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On The Fact-finding In Civil Action

Posted on:2008-04-10Degree:MasterType:Thesis
Country:ChinaCandidate:S D ZhangFull Text:PDF
GTID:2166360215472674Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The fact-finding is the core question in civil action .However many people take the core concept"fact"with biased understanding .The fact has the subjectivity and the objectivity. But its subjectivity hasn't received people's attentions and researched. Because the localization of"fact"in our judicial practice is unclear, and people imbalance to the objectivity of the fact , even regards fact as the objective existence, so that many problems appear ,for example"Search facts absolutely""Goes against the procedure to search facts". The fact-finding is a legal matter, also is a realistic question. If the fact lose the practical significance and become a goal direction, which can't be obtained, some procedures may lose the safeguard .If the goal of the"fact"takes one kind of value directions to the judge for"not wrong to deviation procedure", the fact-finding lose its legal significance.The author thought that the most important question is to solute the localization of the fact. On the objectivity foundation, we need to clear the subjectivity of fact, and hereby distinguish"life fact"and"juristic fact". The relation between"juristic fact"and"legal procedure"is established on the above discrimination. Safeguarding the legal procedure is the premise to form"the legal fact. Safeguarding the procedure can make the fact-finding to"form authenticity", but we can't give up the"substantial authenticity", should manifest for judge's judicial technology in a certain degree.The article is constituted by the introduction, the main text and the conclusion constitutes.Introduction. In our country's judicial practice, fact-finding lose its stability and stateliness because that people's understanding about"fact"and the localization of fact are unclear. According to this, the article point out the importance of studying fact-finding.First chapter: Fact's connotation and philosophy foundation. The purpose of studying fact's connotation is to open out the subjectivity and the objectivity of the fact. "Fact"should be people's judgment which can be expressed by words and which is founded on the feelings coming from the things or events."Fact"is founded on object inevitably, but should have subjective and objective. The subjectivity of fact should not be neglected. The author regards"Epistemology"as the philosophy foundation of fact, and accepts the subjectivity of fact and the limitation of fact-finding, which don't influence the correctness of"fact". Fact formed in due process is accordance with relativism. We can sustain a new orientation of fact according the above.Second chapter: The way of fact-finding: Procedure."Juristic fact"is different from"life fact", not only on the subjects and objects, but also on the legal procedure through which"juristic fact"obtained. The subject of"juristic fact"is judge, and the object of"juristic fact"is evidence. Both of them are especial. The particularity of the activity enhance the status of legal procedure."Procedural Guarantee"is premise of fact-finding in trial. There are two principles of fact-finding in legal procedure. One is"Evidence-based adjudication", and the other is"Free evaluation of evidence". They ensure the correctness of fact in objective aspects and subjective aspects.Third chapter: Basic skills of judge in legal procedure. This chapter pays attention to subject factors in fact-finding."Procedural Guarantee"can get the"form authenticity"of fact-finding, but"substantial authenticity"can be promoted by judge's skills in a certain degree, like inference,explanation and so on. Under written law system, syllogism still can indicate the process of judgment, but its limitation is obviously. Judge's positive or negative manner is in next, but the legal quality and judicial skill of judge are the guarantee of"substantial authenticity".Conclusion. This part sums up the research situation of the article and the pending questions.
Keywords/Search Tags:Fact, Subjectivity, act-finding, Procedure, Technology
PDF Full Text Request
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