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Identification And Application Of The Ultimate Fact

Posted on:2017-07-18Degree:MasterType:Thesis
Country:ChinaCandidate:Y XuFull Text:PDF
GTID:2336330485972842Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
For civil law system countries,it's inevitable to take the pattern of elements and effects to fulfill the aim of the widely application of laws,which determined the pattern of litigation that decided by facts.The facts which can be commented are named the ultimate facts.For the legal system perspective,it can be divided into three parts,they are recognizing of right element,testifying of facts and applying of the law,which can be regarded as a logic circle.Usual civil cases take this kind of pattern to argue and judge.The main points of this article are the basis of ultimate facts,the distinction of elements facts and application of ultimate facts according to the former means.First part is focused on the basic conception of the ultimate facts.Abstract elements get accordance with the effects of law in the substantive law.The premise of ultimate facts is the civil law system,which contains the facts and the comments.The ultimate facts are similar to the legal facts in civil law and the main facts in procedural law,however they have the different characters,ultimate facts have the dual roles of both the civil law and the procedural law,which contain uniqueness scalability and materialityThe next part is discussing the relationship between the burden of proof and the ultimate facts.It is widely recognized that the burden of proof is divided into two parts,responsibility of claims which transferred between the involved parts as the case going on,and objective responsibility which is determine the responsibility of claims at start of the litigation.In our country,it's usual to consider the structure of code,evidence factors,valuation and trichotomy when distribute the burden of proof.The ultimate facts are the main objects which should be improved,connecting the burden of proof.The third part is talking about the relationship between responsibility of claims and ultimate facts.In adversary system countries,trail objects are decided by parts claims.Responsibility of claims are usually performance as the attack and defense system,which should concerned the facts.The process of the system goes through claiming,defensing and rebuttal.Usually,active denies of the litigants can be regarded as defense,while the silence and passive denies cannot.The fourth part is mainly focused on the identification of the facts.The claim facts involved the identification of the subject matters.Which is the necessary process of ensuring objects of action and the premise of identifying the ultimate facts.Identifying ultimate facts has two steps,first one is recognizing the elements according to the regulations which decided by subject matters,determining the claim facts and defense facts.The second step is connecting to the real cases,identify the ultimate facts.Both the steps should follow the expression pattern of regulations,in other words,the normal and special regulations.In special circumstances,it's hard to identify the facts by using the structure of law,we should make a combination of the interpretation of civil law and the individual cases in evidence law as a supplement.The last part is talking about the using of elements to identify the claims and defenses.In the litigation of identify the stock ownership,the facts of deregulations should be regarded as defense facts.The facts concern about proper plaintiff should be ex officio matter,however they may be sometimes similar to the defense facts,which should be treated separately.In the litigation of right to learn the truth,the internal processes of remedy should be treats as claim facts,while the facts of illegal purposes should be testified by the defendants.
Keywords/Search Tags:Ultimate facts, Burden of Proof, Responsibility of Claims, Adversary System
PDF Full Text Request
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