Abstract
This paper analyzes legal fact-argumentation in the framework of the argumentation-based litigation game (ALG) by Xiong (Leg Sci 370(9):16–19, 2012). Rather than as an ontological one, an ALG treats a legal fact as a fact-qua-claim whose acceptability depends on the reasons supporting it. In constructing their facts-qua-claims, parties to an ALG must interact to maintain a game-theoretic equilibrium. We compare the general interactional constraints that the civil (a.k.a. ‘continental’) and common law systems assign, and detail what the civil, administrative, and criminal codes of mainland China require of the suitor (S), the respondent (R), and the trier (T) to establish their respective S-, R- and T-facts. We also offer an improved version of the legal syllogism.
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Notes
Private conversation with Professor Zhang Baosheng at the Conference on evidence and fact: The dialogue between philosophers and jurists, November 2015, Shanghai, China.
Most informal logicians focus on arguers as agents. By contrast, formal logicians (who use theories of logical syntax and semantics to evaluate arguments) did only more recently concern themselves with who argues, for their argument-concept has traditionally reflected the zero-agent category. But see, e.g., van Benthem (1996, 2009, 2014), and work on argumentation in AI and game theory now providing parallel tracks in argumentation and logic.
Familiarity with these cases may be presumed among virtually all Chinese legal scholars. Charged with murdering his wife Zhang Zaiyu, She Xianglin was, in 1994, sentenced to 15 years imprisonment. But in 2005, an unharmed Zhang Zaiyu returned to her home. In the next case, the defendant Zhao-Zuohai, having, in 1999, been accused of murdering Zhao-Zhenxiang, was sentenced to death, and a two-year suspension of the execution being pronounced simultaneously. But in 2010, Zhao-Zhenxiang reappeared, unharmed. In the Teng-Xingshan case, in 1988, Teng was sentenced to death for the murder of Shi-Xiaorong, and was executed immediately. But in 2004, Shi was found to be alive. Finally, in 1996 and 1995, Huge and Nie were on independently sentenced to death for murder, and executed immediately. But it later appeared that others had committed the murders they were charged with. In present-day China similar crimes would, typically in a two-year process, lead to imprisonment for life.
When defense attorney F. Lee Bailey cross-examined Fuhrman on March 15, 1995, he denied having even once uttered the term ‘nigger’ in the past 10 years. But on 29 August 1995, R played excerpts of interviews with Fuhrman, that screenwriter Laura H. McKinny had conducted between 1985 and 1994, in which he used the focal term 41 times. This established Fuhrman as being prone to racial bias, thus forcing him to plead his Fifth Amendment right (to withhold self-incrimination testimony). So when taking the stand on 6 September 1995, he refused to answer questions.
Zhang-Xueying v. Jiang-Lunfang (2001), NaXi Min Chu Shen Zi 561.
The Trial Regulations of Criminal Proceeding in the People’s Procuratorate, GanJian FaShiZi (2012), 2 Hao.
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Acknowledgements
The first author acknowledges funding from the Chinese MOE Projects for Key University Research in the Humanities and Social Sciences (No. 15JJD720014), the National Social Science Fund of China (No. 13AZX0017), and a Guangdong Province Pearl River Distinguished Professorship (2013). The second author acknowledges an “Understanding China”-Fellowship from the Confucius Institute (HANBAN), and funding through the European Union’s FP 7 framework program (No. 1225/02/03) as well as the Volkswagen Foundation (No. 90,531).
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Xiong, M., Zenker, F. Legal Facts in Argumentation-Based Litigation Games. Argumentation 32, 197–211 (2018). https://doi.org/10.1007/s10503-017-9438-6
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DOI: https://doi.org/10.1007/s10503-017-9438-6