| In the long history of the dynamic operation and development of the adversary system,the identification of main facts,as a delicate part of litigation operations,often radioactively links various aspects of issues,such as the application of extent of liability,the objective scope of the binding of confession,the discretional evaluation of evidence of the judge and the balance of the defense right of the parties.However,the distinction between main facts and indirect facts is not accurate,but there is some ambiguity.Therefore,there are many legal dilemmas that need to be resolved not only in academic research fields that are confined to adversary system,but also in judicial practice debates.This is also one of the main reasons for civil prosecution scholars represented by Japan to start academic discussions and try to clarify the boundary between the main facts and indirect facts.The author will base on thinking-oriented writing logic,under the background of the proposition of "the demarcation between main facts and indirect facts",the author will draw out and analyze the real problems through the divergent thinking path from the inside and the outside,including the application of extent of liability,the range of the binding of confession,and the re-examination of the validity of the traditional understanding of adversary system.In addition to the introduction and the conclusion,this article is about 45,000 words,mainly composed of four parts,which are to put forward the question,clarify the meaning of the boundary between main facts and indirect facts,investigate the theories related to the boundary datum and discuss the case,and establish the path conception of the boundary datum between main facts and indirect facts.The first part is the questioning.The author will explain the theoretical and practical dilemmas caused by the ambiguity of the boundary criterion,which is also the foothold and key point of this article’s problem-solving.It is precisely because the change of the main fact and the indirect fact demarcation criterion can affect the important links such as the scope of the first and second propositions of adversary system,the discretional evaluation of evidence of the judge,and the rebalancing to surprise trial.There are still many problems to be solved in the above-mentioned important links of the traditional demarcation benchmark.From this,it can be deduced that the traditional adversary system is probably not completely proper and reasonable,and it should be clarified and revised.The second part is to clarify the significance of the main facts and indirect factsdemarcation benchmark.The second part is like the "prism" of the first part,that is,the value and significance of the problems in the first part are analyzed and discussed in combination with judicial practice and basic theory.Based on the application of basic theoretical knowledge and the dynamic development trend of litigation operation,this paper focuses on the two perspectives of adversary system amendment and litigation process,and seeks legal basis and realistic basis for the solution of the ambiguity of the application of liability and the rigidity between the main facts and the indirect facts,it also provides new ideas for the construction of a modern court theory in China.The third part is the investigation of the related theories of the main facts and the indirect facts.From the perspective of comparative law,taking the judicial and academic research results of Japan as a mirror,in accordance with the development order of Japanese jurisprudence and doctrine history,and combined with a dynamic review of the replacement of the adversary system,this article makes theoretical investigation and relevant induction enlightenment on the proposition of "the boundary between main facts and indirect facts".The fourth part is the conception of the path to establish the benchmark between the main facts and the indirect facts.The author will clarify the boundary between the main facts and the indirect facts,and use legal research methods such as the method of law hermeneutic and value measurement to make systematic planning and path conception one by one for the problems raised in the first part.At the same time,the author tries to find the "optimal solution" and feasible scheme for the application of extent of liability related to the main fact and the indirect fact boundary criterion,the revision and abdication of the traditional adversary system,and grasping the exertion of the right to interpret the law in order to find a new approach towards the revolution of trial mode in China. |
