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Objectivity Of Judicial Adjudication And Judge's Initiative On Subjectivity: Focus On Fact

Posted on:2004-04-02Degree:MasterType:Thesis
Country:ChinaCandidate:Y H LiFull Text:PDF
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Every lawsuit proceeds in order to find out the matter of fact. Obviously, in Chinese legal culture detection of fact through proceedings is sole responsibility of Power. On the other hand, thinking pattern of realism confines the understanding of fact in things perceptible or relations presented by materials. Because of these two factors, in the traditional proceedings two parties' acts on fact-detection receive a great deal of limits, meanwhile the judge has play the role of investigator in certain degree to find out what on earth had happened in society.An issue heatedly debated around the academic sphere is the one that what can we find out through proceedings. However broad is the gap between Objective truth and legal truth, they share a common standpoint, the case ruled embraces substantial contents which really took place in society. And those empirical things are beyond every observer, including the judge. It is unrealistic for a neutral judge that what his sensory organs cannot experience. If the conflicts or disputes in case are previously set, we can point out critically that the socially empirical contents in proceedings are mere theoretical hypothesis, and it can do nothing but integrate multiple data. But if it is viewed as a practical principle, the problems brought about are not endless quarrels, but suspending cases or cases of injustice like Du Pei-wu.Since the judge is ignorant of the disputes and conflicts in the past. In order to persuade the judge to make a favorable verdict, two parties must present material evidence or witnesses in the court. For mere verbal statements don't work. But what can these substantial evidence express is only their physical existence. The relationship between materials and the facts claimed has to be clarified through words.Rigorously, evidence is the statement giving meaning to materials. It is safe to say, though there exists a closely correspondence between them, external tings belonging to physical world still differ from those of conceptual existence.Strictly speaking, the judge constructs the fact with statements of two parties. So judge's awareness takes a form of rational judgment. Moreover, the judge is obliged to exam, in accordance with self-evident pure logic, whether the concept is comprehensive or whether the deduction is right. And now, the certainty of empirical contents of a case seems not as significant as the integral fact constructed by multiple statements. Surely, those statements belong to subjective field. But it doesn't mean statements have nothing to do with universal certainty. When Psychology separates itself from Philosophy, the psychological phenomenon, stimulation-reflection, becomes independent of philosophy realm, which concerns about norms of true statement. As a result, fact is not based on physiologic-psychological idea, but on the self-evident concept.The science of law is a branch of learning about right, and its object is human's behavior. Corresponding with numerous empirical behaviors, what is displayed in norm is the intrinsic structure of conduct. That is to say, the science of law is a part of essence disciplines, which of course abide by the rules of pure logic. And a judge is an expert on this essence discipline. Reasonably, judges always inspect that real object in the view of essence structure.Not passively waiting for the evidence of material, on the contrary a judge uses legal ration to choose evidence, to command proceedings, to control the scope of debate.The procedure is designed according to the central task, fact finding. The understanding of fact directly or indirectly confines the pattern of procedure. If there would be deep reform on judicial system, it should start from reorientation of fact and its objectivity.
Keywords/Search Tags:fair and impartial trial, objectivity of fact, initiative of subjectivity
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