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The Study On The Fact In Civil Referee

Posted on:2014-01-22Degree:MasterType:Thesis
Country:ChinaCandidate:M J GuFull Text:PDF
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The scholars of law think that judicial proceedings generally includs two basic setpts, one is the judgements of facts and the other is the application of law. Judging the facts of the case means the referee’s finding activities in the process of judicial litigation. That is the referees use evidence as media to cognitive pending the activities carried out by the facts of the case. It is a key steps in the judicial proceedings, because it’s inpossible to draw a agreeable judicial decision which can quell the lawsuit unitl the refree’s judging activities accord with the facts.Experience has shown that judging the facts is more difficult than the application of law. However,in China,due to the influence of China’s traditional ideology,the institution of the judgements of facts is lagging behind.Moreover, the judicial interpretation which made by the highest institutes is more about the application of the substantive law and judging operation, and rarely involve the judgements of facts.Therefore, it is difficult for the pre-existing law to apply to complex cases needs.Currently, many countries with adequate legal system have made detailed legal provisions on the institution of the judgements of facts and they have carried on in-depth research on the implementation and cocroling mesures of the institution. In this article, the author combine the pre-existing results of the research from home and abroad and the China’s actual situation,then analyse the problems our insititution of the judgements of facts may have at this stage.At last, put forward suggestions for improvement on those problems.This article will analyse the insititution of the fact-finding of a case in civil procedure from folowing chapters.In the first part; overview the fact-finding of a case and distinguish the fact of the case from objective fact and legal facts.The goal of this chapter is to determine the object of study.The second chapter is the basis of the fact-finding of a case.It will discourse the effect and significance on the fact-finding of a case made by evdencejudicial notice and the judiciary deduce. Chapter III and Chapter IV will compare the insititution of the fact-finding of a case of Europe and the United States legal with that in China from two aspects,that is external legal constraints and inner psychological constraints the referee suffered from the process of the fact-finding of a case.In the fifth chapter, the author will discuss the problems of our insititution of the fact-finding of a case at this stage in the quality of referees, the progress of court hearing and adjudication supervision to reveal the shortage of our existing the system of Litigation case fact authentication.And the last chapter is about some advices and suggestions to perfect the facts of the case’s system. Mainly by excellenting professional judge;establishing preliminary hearing procedural;setting up the cooperation pattern of litigation to cover.Under the background of judicial reform heavily in our country, the hight rate of appeal and the letters and visits.Although there is no lack of among them judges own moral quality problem or professional ability,But it should be said that the focus of dispute is mainly focused on the facts of the case parts.Practice have proven that just rely on vocational skills training of the judge and Improve vocational moral quality training of the judge to solve this problem is a difficult thing to achieve. The author believes that only through the corresponding judicial reform to build belongs to China’s actual situation of the case facts system, relevant auxiliary system and the social support system,can meet the full range to protect part’s rights,to obtain the better and social result.
Keywords/Search Tags:Facts of a case, The facts-finding, Legal restriction, Free evaluation ofevidence, Legislative proposals
PDF Full Text Request
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