| The essence of judgment lies in the accurate application of the law,in accordance with the rule of law in the form of "syllogism" to resolve disputes,so as to achieve a fair and reasonable redistribution of rights and obligations among the parties.The application of the logic of judicial syllogism not only depends on the clarity of the legal concept in the legal norms,but also can not be separated from the accurate tailoring of the case facts as the basis of the decision.Judicial practice vividly shows that it is difficult to guarantee the correctness and stability of the application of law only by relying on substantive law interpretation.The main reasons are as follows: First,legal interpretation is based on the acquisition of the general premise of judicial judgment,and its research and commentary on legal concepts have obvious static characteristics,which is difficult to meet the interpretation needs arising from the diversity,richness and dynamism of case facts.Second,in the process of litigation advancement,the accurate generation of litigation entity content,including trial objects,litigation materials and dispute resolution schemes,depends on the effective domination of substantive law normative elements,but traditional legal hermeneutics cannot provide a continuous and reliable path guarantee for this.Third,it is difficult to judge whether the connection between legal elements and case facts is completed,that is,when the facts are in a state of unknown authenticity,the function of legal interpretation cannot be played,resulting in the failure of the function of substantive law as a judgment norm.Therefore,it is necessary to realize the paradigm transformation in the theoretical structure and function of the law application method.This transformation is embodied in the following aspects: first,in the major premise perspective centered on finding and creating legal norms(which can be summarized as finding and creating laws),the minor premise perspective of fact formation and connection with norms is actively integrated;Secondly,in the perspective of evidence law centered on whether the fact exists,the perspective of substantive law that makes the fact accept the normative requirements is actively integrated;Third,in the given state of facts with the realization of “subsumtion” as the center of the behavioral norms of the perspective,into the truth of the facts are unclear when the accurate litigation risk allocation perspective.The study of the theory of essential facts is devoted to the realization of these functions,thus it can also form a useful supplement to the traditional interpretation of law.Clarifying the concept of essential facts is the basis to ensure the correct play of its adjudication function.Essential fact is a concept with methodological significance,which is based on the reasonable connotation of the concept of "legal fact" in substantive law and the concept of "main fact" in procedural law,and is used to characterize the shaping function of normative elements to case facts in litigation,so as to promote the concrete realization of normative elements in cases.In this paper,the definition of essential facts is as follows: Essential facts refer to the final facts that are essential to a certain legal effect under the guidance of constitutive elements and normative construction stipulated by legal norms,which are explained and sorted out and retrieved in cases.Its core connotation lies in that it is the specific fact corresponding to the normative elements that conform to a certain legal effect(the occurrence,obstacle and elimination of rights).The characteristics of the essential fact are manifested in three aspects: First,the unidirectional correlation between the substantive law and the legal effect,which means that the legal effect caused by a certain essential fact can not have two effects of right occurrence or right obstruction at the same time.Second,procedural law has the characteristic of "identifiability" based on specificity and concreteness,which enables the essential fact to be distinguished from other facts and become the object of court judgment and litigant litigation.Thirdly,there is a methodological interpretation cycle,which means that the final confirmation of essential facts will go through circular considerations between normative elements and case facts,factual claims and factual proofs,as well as the whole and part of legal provisions.In the initial stage of litigation,the judge should first accurately fix the trial object of the case.Although the target of litigation can prompt the legal focus of the case around the right of claim,it is too abstract to grasp the substantive content of the trial,and still can not provide a clear and concrete boundary for the litigant’s lawsuit attack and defense.Although the concept of litigation claim can point to the specific content of the claim,it also covers the relationship with the constituent elements.In recent years,the popular "one-yuan theory" which makes the target of the lawsuit synonymous with the lawsuit claim can not solve the above contradiction.The position of this paper is to further define the trial object accurately from two aspects,on the basis of maintaining the identification function of the entity rights of the old substantive law theory of the litigation object,combined with the provisions of Article 122 of the Civil Procedure Law.The first is the clarification of litigation claims.It includes clarifying the specific content,nature and realization way of the lawsuit claim,and eliminating the obviously absurd and improper lawsuit claim in the process.The second is to realize the locking function of the lawsuit request through the essential fact.Different entities’ right of claim may be based on the same legal basis,but no matter whether the right of claim basis is the same or not,the specific constitutive elements will not be completely the same,and the parties’ reasons for the request will be different.Therefore,the lock-in claim should be realized in combination with the facts of the cause of the claim.By means of litigation claim +minimum essential facts,the target of litigation can be concrefied in the case,so as to form a more clear trial object.From the perspective of the relationship with litigation claims,legal elements can be divided into right occurrence elements,right impediment elements and right elimination elements.In the process of litigation,the plaintiff must claim the facts of the cause of the claim that meet the requirements of the occurrence of rights in order to support his claim.Correspondingly,if the defendant rejects the fact of claim cause as the cause of legal effect due to the existence of another fact for the plaintiff’s claim and the fact of claim cause,the "other fact" is the defense fact.It is precisely with the main line of the exclusion effect of the later element facts on the prior element facts,namely,the reason for the request-defense-re