Principles Of Logic And Laws Of General Experience In Judicial Proof

The structure of judicial proof, which provides a structure for an analysis of principles of logic and laws of general experience, is a more stable structural relationship that is established in the activity of confliction /persuasion and verdict, oriented to the fact-in-issue, between parties and judges. The space of judicial proof should be confined in the process of trial or pre-trial in which parties and judges are all on the scene. The process of judicial proof can be divided into two phases---- fact-finding and its justification. We can specify these two phases from two different viewpoints: to parties, it's an activity of claim and persuasion; to judges, it's a series of mental actions from knowledge, convinction, and judgment to expression. The structure of debate that keeps a close relationship with the structure of litigation and the structure of judicial proof provides a tool for the analysis of principles of logic and laws of general experience.In this essay, the terminology logic (or principles of logic) is used in its broadest meaning, as a combination of a process and its effect. It contains not only the forms of reasoning, the rules of reasoning and the principles of reasoning but the process (or tendency) of formalization itself. Under this definition, codification and strict rule-oriented mode in justice can be taken as sign of logic. In its totality, principles of logic keep a one-to-one relationship respectively with the fundamental elements of judicial proof: the articulation of fact-in-issue to the law of identity, the exclusion of contradictory evidence to the law of no-contradictory, the burden of proof to the law of excluded middle, and the standard of proof to the law of sufficient reason. In its parties, principles of logic provide an analysis method for some concrete questions such as the relevancy of evidence, the division of direct evidence and indirect evidence, the inference relationship between probans and probandum. In summary, logic is a useful tool for us to understand the reasonable process of judicial proof and it provides a method of analysis.Similarly, in this essay, the terminology experience (or laws of general experience) means a combination of a process and its effect. Some division of experience type can be made. Among these experience type, historical experience (the opposite of present experience) and general experience (the opposite of special experience) are most important ones. Activities of legislation and enforcement of the law involve in experience. Traditionally we have a culture of emphasis on experience but also confront some puzzle questions at present. In the concrete process of judicial proof, we should focus on the relationship of historical experience and experience-at-present. Laws of general experience (or common sense) are some common sense (general knowledge) or principles which are induced from a character or a relationship of the matter (matters) by our experience. In judicial inference, law of general experience constitutes a major premise of a syllogism and it takes an active role. Laws of experience and judges'experience-at- present balances each other and judges should attain their knowledge of fact-in-issue from the combination of laws of experience and their experience-at-present. The theory and technology of laws general experience, provided by both continent scholars and common law scholars, make it convenient for us to understand and use it. Laws of general experience and judge's experience-at-present warrant the conclusion of judicial proof.The principles (rules) of evidence keep a close relation with principles of logic and laws of general experience. The principle of free valuation of evidence which establishes rational base for the valuation system of evidence needs both support and limitation and logic principles take an important role in this course; Similarly, the course of free valuation of evidence not only rely on but also is confined by course of experience and laws of general experience. The principle of verdict on evidence involves with the logical course and logic principles because the course of establishment of evidence system, from trial by ordeal to so-called“legal proof”, from so-called“legal proof”to the system of free valuation of evidence, is also a course of logic. Logic provides a basic logic structure and a formal method for judicial proof. The fundamental rationality presented by the principle of verdict on evidence exists in the experience relationship of evidence and fact-in-issue (probandum). It's a course in which laws of general experience and experience-at-present about evidence and fact-in-issue check, balance, combine each other. When we consider of establishment of our country's system of evidence rules, we are confronted some questions. For example, whether or not it's necessary to establish system of evidence rule in our country, what a system of evidence rule we need, and how to construct this system, and so on. However, the study of principles of logic and laws of general experience can help us making a choice, and so does the practice of other countries.Judge's discretion is a guarantee of refined justice and it also needs support and limitation which come from principles of logic and laws of general experience. Principles of logic take on a vital role in concrete course of justice. Take the course of fact-finding as an example, principles of logic and rules of evidence provide necessary premise of logic and provide competent evidence. Some rules of valuation weight of evidence constitute necessary limitation and some rules of orientation of inference also influence the use of judges'discretion. On the other hand, judges'discretion also involves with experience and laws of general experience. Laws of general experience (as a historical experience) and experience-at-present of evidence provide a background for judge's knowledge of fact-in-issue. In this course, laws of general experience and experience-at-present of evidence check and balance each other. However, in the course of judge's discretion, some conflicts may occur among individual experience of judges, laws of general experience and social polices as its totality. If there is no concrete rules which reconcile these conflicts in codes, judges are obliged to consider the conflicts of these values in their discretion so that judges can make a more reasonable decision.A presumption, in its legal meaning, is a legal rule. A presumption may be defined to be an inference required by a rule of law drawn as to the existence of one fact from the existence of some other established basic fact. In the course of establishment and usage of presumptions, logic (principles) and laws of general experience take a key role. A presumption bases on the logic form of inference and makes at some extent artificial enforcement on the reliability of laws of general experience. According to standard of logic, we can divide presumptions into two parties: reputable presumption and irrefutable presumption, excluding factual inference from presumptions. A presumption gets its guarantee from logic and law of general experience; however it has some character of man-regulated. Although a presumption has a lot of positive values such as convenience of judicial proof, enhancement of judicial efficiency, it shares some negative values yet. In criminal process, a presumption may erode judge's free valuation of evidence partly and may erode the presumption of innocence partly that is a fundmental principle of protection of defendant in criminal process. Logic (principles) and laws of general experience provide a basic background and a concrete tool for our analysis of presumption.In summary, logic (principles) and laws of general experience exist in the principle of free valuation of evidence and the principle of verdict on evidence. They give a guarantee of rationality of form and materiality.