On The Fact That Pre-determination "in The Trial After The Case

In this article the writer has discussed one of the binding effect of a prior judgment-issue preclusion.In 2002 the Supreme Court of the People's Republic of China announced their opinion about this matter in a judicial explanation. They ordered that a party for whom the prior court had decided an issue, of which the court's view was recorded in a valid judgment, need not produce any evidences for the same issue in a later suit, and the later court should accept the view of the first court on that issue, unless the opponent has enough evidence to persuade the later court to accept a different view of the issue.The writer has criticized the Supreme Court's opinion on this matter, and suggested that the courts of China refer to the rule of issue preclusion of the American federal courts. This means when the parties in the subsequent suit are identical to the parties in the first suit, the later court must accept the first court's view about the issue, if the same issue had been actually and necessarily decided in the first action. Most importantly, the writer holds that court must forbid a party from claiming any effect of issue preclusion against a person who was not a party in the first action.The writer has at first discussed the relation between judicial notice and the effect of an issue decided in a prior judgment, and pointed out that the only relevance of the effect of an issue decided to judicial notice is that the court can make assure that some issues in two suits are identical, on some occasions, through judicial notice of adjudicative facts.The writer has pointed out that the explanation of the Supreme Court is not only in conflict with the basic principle of burden of proof, but also can be very unjust in proceedings. When the parties are same in two actions, the key reason to be unjust is that the court cannot fairly decide how much credibility of the opposite evidence is enough to persuade the later court to accept a different view of the issue. When a person, against whom the effect of an issue decided is claimed, did not take part in the first suit as a party, the key reason to be unjust is that the person not only has to undertake unfairly heavy burden of proof, but has in fact beendeprived of the main chance of acquiring the opposite evidence as well.The writer has then compared the approach of European doctrine of res judicata with the approach of American doctrine of issue preclusion, and conducted the American approach is vmore favorable, because the American approach can reduce the likelihood of the court's making different decision on the same issue and is for more efficient.In the end, the writer has proposed an amendment of the explanation of the Supreme Court about this matter.