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Facts Confirmation In Civil Litigation

Posted on:2009-01-31Degree:MasterType:Thesis
Country:ChinaCandidate:W ChenFull Text:PDF
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This thesis is an exploratory article about how to clarify facts in civil litigation. In recently years, research achievements concerning this aspect have been made a lot, followed by the trend towards coherency of some basic viewpoints, for instance, the assortment of objective facts and legal facts, basic value of attestation, facts attestation standards in civil litigation, assortment of attestation responsibility, etc. Research outcomes are severely restricted to jurisprudence category of civil litigation, the research also limits further cognition of some basic problems, and consequently, it needs nutrient uptake from other subjects.Precise, authoritative definition about facts has never appeared in a large number of judicial documents and research articles. Complete success has hardly ever been achieved in defining facts tried by a lot of researchers from many aspects, which phenomenon results in no uniform interpretation of"facts"meaning in a great number of legal texts. Some scholar has been aware the amazing consistency of facts referred in litigation jurisprudence realm and the definition of"history"in history, in fact, except different academic contents, facts involved in litigation can definitely been called"history". Some concepts used in history study, while altered properly, have been used by the author in research concerning facts in civil litigation.History exists in three forms, namely, primitive form, inheritance form, and impression form(1) in history. As for researchers, primitive form only existed in bygone space-time, and it can only show its existence in reality world in a presumed way, however, it did really exist and keeps correcting human being's wrong cognition through various kinds of means. It's impossible and unnecessary for it to get known completely and wholly. The inheritance form means facts-felt existence in another form after the space-time of primitive form. The impression form of facts refers to impression and memory about primitive forms of facts existing in subjective world. Nevertheless, definition in history is not completely applied to research upon facts forms in litigation jurisprudence. In order to make their boundary clear, easy distinguished and more suitable for litigation jurisprudence research, the author renews define it.Case-proceeding process is also the switching process of facts forms, during which, the author introduces the concept of"objective information of primitive facts". Various kinds of phenomenon deriving from primitive form of facts are called objective information, sometimes also called first-hand information. The objective information itself is a fact while simultaneously a phenomenon and it can be evidence in litigation only when meeting some certain requirements.The switching process of facts forms is also a bleeding process of subjective information of primitive facts in litigation, and the procedure rule itself aims at bating the outcome of this phenomenon. This thesis, analyzing the internal reasons of this phenomenon and bringing up some necessary consumptions in theory research, points out that the essence of facts affirmation is an assurance of judge and an indirect impression form, the forming process and basic feature of whom exert great influence upon some basic rules of facts confirmation in civil litigation. These existing affirmed facts in subjective world are prepared for judges.Some basic rules, as conclusion of judicial practical experience, shall be followed in facts affirmation process. Moreover, some effective legislative measures have been adopted aiming at discovered various kinds of distortion phenomenon. These rules are embodied at different degrees in civil litigation procedure rules in most countries, firstly the affirmation of basic rights and obligations of both parties; then clarifying respective proof obligation, and thirdly basic facts-affirming rules, all above aspects are in possession of some concrete legislative rules.Facts affirmation in civil litigation are not undergone in boundless scope, for litigation efficiency and respect for parties'rights requires restricting facts scope involved in litigation. Restriction can be classified into structural restriction and goal restriction. The former aims at scope depth of litigation facts, that is, the layer of all contradictions and cause-effect relations included in litigation in the material world, while the latter means facts scope required for resolving disputes. Above both serve as the system guarantee under which civil litigation undergoes smoothly.Disputes of litigation models between disposition Maxine and debate principles exist in theory horizon of our nation. These two models differ in restricting rules of facts scope in litigation; comparatively, the latter is preferred to most countries as legislation. It requires restricting facts scope involved in litigation to scope advocated by parties, and while respecting parties'rights, it restricts judge's authority properly.Since facts scope involved in litigation is restricted to scope advocated by parties, law nature of dispute shall be ascertained in this scope too. Within this scope, it is common that information distortion and bleeding occur when primitive facts changing forms. Suppose we regard all information leading judge to form indirect impression about facts as former-hand information, when judge make subjective assessment of former-hand information, certain proof standards shall be followed to confirm the true or false facts are, during this process, it is common that advocated facts is incapable of being confirmed, and who shall take the disadvantageous law responsibilities if so? Then it refers to proof responsibility theory, the most mature theory of which is from Rosenberg, the German scholar. Proof responsibility is divided into affirmation responsibility in terms of action meaning and result meaning. The former determines if the advocated facts can be confirmed, and the latter determines the other party shall bear the disadvantageous responsibilities in case judge can not form definite, indirect impression form.
Keywords/Search Tags:fact primitive form, inheritance form, impression form, objective information of primitive facts, facts affirmation, structural restriction, goal restriction, disposition Maxine, debate principles, proof responsibility
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