Research On The Methods-Norms System Of Fact-Finding

Fact-finding refers to a belief cognition and jusification activity about the the propositions of consequential facts stipulated by substantive law,this cognition and justification activity is made by the fact-finder under certain legal regulation and according to the evidence and factual propositions asserted by both parties.Its internal structure is composed of several inferential chains from evidence to events,and then through the intermediate facts to the consequential facts,mainly including two contents: relevance and credibility evaluation.The basic goal of fact-finding is to discover the truth and reasonably distrute the risks of errors,and its internal value is to realize justice in the process of discovering the truth.Fact-finding is the core of the trial and even the whole litigation,and it is also the gathering place of all kinds of complicated issues through the litigation.However,neither China nor the other countries around the world have yet developed a perfect fact-finding system.Inspired by the deep interaction between “proof science” and “evidence rules” proposed by Wigmore and the theory of “evidence science in a narrow sense”,the rationality of the corresponding norms can be examined through the study of fact-finding methods,and then a mutually compatible "method-norm" system of fact-finding can be formed.The fact-finding system is based on the cognition and exploration of the “unknown space” of fact.The unknown space arised at the time of the event was happening,and rooted in the nature of our human being’s perception of things,and it may further be accumulated and expanded at every stage of broad sense litigation.Although the unknown space cannot be completely eliminated,it can be minimized by taking some institutional measures.In addition,the unknown space also owns two properties of uncertainty and ambiguity,and probabilistic reasoning and plausible reasoning can be used to deal with these two properties.On this basis,this paper attempts to establish a method system of fact-finding: in the pre-trial procedure,we can minimize the unknown space as soon as possible through a series of institutional measures,such as the guidances of evidence discovery,the procedure and rules of discovery,the sanction rules of hindering the presentation of evidence,the burden of production and the standard of evidence.At the trial stage,we can introduce the probabilistic and plausible reasoning approaches apply to the the uncertainty and ambiguity conditions separately,and then improve them according to their respective advantages and disadvantages,so as to form a set of scientific system suitable for the fact-finding at the trial.The so-called fact-finding norms refer to a set of wide sence rules that can provide sufficient epistemological and axiological justifications to make the fact-finders believe the distiputed facts,and aim to regulate and guide the processes of fact-finding.However,the norms of fact-finding are confronted with the inherent conflicts between themselves and free proof or free action of the subjects.The concept of fact-finding belong to a natural epistemological process and the law should not interfere too much has long been held by the mainstream evidence law scholars.However,as the failures of free evaluation of evidence becomes more and more prominent,the dangers of this kind of free proof system relying on empirical judgment are becoming more and more serious.Meanwhile,the common sence foundations of this free proof system are also facing the big challenges from modern science and technologies.Based on the internal perspective of the fact-finder,it can also justify the necessity and legitimacy of appropriate legal interventions in fact-finding: the fact-finder needs to take responsibilities for the assertions and decisions made by himself,and it is the responsibilities that make it necessary to regulate fact-finding.In addition,rational person should not make arbitray choices when he confront with confusions,but should use norms such as morality or law as action criterion to guide or constrain his behavior.The existence of norms provides “justification” for actions,and the higher values represented by these justifications in turn justify the norms.Therefore,Raz puts forward a three-level normative system,including suggestions,requirements and orders,which increases the degree of intervention imposed on the freedom of the subject of action step by step.According to this,we can construct a three-level fact-finding normative system of suggestion norms,requirement norms and order norms.These three kinds of fact-finding norms both exist in the pre-trial procedures and trial stage.But the contents of these norms are not necessarily reasonable,so it is necessary to examine them according to the corresponding fact-finding methods,and establish the the coherence “methods-norms” system.In China,pre-trial procedures can be further divided into detection,examination and prosecution,and pretrial conference stages.The fact-finding norms respectively corresponding to the three stages can be examined by a series of institutional measures that can minimize the unknown space,and forms the new three-level normative system in the pre-trial procedures.The trial stage mainly composed by three links: evidence production,evidence examination and evidence confirmation.And the fact-finding norms involved in each link can also be examined at the basis of improved probabilistic and plausible reasoning approaches.And then we can remodel the burden of production and its rules at the link of evidence production,the cross-examination rules,confrontation rules and the questioning guidances at the link of evidence examination,and the evaluation guidances of the credibility and inferential strength of single evidence,and the burden of persuasion and its standard(proof standard)at the link of evidence confirmation.On this basis,a new three-level normative system of fact-finding is formed.