Before starting the discussion, we should first make it clear that although there are factual issues and legal issues in theory, in trial, the distinction between factual and legal issues is only in a relative sense. The handling of factual issues, that is, the identification of case facts, is not a purely fait accompli investigation and verification process. Especially under the adversary-based defense litigation model, the identification of case facts is mainly based on the admission of evidence around the focus of the dispute. , the construction of evidence, the allocation of the burden of proof, and the admission of evidence are all carried out in the rules of evidence. Therefore, the identification of case facts must follow the guidance of legal norms from the beginning, and the handling of factual issues is not simple.
1. Argument process of fact determination
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The court investigation stage is the main argument for the fact determination of the case. place. The cross-examination of evidence between the parties during the trial is to describe the truth and reconstruct the facts of the case for the court. It helps the judge determine which evidence should be admitted and promotes the judge's determination of the facts of the case. There is only one objective authenticity of facts, so most of the time when a party objects to a certain piece of evidence, he or she can only question the authenticity and relevance of the other party’s evidence, and the judge can only approve or disapprove it based on logical reasoning and common sense judgment. , and does not have much legal knowledge at all. At this time, the judge's evidence admission process is actually closer to a factual issue; only when the parties question the legality of the other party's evidence or when both parties have contrary evidence on the same issue, the judge needs to By explaining whether the evidence is legal and comparing the size of the evidence, the judge's evidence admission process will be closer to dealing with a legal issue. However, based on the relative division of factual issues and legal issues and the legal attributes of evidence rules, we can say that the argument for fact finding involves the legal standards of evidence and is transformed into a legal issue to handle disputes. The clerk needs to record the argumentation process of the entire case fact determination in the court transcript. The judge should explain the reasons for the admission of evidence. The 1999 "Five-Year Reform Outline of the People's Courts" requires that judges must strengthen the argumentation of factual issues in their judgments. .
In cases where the rules of evidence are not involved, if neither party has submitted evidence (such cases are more common in grassroots courts), the judge will generally only briefly describe the facts of the case in the judgment. There seemed to be nothing to say. But in fact, the judge must face inquiries from the parties before and after the judgment, especially in some cases with significant social impact, and even inquiries from the public. This kind of inquiry is not independent for the court hearing and lacks professional knowledge structure. It is extremely challenging for Chinese judges (in this sense, the introduction and revival of the jury system is quite reasonable). Therefore, whether it is before the trial - in fact, it is difficult for judges to avoid contact with the parties before the trial, especially at the grassroots level, judges seem to have to do a certain amount of legal education work before the trial - or after the trial, the judging judge must communicate with the parties. Communicate between the parties and make persuasive judgments on certain factual issues. Identify factual issues and do the work of persuasion. Because, in most cases, in addition to asking the court to protect their legitimate rights and interests in accordance with the law, the parties will also ask for an explanation like Qiu Ju. They do not necessarily care which legal provisions apply, but will check the judge's interpretation of the matter word by word. narration and raise your objections in a timely manner. This is also the reason why clients are always more excited than lawyers in court: lawyers only care about the final success or failure of the case, while clients are more concerned about the rights and wrongs of the case facts themselves. The merits make an intuitive judgment on the fairness of the case and the outcome of the litigation. Therefore, in the absence of evidence rules, although the argumentation process of fact determination is less formally expressed in words, it cannot be ignored or ignored.
The difference between the argumentation process for fact determination and the argumentation process for legal application is that: the argumentation for fact determination is jointly promoted by the parties and their attorneys and the judge during the trial, and does not require a comprehensive statement; Although there are suggestions for the application of the law from the parties, especially their attorneys, the argumentation process is mainly completed independently by the judge in the judgment, and it is required to be expressed in a standardized form. And require accurate expression in a standardized form.
It is necessary to think deeply about the new principles and write down the meaning.
2. Fact-finding methods
In view of the importance of fact-finding in cases and the difficulty of discovering the "past" truth, we must pay attention to the accumulation of experience, such as the ability to control trials, and communication methods are also important.
Ten major karma about Paul Dou Jilinbulian.
1. Admission of evidence
The party’s defense has established the direction of the reform of my country’s litigation system, and the three major litigation legislation and related judicial interpretations have also been established accordingly
Sub-evidence rules, the admission of evidence has become the main method and approach for judges to determine facts. Both parties provide evidence around the focus of the dispute, allowing the judge to reconstruct the legal truth of the case, and the judge makes judgments based on the rules of evidence. This defense model has proven to be effective in most cases. However, since the defense system is based on a limited restatement of evidence when determining the facts of a case, we are bound to face the truth beyond the evidence. In order to handle the case fairly, the limitations of the parties' ability to produce evidence also affect the substantive fairness of the judgment. . While ensuring procedural fairness, we cannot easily give up the pursuit of substantive justice. Therefore, we cannot exclude other fact-finding methods other than the admission of evidence.
2. Cross-examination
When there is insufficient evidence or the existing evidence cannot make a strong argument for certain facts, the judge’s questioning-sometimes is a very skillful questioning (not Irrefutable)--is necessary because the parties' statements are always biased towards their own side. Cross-examination is one of the most effective methods because it can instantly refute the statements of both parties in the evidence. The parties cannot fully prepare themselves for unclear questions in advance, thereby making certain matters unproven by the evidence or impossible to obtain from the existing evidence. The truth reflected in the evidence is exposed (in a criminal trial, this method of cross-examination takes the form of questioning multiple defendants separately). In rural China, the parties cannot avoid the communication after the case is handled. For some case facts that are difficult to avoid or deny directly, court cross-examination plays a considerable role.
3. Rules in daily life
The Supreme Court confirmed in the civil (2) (3) litigation that the court can directly
>Determine the facts. Compared with well-known facts and natural law theorems, the presumption of the laws of daily life is more methodological. In the absence of relevant evidence, and in the case where the facts of certain cases cannot be verified due to the silence of the parties, the presumption is valid. Because all legal norms should not conflict with common sense in life, and in fact, when our legal provisions are inconsistent with common sense in life (such as customs), the judge must find a balance between the two and make common sense decisions accordingly. Judgments and reasoning are quite sound. However, it should be noted that the effective grasp of this method depends on the judge's own life experience and correct judgment of specific cases. In other words, social experience and trial experience are the basis of this method.