TOLES阅读：制衡机制.docx

The Adversary System in the American Judicial ProcessThe 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.2The 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 contro？versies 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 ap？plies 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 par？ties. The court takes almost no active part. It does no