Application Of The Theory Of Legislative Fact In Civil Trial

Under the party-leading proceeding mode,the delay of proceeding,deviation of proceeding outcome and impairment of judicial authority can result easily from the gap between the proceeding capacity of party and the requrements of party-leading trial mode as well as the unscientific judgment mode of judges which is lack of guidance.An effective way to solve the above-mentioned problems is the theory of legislative fact,which has a distinct practical feature.With its theoretical basis deriving from the burden of proof theory and burden of pleading theory in the civil proceeding theoretical system,the theory aims to building a bridge connecting the internal relations between the substantial law and procedural law based on the two theories.With private lending dispute,a main type of proceeding,as an example,this paper introduces the theory of legislative fact with the purpose of providing a more scientific method of trial for the solution to this type of cases.This paper can be divided into four parts as below:The first part is an elaboration of the necessity for the introduction of the theory of legislative fact to civil proceeding.After a reflection on the current system of civil proceeding,it concludes the advantage of the theory of legislative fact in civil trial from the definition of legislative fact and the operability of them in practice,and further introduces how the legislative fact are identified in the trial.The second part is a typological analysis of the legislative fact in the private lending dispute proceeding.The main types of legislative fact in the private lending dispute are analyzed according to the provisions of law in force and the distribution of burden of proof in corresponding types is discussed from the two aspects of right of claim and right of defense.The trial thinking and operation step of private lending cases are handled well from a macroscopic perspective.The third part is the concrete practice and application for trial method of legislative fact.With different defendants,application of trial method of legislative fact to the two typical cases in private lending dispute cases in a more concrete way provides reference and demonstration for how to analyze and handle typological dispute cases with typological legislative fact.The fourth part is a summary of the importance of theory of legislative fact in procedure guarantee based on the analysis of the above-mentioned cases.In practice,not only the effective docking of party's attack and defense system and court's trial system is relied on,but also the effective exertion of judge's interpretation right in the proceeding is included.With the exposition of the above four parts,this paper has put theory into practice for trial method of legislative fact in private lending dispute.The theory of legislative fact is expected,as a trial thinking,to be more widely used in civil trial.