On The Relation Between Procedure Fact And Dispute Fact

The question on fact is one of the basic questions in the field of evidence research. The answer to the question of fact decides on the primary situation of the evidence theory and the evidence law and affects their trends in the future. The relation of procedure fact and dispute fact is the core of this dissertation. The dissertation cuts in the research of fact through the pursuit of the relation of the two facts, explores the answer for the relation of procedure fact and dispute fact in the development skeleton of evidence thoughts, and based on these, tries to provide the standpoint to the relation and the choice of way for the future research.This dissertation consists of five parts.The first part is the two facts inside and outside the procedure space. By means of the conception of procedure space, this part explains the dispute fact and the procedure fact, and then, puts forward the core question of this dissertation: the relation of procedure fact and dispute fact. The procedure shapes the abstract procedure space. And the procedure space compares procedure fact and dispute fact inside and outside it. So, this part begins with the explanation of procedure space, consisting of the explication and the establishment of procedure space and the closeness and the openness of procedure space. Then, this part enumerates all kinds of the concepts about fact, especially the concept in jurisprudence. And explaining and defining the dispute fact and the procedure fact in the title of the dissertation. At last, it raises briefly the core of this paper: the relation of procedure fact and dispute fact.The study on evidence is developed in Anglo-American legal system. The research of evidence in civil law system is immerged in the research on procedure and hasn't a sound systematic theory. Evidence study in our country refers more to the theory of Anglo-American legal system. So, the second and the third part explore the answer of fact relation based on the running through the Anglo-American evidence study and masters'thought in the study. The second part is the viewpoint of the traditional evidence school. It deals with the definition, the representative and main thought of the traditional evidence school, and extracting the answer of the relation between procedure fact and dispute fact from all the thought. Traditional evidence school takes over the concept of the rationalist tradition of evidence scholarship by Prof. William Twining, and makes some adjustments in the name and the substance. The traditional evidence school is the core school in Anglo-American evidence research from 1750s in which The Law of Evidence by Gilbert was published till 1960s in which the Anglo-American evidence research reaches the golden age. The research of traditional evidence school concentrates on admissibility of evidence and contributes to the construction of the evidentiary theory system, cases and legislation splendidly. Through all kinds of specific ideas of the traditional evidence school, we can extract the opinion of fact relation. In general, the researchers in the traditional evidence school think that procedure fact should try to be close to dispute fact, which means that the just judicial decisions should be based on finding dispute fact. To be specific, the traditional evidence school believes in atomistic model of forming procedure fact; based on English empiricism, it requires that adjudicative fact reach high probability, even though can't reach the absolutely convinced dispute fact; and it emphasizes that finding dispute fact is not the sole value in procedure, sometimes the value need to make way to other values. Given all that, the traditional evidence school insists that procedure fact should be close to dispute fact but not the same as the dispute fact.The third part is the viewpoint of the new evidence school. It discusses the definition, main branches and research ways of the new evidence school, and explores the answer for the relation between procedure fact and dispute fact from the thought of the new evidence school. The new evidence school is the general term of all kinds of the new ideas about evidence during 1960s and 1970s. It is different from the traditional evidence school, or improving the theory of the traditional evidence school. The new evidence school comes from the concept of the new evidence scholarship by Prof. Richard Lempert. Different from the traditional evidence school, the new evidence school hasn't common presupposition, research direction and content. It is the gather of the fragments about the various kinds of new research on evidence. The new evidence school starts something new and original research on evidence getting help from mathematical analysis, forensic science, history visual angle, skepticism and etc. From the thought of the new evidence school, we can extract the answer for the fact relation. That is procedure fact is far from dispute fact and the production of procedure fact is diversification. The researchers in the new evidence school suspect the ability of procedure fact reproducing dispute fact, even some activists of them consider that dispute fact cannot be reproduced in the procedure and procedure fact bears no relation to dispute fact. In the production of procedure fact, more scholars advocate holistic model, and the emphasis of research transfers from the admissibility of evidence to the ways and the process of proof.The fourth part is the fact research in our evidence theory. It introduces the debate between objective truth and legal truth from the end of 1990s to the beginning of the 21st century, and the new ways to analyze the fact in academia. Legal truth insists in the criminal proof public security organs, procuratorial organs and people's courts affirm case facts by evidences should accord the criminal substantive law and adjective law, and should reach truth in the view of law. Objective truth considers the dialectical materialist theory of knowledge is the theoretical basis of the criminal evidential institution of our country, and only subjective cognition of judicial official corresponding with case fact we can tell the standard of proof is satisfied and objective truth is achieved. And amended objective truth also emphasizes to comply with procedure law and evidence rule. Since introducing foreign theories and assimilating knowledge and theories from other fields, our evidence research on fact appear some new tendencies, such as analysis with linguistics, semeiology, and informatics, explanation according to new history, the theory of acceptability, postmodern thoughts and so on. In the view of macroscopy, our orbit of recognition on fact relation is the same as the way of Anglo-American evidence research, which means people doubt the ability of finding dispute fact gradually.The fifth part is the two basic points of the relation between procedure fact and dispute fact. Based on analysis above, this part tries to give the standpoint about fact relation and to find the focal point in the future research. In the opinion of this paper, the relation between procedure fact and dispute fact has two basic points at least. One is that we should inherit the basic opinion of the traditional evidence school and insist that the reproduction of dispute fact is the core of procedure fact. In face of adjective upmost and the tendency of discarding substantive justice only for formal justice, we need expound and emphasize the necessity and the feasibility of the reproducing dispute fact again. And according with the idea of reproducing dispute fact, we also need to analyses existent and intending institutions prudently and improve the quality of judicial official actively. The other is that we should pay attention to the characteristics of procedure fact and the fact relation in different procedure and make corresponding adjustments of evidence research in the traditional evidence school. Taking compromise justice and traditional justice, the procedure of investigation and trial for examples, this part explains the specific difference of the relation between procedure fact and dispute fact under different procedure. And according with the discrepancy, this part proposes that we should make new adjustments to the traditional evidence research, such as widening the traditional connotation of the evidence rule and converting the traditional view of the evidence research.