The Application Of The Elements Fact Theory In The Gift Contract Litigation

The elements fact theory,which comes from Japan,is concomitant with judicial training system in Japan.It is not only a method of legal thinking,but also a judgment method.In the Judicial syllogism,the major premise is the legal norms and the minor premise is the specific facts of the case which can be realized the elements of the legal norms.The specific facts of the case are given the legal effect which contained in the legal norms by the conclusion.The most important function of the elements fact theory is determining the main facts of case(the specific facts of the case which correspond with the legal constitutive requirements)which as the minor premise.After the elements fact theory introduced,Chinese scholars' research has been still mainly in theoretical study.The research of application of the elements fact theory in contract law has also been in General.The elements fact theory builds up a bridge between the civil substantial law and the civil procedural law.It not only can guild the parties to attack and defense,but also can point out the direction for the judge.Gift contract disputes are common in contract disputes.Researching the elements fact theory systematically not only can promote the popularization of elements fact theory,but also holds great significance to solve the gift contract litigation.This paper is composed of four chapters.The main contents of the four chapters are:The first chapter is mainly about the introduction of elements fact theory.Investigating the etymology of the elements fact can strengthen the understanding of the elements fact theory.Through the analysis of the concept and characteristics,we have a preliminary understanding of the elements fact theory.Through analyzing the basis of elements fact,we can understand that the elements fact theory is not only a method of legal thinking but also a civil judgment method.It plays an important role in judicial practice.The second chapter is about the elements fact in gift contract litigation.This chapter starts from gift contract disputes and the common types of gift contract disputes,chooses the object of litigation(or right of claim)as the classification standard to classify gift contract litigation.On the basis of the classification,this chapter analyzes the elements fact in different gift contract litigation,which can guild the parties to attack and defense.The third chapter takes a gift contract litigation case for instance,to analyze the problem in the application of the theory in judicial practice.This chapter is divided into four sections.The first section is the brief description of the case;The second section is the recognition of subject matter of this action which is based on the plaintiff's claim;The third section discusses the situation of attack and defense between the parties,which focus on how the parties attack and defense around the elements fact;The fourth section is mainly about the situation in the court,which is how the judge system connects to the attack and defense system;The fifth section talks about outstanding issues reflected in the case of applications.Through the discussion of the above,this section discusses the problems in this case.The fourth chapter is how to build the system of interpretation right under the framework of elements fact theory.There is no law about interpretation right in our country,but there is some judicial interpretation.The exercise of interpretation right has a lot of problems in judicial practice.Through the elements fact,the judge system can dock with attack and defense system.In this process,the system of interpretation right is indispensable.Building the system of interpretation right must be on the basis of right to claim and under the overall framework of the elements fact.Building the system of interpretation right can guild the parties to exercise litigious right and prevent the judge's decision beyond the parties' expectations.