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 knowledgeof 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.

Bibliography

Authored books

1. Holland J and Webb J, Learning Legal Rules. A Students’ Guide to Legal Method and Reasoning (8th edn, Oxford University Press 2013) (in English).

2. Bocharov D, Pravozastosovcha diialnist: poniattia, funktsii ta formy: Problemni lektsii [Application of Law: Definition, Functions and Forms. Lectures on Problem Topics] (AMSU 2006) (in Ukrainian).

3. Pil’kov K, Dokazatel’stva i dokazyvanie v mezhdunarodnom kommercheskom arbitrazhe [Evidence and Proof in International Commercial Arbitration] (Osvita Ukrainy 2016) (in Russian). 4. Shtefan M, Tsyvilnyi protses: pidruchnyk [Civil Proceedings: Handbook] (In Yure 1997) (in Ukrainian).

5. Skakun O, Teoriia prava i derzhavy: pidruchnyk [Theory of Law and State: Handbook] (2nd edn, Alerta 2010) (in Ukrainian).

Edited and translated books

6. Documents of the Consultative Council of European Judges. Dokumenty Konsultatyvnoi rady yevropeiskykh suddiv (Kavakin A uporiad, In Yure 2017) (in English and Ukrainian).

7. Schauer M and Verschraegen B (eds), General Reports of the XIXth Congress of the International Academy of Comparative Law (Springer 2017) (in English).

8. Bergel J-L, Obshhaja teorija prava [General Theory of Law] (Danilenko V red, Izdatel’skij dom Notabene 2000) (in Russian).

9. Mejer G, Voprosy fakta i prava na sude prisjazhnyh, v osobennosti o postanovke voprosov prisjazhnym [Qurstions of Fact and Law on the Jury Trial, in Particular on Raising Questions Before Jurors] (Tagancev N translator, Izdanie Zhurnala Ministerstva justicii 1866) (in Russian). 10. Posibnyk z napysannia sudovykh rishen u tsyvilnomu i kryminalnomu sudochynstvi [Handbook on Drafting Court Decisions in Civil and Criminal Jurisdictions] (Vaite 2016) (in Ukrainian).

11. Russell B, Istoriia zakhidnoi filosofii [A History of Western Philosophy] (Osnovy 1995) (in Ukrainian).

12. Russell B, Problemy filosofii [The Problems of Philosophy] (Respublika 2000) (in Russian). 13. Vasyliev A (red), Teoriia prava i derzhavy: pidruchnyk [Theory of Law and State: Handbook] (KNT 2010) (in Ukrainian).

Dictionaries

14. Garner B, Black’s Law Dictionary (9th edn, West 2009) (in English). 15. ‘Question of Law’, West’s Encyclopedia of American Law (2nd edn, 2008) <https://legal-dictionary.thefreedictionary.com/Question+of+Law> (accessed: 17.07.2020) (in English).

16. ‘Question of law’, Wex legal dictionary and encyclopedia by the Legal Information Institute at the Cornell Law School <https://www.law.cornell.edu/wex/question_of_ law> (accessed: 17.07.2020) (in English).

17. Meshherjakov B and Zinchenko V, Bol’shoj psihologicheskij slovar’ [Big Psychological Dictionary] (3rd edn, Prajm-Evroznak 2002) (in Russian).

18. Slovnyk ukrainskoi movy [Ukrainian Language Dictionary], t 1 (1970) (in Ukrainian).

19. Slovnyk ukrainskoi movy [Ukrainian Language Dictionary], t 8 (1977) (in Ukrainian).

Journal articles

20. Allen R and Pardo M, ‘The Myth of the Law-Fact Distinction’ (2003) 97 Northwestern University Law Review 1769–807 (in English).

 21. Edmonds Ch, ‘Appeals from Discretions, Satisfactions and Value Judgments: Reviewing the House Rules’ [2017] 41 (2) Melbourne University Law Review 1–42 (in English).

22. Craig P, ‘Judicial Review of Questions of Law: A Comparative Perspective’ in Susan Rose-Ackerman and Peter L Lindseth (ed), Comparative Administrative Law (Edward Elgar 2010) (in English).

23. Gomez Ch, ‘Vexed and Perplexed. Reviewing Mixed Questions of Law and Fact’ (2018) 3 Appeal Colorado Lawyer 24–30 (in English).

24. Griffin L, ‘Judging During Crises: Can Judges Protect the Facts?’ (2020) 50 Loyola University Chicago Law Journal 857–77 (in English).

25. McGinnis J, Mulaney Ch, ‘Judging Facts Like Law’ (2008) 25 Constitutional Commentary 69–130 (in English).

26. Thayer J, ‘“Law and Fact” in Jury Trials’ [1890] 4 (4) Harvard Law Review 147–75 (in English).

27. Thomas J, ‘Likelihood of Confusion Under the Lanham Act: A Question of Fact, a Question of Law, or Both?’ [1984] 73 (1) Kentucky Law Journal 235–53 (in English).

