| Abstrakt: |
Categories of the question of law and the question of fact have flown into Ukraine's procedural legislation from the doctrine of common-law legal systems and are fixed in the law application theory along with the traditionally used concepts of factual circumstances, legal qualification and application of the provision of law. At the same time, the criteria for differentiation of these questions, which is fundamental to the law application theory and judicial practice, still remain rather vague. Similarly, the nature of some issues resolved by courts in the course of court proceedings, in particular, nature of judicial discretion, use of evaluative categories in legal qualifications, establishment of the content of a foreign law provision etc., is not clearly defined in the context of referring them to the questions of law or fact, and therefore, it also remains unclear to which extent courts, while reviewing court judgments, may intervene into the decision-making on these issues. The purpose of the article is to analyze the approaches to differentiation of the questions of law and fact in the context of law application in court and, based on the results of this analysis, to offer satisfactory criteria for such differentiation; the article also aims, with the use of these criteria, at attempting to refer to the questions of law or fact the law application issues which so far have been recognized as mixed ones by nature. The article examines the origins of the division of law application issues into the questions of fact and law in the common law tradition, as well as some approaches typical of the continental systems. The author outlines the functional approach to their differentiation by the criterion of the subject -- a judge or a jury -- which decides on a particular issue, as well as by the standard of reviewing the decisions on these issues applied by higher courts. It is pointed out that these criteria are unsatisfactory, as they are rather derivative, or even logically loopbacked. The author proposes the approaches of differentiation by the formal logic criterion according to which answers to the questions of law is the knowledge of historical facts which is probabilistic and is accepted as true as a result of inductive inference obtained with a probability consistent with the standard of proof adopted by the court, and answers to the questions of law are formulated on the basis of the court's knowledge of law which is irrefutably presumed, has a non-probabilistic character and, in the formal logic categories, is a larger base in deductive inference, with another base being the answer to the questions of fact, if we are talking about application of law in a narrow sense, or the answer to the question of law, if we are talking about interpretation of the provision of law. The article demonstrates how the same question can be the question of fact or the question of law, depending on whether the answer to it takes into account the provision of law. The author substantiates the concept of stages in court law application: from allegations of facts, via establishing the legal nature of the alleged relationship and determining the appropriate proof that circumstances of the case exist, to establishing these circumstances based on proof, final legal qualification of the established circumstances and application of the consequences provided for by the applicable provisions of law. The article also offers the approach for formulating the legal opinion in a court judgment. Furthermore, the article attempts at qualifying the so-called mixed issues of judicial discretion, use of evaluative categories, establishment of the content of a foreign law provision, and interpretation of a contract in the categories of the questions of law and fact. [ABSTRACT FROM AUTHOR] |
