Behind The Formation Of Legal Facts

The formation of legal fact relies on the evidence which can just provide the fragmental information during the time of the incident occurs; it's only the incident rather than the constant fact. Legal fact must be an "as narrated fact". Traditional law theory is wrong that as long as evidences are completes and complies with the evidence law and procedure law. In fact, evidence is only a necessary condition for the formation of legal fact instead of sufficient conditions; it is an important factor but not all. Pursuant to identification of the evidences through procedure law, the judge must also compile legal fact based on the evidence provided by the fragments of information refactoring past, which conform to law, and then give out legal assessments and empower its legal consequences. This is a process that judge pursuant to identified evidence "compile" story which meet the statutory underlies. In this process, selecting evidence, emphasizing different evidences, giving different evidences different meanings become major tools that judge use. This is the so-called trimming facts. In the process of reconstruction of past facts, narrative and rhetoric are essential; judge gives evidence in a logical order and legal significance through the narrative, which makes information provided by fragmental evidences to become a complete story. In a certain sense, the formation of legal fact is the process of reconstructing the history. The story construct history and story is the original ideal of accident facts.Of course, there are different narratives in the formation of legal fact, for the "story" relates to the plaintiffs and the defendant's vital interests, or even lives, so different subjects will invent different stories, though the evidence is legitimate, or even the same. The stories are different because different stories correspond to different legal rules, but different legal rules will relate to different evaluation, different consequences. The consequences are different; the parties wish to avoid unfavorable consequences. So the trial process is the process the parties competing for describing what have happened in the past, the legal debate is a struggle for the privileges to narrate the past. The rights of winner is to fill a constitutional terms specific meanings, an act or a series of past decisions, and the meanings has been there since they narrate the initial case and specify its place in history. It is in that different and constructive stories, we have the footages and approaches on the legality of the modern rule of law and democracy, the advantages and limitations of the rule of law. There are amazing struggles, secret behind the formation of legal fact which is not revealed in the past study. In the space constructed by proceedings, how the legal fact forms and what are behind the formation of legal fact is what this article attempts to uncover. This article primarily discusses how judges to construct legal fact and what are behind the formation of legal fact. So this article will discuss two levels-how judges get the evidences and how judges construct legal fact. At the same time, this article attempts to discuss the confrontation of mass discourse and profession discourse of the process of construction of legal fact. This article attempts to discuss that it connotes a dual tension of the rule of law in modern time- the inner tension of the rule of law and the external tension of rule of law. Thus, advantages and disadvantages of the rule of law and legitimate and democratic issues in this confrontation are exposed in the process, and to try to discuss the dilemmas that judge facing.