defense,that the basic structure of litigation attack and defense is established.It can be seen that the claim of responsibility requires the parties to claim the facts of the elements corresponding to their own favorable legal elements,otherwise they will bear the corresponding adverse consequences.Including the trial object,the fact claim,etc.,the internal power of the formation of the litigation entity is to claim responsibility.As the object of claiming responsibility,the essential facts should be presented concretely.The theory of element facts distinguishes legal elements into evaluative elements and factual elements from the perspective of the certainty of the expression of normative meaning.Because the evaluative elements do not meet the requirements of specificity and concreteness,they cannot be directly the object of trial,the parties must claim the corresponding specific element facts.However,it is a question worthy of further study that to what extent the essential facts should be advocated is appropriate.Therefore,we should comprehensively consider the promotion of litigation attack and defense,the prohibition of sudden judgment,the parties’ mastery of evidence,the difficulty of proving important facts,the strength comparison of the parties’ substantive litigation capacity and other factors to judge.Under the requirement of asserting responsibility,the parties put forward essential facts around the trial object,and at the same time,under the basic framework of confrontation with essential elements,realize the technicalization of litigation attack and defense.In addition to the technicalization of the process,the essential facts as the object of identification help to clarify the significance of the burden of proof.The proof of essential facts in a complete sense includes two levels: one is the proof of the existence of the case facts;The second is to prove the relationship between the facts of the case and the normative elements,which can also explain the hierarchy of the meaning of the burden of proof.In judicial practice,from the perspective of the behavioral significance of the burden of proof,the practice circle regards it as a judgment method to urge the parties to put forward evidence as much as possible,and resolve the ambiguity of facts caused by the lack of evidence.As for the unfair distribution of interests of litigation entities that may be caused by difficulties in adducing evidence,it is mainly solved by reducing the burden of proof.From the perspective of essential facts,it can be classified into three ways: first,do not change the content of essential facts,but change the subject of proof(the essence is the inversion of the burden of proof);Second,it does not change the content of the essential facts,but reduces the requirement of proof(the obligation to clarify the case and proof hinders sanctions);The third is not to change the subject of persuasion of the facts of the elements,but to change the specific content of the proof of the facts of the elements(proof by estoppel,presumption of fact).However,in order to avoid the risk of losing a lawsuit,such parties are only "derivative functions" of the burden of proof when they provide evidence against a specific fact to prove their claims.The problem that the burden of proof intends to solve is the responsibility of persuasion generated by one party when connecting or attributing the facts of a case to a certain legal element.Under the condition that the authenticity of the essential facts is unknown,the conclusion that the norms are not applicable cannot be directly deduced simply according to formal logic.Instead,the essential facts should be formulated as either true or false through the intervention of the burden of proof norms,thus laying the foundation for the correct application of legal norms.With the help of the theory of essential facts,it is helpful to correctly understand and apply the provisions of Article 91 of the Judicial Interpretation of the Civil Procedure Law.The underlying logic of the theory of essential facts is exactly the allocation of risk of losing a lawsuit contained in the burden of proof.According to the viewpoint of normative theory,there will be three defects in the judicial function of substantive law in China: First,the repeated provisions of substantive law lead to conflicts in the rules of litigation risk distribution;Second,the provisions of judicial interpretation on the allocation of risk of losing a lawsuit in a certain type of case lack sufficient reasons;Third,the provisions of substantive law are simple and difficult to derive clear rules for the allocation of litigation risk.Normative theory,rooted in legal positivism,can not effectively adapt to the changes of the times of social development,but also has some logical defects.To this end,the substantial interpretation method is introduced through the theory of the essential facts,with the goal of accurately identifying and selecting the essential facts from the legal elements,and determining the order of the persuasion responsibility of the essential facts.The three dimensions are considered from the purpose interpretation based on the normative system of substantive law,the verification based on other interpretation methods,and the procedural law factors based on the fairness of proof,so as to ensure the certainty and fairness of litigation risk distribution.To be specific,first of all,starting from the specific purpose of substantive law norms,the text and structure of legal provisions are systematically analyzed.In this process,special attention should be paid to exploring the purpose of norms from legal principles,and reshaping the expression mode and normative structure of substantive law provisions by identifying important facts.Secondly,the normative purpose obtained from legal principles can be verified by other interpretation methods such as legislative original intention interpretation,system interpretation,comparative law interpretation,etc.,and its correctness can be verified by whether they can be mutually supported.Finally,considering the fairness of proof,if the statement of the provisions and the structure of the norms previously obtained will cause difficulties in proof of typology or universality,which will lead to the failure of the purpose of the norms,then we should carefully consider whether to continue to maintain the previous conclusions.In this process,we should not regard the factor of difficulty in adducing evidence as a completely independent consideration factor that has nothing to do with the purpose of the normative system.Instead,we should consider how to determine the expression way of determining the normative elements of substantive law from the perspective of the most appropriate realization of the normative purpose,so as to accurately determine the facts of the elements and achieve fairness and justice in adjudication. |
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