fact construction. And they need to give special attention in our country's legislation in the future and should be established or improved respectively. Chapter four, the author analyzes a three-dimensional process of legal facts constructing activities from the dynamic point of view. It has three parts followed: firstly, it talks about the status and responsibility of the subject of the construction of legal facts—Prosecutor, the accused, the judge. And it analyzes the character they act and the possible strategy they adopt in the activities of constructing the legal facts. Secondly, the author gives a detailed description of the process of the specific legal facts Construction, this process includes three stages: Opening statements, the burden of proof and Testimony, the court debate. The main function of the beginning statement is to assist the decision-maker to understand those evidences that will be raised in the trial. The main function of Testimony is the prosecution and the defense display the evidence to support its claim and mutual testimony to the judge to make their opening statements of the legal description of the facts more comprehensive and clear. The court debate is the stage that gives the demonstration on the key point. At this stage, the prosecution and the defense integrate the ideas, evidence and the law basis of the case, in order to form a very convincing form as a whole, namely the fact in a credible legal version. Finally, it discusses how the judges determine the legal facts. Judges mainly based on the principle of free proof, in the process, the principle of evidence proved and the standard of principles constitute respectively the external constraints and inherent limitations of the free proof activities.Chapter five, the author analyzes the Effectiveness of constructing legal facts that is the issue of the legitimacy of the judicial decisions based on the legal fact. It can be divided into two parts. First of all, it is mainly about the legitimate standard of the legal facts. Judges can use various methods to prove the legitimacy of its judgments, among which, the best proof is that the legal facts basis for its decision and the actual happening in the case are exactly the same, that is, the standards of authenticity, if possible should be the first choice. However, from the previous analysis, we can see the objective facts has never been in the litigation, the facts have always been social and tracked the deep imprint of the activities of the people. In the judicial process, there will not be pre-set criteria of authenticity or the criteria of authenticity are invalid. Constructing the legal facts, it is the consensus between the main judgments that is the proper standard to judge legal facts. However, the point need to pay attention to is that the consensus here is just the result of a procedure, which is a "consensus" conclusion through the due process. Because, in the specific litigation process, there are many difficulties to reach a consensus, eventually the only way to achieve the legitimate aspirations of the consensus is the priority of due process. Secondly, the author analyzes due process protection of the specific legal facts. The author gives a comprehensive analysis of the function of the due process in guaranteeing the legitimate of legal facts through the interpretation of the meaning of the procedures and the basic requirements of procedural justice: that is, to provide independent Construction space of legal facts; to guarantee to construct a rational manner; to promote the protection of human rights in the process of facts construction; and to highlight the characteristics of democracy of constructing the legal facts.