On The Judicial Notice

As one of the fundamental issues, the rule of judicial notice is closely relevant to the parties' burden of proof. The theory of judicial notice, which has been systematized in the main Common Law countries, is definitely though simply stipulated by means of legislation. On the contrary, it is empty about this important procedure rule of proof in Chinese legislation. Meanwhile, few scholars have ever studied about it in their works until recently. This is the reason why I choose the rule of judicial notice as the theme of my postgraduate treatise.On the one hand, to take judicial notice means the recognition without proof of something as existing or as being true. Therefore, the application of the rule is conductive to the reasonable division of the scope between the parties' burden of proof and the judge's positive investigation, thus resulting in the great theoretical significance in improving both the system of the parties' burden of proof and the system of the judge's positive investigation. On the other hand, such problems as low litigation efficiency and serious lacking of judiciary resources constitute obstacles of the successful realization of justice by means of litigation. Besides this, some malicious violation of civil rights easily escapes the punishment of the law because of the incapable of proving it through the normal process. The practical significance of the rule of judicial notice exactly lies in resolving those problems. Then, on the base of some foreign and domestic materials, I write the paper, in order that it can devote a little contribution to the resolving of specific problems in the judiciary practice as well as the theory-deepgoing and legislation-improving.The whole treatise is composed of 41,400 characters or so with the preface excluded and its main content as follows:Foreword: The treatise starts with a case.Part 1: The origin and the development of the rule. The ruleof judicial notice originated from the Year 1872 Indian Evidence Law, which has been absorbed by the legislation of both most Common Law countries and some Civil Law countries, though the former seems more perfect than the latter to the extent of the systematization.Part 2: Generalization of the rule. First the rule is defined. Secondly its quality is analyzed. Thirdly its main character is generalized. Finally it is distinguished from some relevant terminology.Part 3: The theoretical basis and practical significance of the rule. The theoretical basis of the rule lie in four aspects while the practical significance of it lies in two.Part 4: The objects of judicial notice. The objects of judicial notice are made up of laws and facts. The former includes international laws and foreign laws as well as domestic laws. The latter includes notorious facts and facts capable of being accurately proved immediately. Meanwhile, some administrative and judiciary facts are among the latter.Part 5: Excluded facts. Some kinds of facts, including adjudicated facts and proved facts authoritatively as well as private knowledge, should be excluded from the objects of judicial notice.Part 6: The classification of judicial notice. According to the difference in quality of all kinds of items judicially noticed, those items are generally divided into two: one is what should be noticed and the other is what may be noticed.Part 7: The effect of judicial notice. In this part, one section consists of the consequences caused when the judge takes judicial notice. The other is that the results mustn't be overturned by opposite proves.Part 8: The procedure of judicial notice. The procedure is composed of by these: starting the procedure of judicial notice; informing the parties; investigating some information beforejudgement; hearing from the parties before judgement; judging; taking judicial notice during in the course of the appeal procedure.Part 9: The establishment and consummation of the rule of judicial notice in our country. While absorbing the rule, we should resolve some relevant problems. These...