It is generally believed that in the course of the trial,the judge's work is first to ascertain the facts,to solve the problem effect,and then apply the law to solve the legal problem.Based on this understanding,the academic circles of the judiciary in the determination of the legal facts also carried out a split-type research,litigation law scholars focus on the identification of the facts,and jurisprudence scholars are obsessed with the application of law,but they are ignored the fact that identification of the facts and the application of law is a complete indivisible process,a separate focus,cannot help but trade-offs.Therefore,if the two can be combined with the overall perspective,both in theory and in judicial practice will have an important research value.This paper is divided into three parts:The first part is the discussion of the basic theory of fact.The discovery theory and the construction theory are two different claims about the identification of the legal facts on judicial process hold by the academic community.The distinction between subject and object are the basic mode of thinking of discovery theory,advocating that the judicial process is the process of knowing the object by the subject.The construction of the theory argue that the legal fact is the result of the negotiation between different subjects.Both theories have their own merits and their own flaws.Objective reality theory and the legal truth theory are two opposing views about the true nature of the facts.Objective reality theory holds that The standard of truth is the consistent with objective facts,the theory is difficult to operate in practice.The legal truth theory argues that the facts determined by the judge should be regarded as true as long as they meet the provisions of the substantive law and the evidence law.This is a more pragmatic point of view,but there are also logically difficult to self-consistent place.Finally,this article divides the facts identified in the judicial decision into two levels of case facts and legal facts through the study of relevant theories.The facts of the case are the facts of life proved by evidences,to identify the facts of the case is to answer "what happened." The legal fact is the legal characterization of the facts of the case that has been identified,and what is to be done is the nature of what has happened.The second part of the article discusses the facts of the case.This article concludes that the fact of the case is the result of the logical reasoning of the judge based on evidence and experience.Evidence provides a small premise of logical reasoning,experience provides the big premise of logical reasoning,The logical form of varies with the specific case.The facts of the case are based on the information contained in the evidence,which can be divided into direct evidence and indirect evidence,depending on the amount of information contained in the evidence.Direct evidence confirms the facts of the case in a mutually proven manner,and the indirect evidence is a proof of the facts of the case in a systematic manner.The logical form of evidence to the fact is derived from the derivation of the fruit,and the logical form of the facts of the evidence to the facts of the case can be distinguished into the rule of the identity,the conjuntion,the deductive logic,and the factual presumption.Experience is the basis for the cognition and judgment of the judge,and thus the basis of the facts of the case,on the ascertainment of the facts of the case,there must be the use of experience,at the same time,due to the probability of experience,the improper use of experience will lead to the error on the ascertainment of the facts.The third part of the article discusses the identification of legal facts.The legal fact is the legal characterization of the facts of the case have been identified,in order to identify the legal facts,The actual legal norms and the facts of the case must to explain each other.Classification model and equivalence model are two models of The combination of case facts and legal norms.The classification model holds that the combination of case facts and legal norms is the fact that the facts of the case are classified into the class facts represented by the legal norms.The classification of The facts of the case to legal norms need to have corresponding legal elements.The equivalence model holds that the factual facts and the abstract legal norms are equally placed in order to discover the identity of meaning of the facts and the legal norms.Finally,when the legal norms can not provide a ready answer to the facts of the present case,the judge needs to use the means of value evaluation to fill the omission of the law to complete the identification of legal facts. |