28. Warner R, ‘All Mixed Up about Mixed Questions’ [2005] 7 (1) The Journal of Appellate Practice and Process 101–49 (in English).

29. Warvelle G, ‘The Jurors and the Judge’ [1909] 23 (2) Harvard Law Review 123–31 (in English).

30. Budylin S, ‘Vopros prava ili vopros fakta? Dokazyvanie i kassacija’ [‘Question of Law or Question Fact? Proof and Cassation’] (2014) 2 Vestnik FAS Ural’skogo okruga (in Russian).

31. Chertova N and Jurinskaja I, ‘Mehanizmy prinjatija sudebnogo reshenija: teoreticheskie aspekty’ [‘Mechanisms of Making a Court Decision: Theoretical Aspects’] (2015) 3 Vestnik Severnogo (Arkticheskogo) federal’nogo universiteta. Serija: Gumanitarnye i social’nye nauki (in Russian).

32. Pilkov K, ‘Umovy obov’iazkovosti dlia hospodarskoho sudu faktiv, vstanovlenykh v inshii spravi’ [‘Preconditions for Preclusive Effect of Issues Determined in the Other Case’] (2019) 11 Pidpryiemnytstvo, hospodarstvo i pravo. DOI https://doi. org/10.32849/2663-5313/2019.11.17 (in Ukrainian).

33. Pilkov K, ‘Vlastyvosti dokaziv ta kryterii yikh otsiniuvannia’ [‘Properties of Evidence and Their Evaluation Criteria’] (2020) 4 Pidpryiemnytstvo, hospodarstvo i pravo. DOI https://doi.org/10.32849/2663-5313/2020.4.14 (in Ukrainian).

34. Movchan Ju, ‘Travaux préparatoires v praktike mezhdunarodnyh sudebnyh institucij’ [‘Travaux Preparatoires in Jurisprudence of International Jurisdictional Authorities’] [2015] 5/2 (15) Jurnalul juridic national: teorie şi practică (in Russian).

35. Romaniuk Ya, ‘Vstanovlennia faktychnykh obstavyn spravy yak persha stadiia pravozastosuvannia v tsyvilnomu protsesi’ [‘Determination of Facts of the Case as First Stage of Applicat of Law’] [2016] 6 (2) Jurnalul juridic national: teorie şi practică (in Ukrainian).

36. Savenko M, ‘Suddivskyi rozsud u tsyvilnomu protsesi’ [‘Discretion of a judge in civil proceedings’] (2004) 26 Naukovi zapysky. Yurydychni nauky: zbirnuk naukovykh prats (in Ukrainian).

37. Tsukanov N, ‘K voprosu o sushhestvovanii neoproverzhimyh pravovyh prezumpcij’ [‘On the Existence of Irrefutable Legal Presumptions’] [2020] 17 (1) Sibirskoe juridicheskoe obozrenie 22–9. DOI: 10.19073/2658-7602-2020-17-1-22-29 (in Russian).

Conference papers

38. Pilkov K, ‘Standart dokazuvannia yak skladova zabezpechennia prava na spravedlyvyi sud’ [‘Standard of Proof as Element of Guaranty of the Right to a Fair Trial’] v Implementatsiia mizhnarodnykh standartiv u tsyvilne ta hospodarske sudochynstvo Ukrainy [Implementation of International Standards in Civil and Commercial Court Proceedings of Ukraine] (NDI pryvatnoho prava i pidpryiemnytstva imeni akademika F. H. Burchaka NAPrN Ukrainy 2019) (in Ukrainian).

Websites

39. Batrouney J, ‘The Distinction Between Questions of Fact and Questions of Law in Section 44 Appeals to the Federal Court’ (Federal Court of Australia, 20.05.2014)<https://www.fedcourt.gov.au/digital-law-library/seminars/tax-bar-association/ jennifer-batrouney> (accessed: 06.07.2020).

40. Craig P, ‘Law, Fact and Discretion in the UK, EU and the USA’ (SciencesPo, 2007) <https://www.sciencespo.fr/chaire-madp/sites/sciencespo.fr.chaire-madp/files/paul_ craig.pdf> (accessed: 06.07.2020) (in English).

41. Rothstein P, ‘Demystifying Burdens of Proof and the Effect of Rebuttable Evidentiary Presumptions in Civil and Criminal Trials’ (Georgetown Law’s Scholarly Commons, 2017) <https://scholarship.law.georgetown.edu/facpub/2001> (accessed: 6.08.2020) (in English).

42. Bushchenko A, ‘Nesprostov(a)ni prezumptsii. Chy rozumno posylatysia na tsytatu YeSPL pro rozumnyi sumniv?’ [‘Unrebutted Presumptions. Is it Reasonable to Cite ECtHR on Reasonable Doubt?’] (Zakon i Biznes, 25.07–31.07.2020) <https://zib.com. ua/ua/print/143749-chi_rozumno_posilatisya_na_citatu_espl_pro_rozumniy_sumniv. html> (accessed: 04.07.2020) (in Ukrainian).