The law of procedure is the body of rules that governs or provides the frame－work of the judicial process． The judicial process， in turn， guides the operation of courts in the determination of legal controversies， or， as a legal scholar defines it， the judicial process is the decision by the court of controversies between individuals （or between an individual and the State）by rational and not merely personal considerations supposedly based on law and justice．① These definitions are terribly inadequate， but they may serve our purpose if we understand from them the following points；（1）The judicial process deals not with abstract questions or hypothetical situations but with actual controversies between real parties；（2）These controversies are such that the community will direct its collective force to their resolution；（3）This resolution proceeds not arbitrarily but according to some standards of general application；（4）These standards are applied in a proceeding that follows some fixed lines set out by a system of rules known as procedure．② The rules of procedure are to the litigating lawyer regulatory and enabling legislation：③ They tell or attempt to tell him what the lawyer may and may not do， and they afford the means by which the lawyer can bring about， or attempt to bring about， the results sought． A distinctive element of the American procedure far resolving legal controversies is the adversary system， which is the characteristic form of trial procedure in common law countries， in civil as well as criminal cases． Its essential feature is that a decision is made by judge， or judge with jury， who finds the facts and applies the law from submissions made by partisan advocates on behalf of the parties．④ In this system of trial procedure， the responsibility for beginning suit， for shaping the issues， and for producing evidence rests almost entirely upon the parties． The court takes almost no active part． It does not do its own investigating． It rarely even asks a question． Most often it is only responsible for guiding the proceeding according to certain procedural rules and for making decisions on questions of law that arise． This system is to be contrasted with what is generally called the inquisitorial system， which is used in countries of the civil law tradition such as France and Germany． In the inquisitorial system of trial， the judge applies the law and finds the facts by his own active investigation and inquiries at trial． Under the adversary system， the scope of the lawyer's power and responsibility is wide． It is the lawyer who makes the initial and usually final decisions as to choice of court， size of claim， nature of claim stated， parties， extent and kind of pre－trial investigation， mode of trial （whether jury or non－jury）， settlement offers， extent and kind of proofs， style of presentation and argument， and， within limits， speed and vigor of presentation． The trials are largely produced and directed by the lawyers． They supply the actors and the script， through the witnesses called and the testimony elicited by direct and cross examination． Judges are called on to intervene only occasionally and then briefly， to ensure that all the procedural safeguards of due process⑤ are met and essential fairness is achieved． They rule on the admissibility of evidence， but this is a negative function of keeping out unreliable evidence rather than an affirmative one of providing the facts upon which a case is determined．⑥ The reasons for the prevalence of the adversary system are manifold， but four are certainly among the most important： （1） It is believed that a truer decision will be reached as the result of a contest directed by interested parties．⑦ An interested party naturally will be most effective in seeking， discovering， and presenting the materials which will reveal the strength of his own case and the weakness of his adversary's case； （2） The parties， who after all are the persons principally interested in the resolution of the controversy， should bear the major burden of the time， energy and costs required； （3） Although impartial investigation may be better when no final decision need be reached， setting up sides makes easier the type of yes－or－no decision that is thought to be necessary in a lawsuit；⑧ （4）Since resort to law has replaced resort to force that characterized primitive ages， the human instinct to do battle is better satisfied by a means of settling disputes that are very much in the hands of the parties． Contrasted with the methods of scientific or historical research， this system of finding answers to legal controversies seems sometimes unsatisfactory． When one reflects on the fact that under the adversary system victory often turns on factors other than the true merits of the case， there is reason to be skeptical about it．⑨ Critics of the adversary system point out that it tends to reduce litigation to a costly game， in which the lawyers become the principal players and the outcome will turn on their skills rather than the justice or true merits of the case． In recent times there has been a trend toward increasing the affirmative or active functions of the court that reflects the larger trend away from the "sporting" or "game" theory of litigation． Nonetheless， it cannot be questioned that in the United States the primary responsibility and control over almost all phases of the judicial process continue to reside in the parties． Full understanding of the American legal procedure will require our constant attention to the existence of the adversary system as well as critical analysis of its shortcomings．
发表于 2012-8-16 08:57:55
