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On Fact-finding In The Court And Evidence

Posted on:2010-01-01Degree:MasterType:Thesis
Country:ChinaCandidate:J X ChenFull Text:PDF
GTID:2166360275460722Subject:Law of logic
Abstract/Summary:PDF Full Text Request
"Fact-based" is the criteria for the administration of justice in our country, but the fact does not automatically appear on the front, we must use some means-the evidence. The administration of justice in the real life had shown the link between the evidence and fact, especially in modern litigation, the evidence has become the foundation of fact. The change from the "fact-based" to "evidence-based" has witnessed the changes of the evidence's function in fact-finding in the court,and the speaking with evidence mode of judicial urgently requests us to make clear analysis of the path that how the evidence influnces fact-fining. On the study of the use of evidence in fact-finding in the court, this article will identify the entire fact-finding as a reasoning process, describe the logic ways that the judge uses in fact-finding as much as possible on the base of definition of the evidence and fact of the case, then reveal the relativeness of fact-finding, refer that the fact of the case which the judge is based on actually is the reconstruction of the fact on the basis of evidence according to the law, hoping these discussion would play a role in judicial practice.Besides the preface, this thesis is divided into four parts:Part one analyzes the definition of the fact-finding in the court and other related concepts. This part starts from fact, the fact is divided into three levels: the living fact, the legal fact and the case fact, followed by the path which the fact come into litigation procedure. From the viewpoint of the author, the "case fact" should be defined as the judge's conclusion on the physical truth, which is made on the proof of the subject of litigation through litigation procedure. Fact-finding is different from litigation proof, proof gives service to fact-finding, and fact-finding is based on litigation proof.The second part is to analyze the evidence as the basis of fact-finding. First, explain the relative principium about the evidence in litigation by static perspective. In modern litigation system, the principle of evidentiary adjudication has become a recognized principle of the theorem, using evidence to find out the truth has been seen as the basic theory of law of evidence. But, not all the fact-finding need evidence. There are three exceptions to the principle of evidentiary adjudication: admission of facts, judicial cognition and the presumption of truth. In view of confusion on the definition of the evidence, to avoid plunging into struggle of concept, the writer devides the evidence into "evidence as probative stuff" and "evidence as verdict basis" in accordance with the different stages and occasions in evidence using, then dynamiclly anylyzes the formation of the "evidence as verdict basis". The "evidence as probative stuff" would be transformed to the "evidence as verdict basis" only if it is verified to be trusted by the judge through the cross-examination in the court. This verification process, the review and verification of the evidence, specifically manifests tobe the judge on the legitimacy, objectivity, relevance of the evidence. With evidence confirmed, the next step is reasoning to the facts of the case.Part three discusses the concrete application of the evidence in fact-finding. In the process of fact-finding, the finding activity always represents to be a reasoning process from the known fact to the unknown fact. In this reasoning process, the judge link up the known and unknown facts by using the experiential knowledge reserved in advance as the major premise of the reasoning. Therefore, all of the reasoning process can almost simplified to be a form of a syllogism which includes a major premise, a minor premise and a conclusion. On this point, if the logic structure of one reasoning is correct, and the premises are trustful, then the reasoning could be used to support the conclusion. First, the writer discuss the reasoning of single fact, divides it into "attestative reasoning" and "negative reasoning". Then point out that the finding of the whole fact is not only the simple sum of individual facts, but also the roudly evaluationg on all evidences, especially explains the reasoning of indirect evidence in lack of direct evidence.Part four mainly talks about the result of fact-finding. Ideally, the fact found in the court should be objectively true, which means the fact should be exactly the same as what had actually happened in the past. Therefore, actually, the fact-finding process which is influced by A variety of objective and subjective factors such as the evidence, The capacity of individual judges and legal norms, is quite a complex, difficult process. The fact which is finally found is judgement that made on the verification, analysis and reasoning of the evidence , could only be "legal true".
Keywords/Search Tags:Fact, Fact of a Case, Fact-finding, Evidence, Reasoning, Truth
PDF Full Text Request
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