| In civil tails, judges face mainly two questions, i.e. questions of fact and questions of law. Questions of fact are in fact questions of evidence, which include questions relating to the investigation and collection of evidence, evaluation of evidence and allocation of burden of proof. In the early 1990', China initiated its reform of form of trail by intensifying litigant's burden of proof.?As a solution to the problem of so few judges handling so many cases and the piling up of pending cases, intensification of litigants' burden of proof was originally aimed at extricating courts from the increasingly serious burden of investigating and collecting evidence.?Up to now, the reform of the form of tail has been fruitful, but it still faces a great many problems.?In order to push forward the reform, China must renovate its present system of evidence. As the stipulations on evidence in China's present civil procedure law are chiefly norms in principle, it is difficult to unify operation in trails. What's more, in the course of the reform of the form of trail, most local courts formulated their own more practicable evidence rules or civil procedure rules, which has resulted in the more serious nationwide in consistency in the operation of the system of evidence.?For these reasons, the Supreme People's Court of the PRC promulgated "Provision on Evidence in Civil Action", which not only brought an end to the confusion hi the operation of the system of evidence, but also gave directions as to how to investigate and collect evidence, how to evaluate evidence and how to instruct litigants to produce evidence. These Provisions promulgated by the Supreme People's Court of the PRC can be said to be a positive result of the reform of the form trail and the enforcement of these Provisions will further advance the reform the form of trail. As the fundamental purpose of the reform(1) The "litigants' burden of proof' mentioned here refers to litigants' burden of producing evidence. At first,shouldered the whole burden of investigating and collecting evidence, but later the burden of proof wasshifted on to litigants. Article 56 of "Civil Procedure Law of the PRC for Trail Implementation " stipulatedthat "the people's court shall, in accordance with the procedure prescribed by the law, collect and investigateevidence comprehensively and objectively ".(2) See also Ting Han-chao and Lu Zi-juan(1997) "An Analysis of Certain Problems Relating to the Reformof Economic Tail," Cass Journal of Law (Beijing), No. 5(3) As regards the misconceptions about the reform of the form of trail, especially about the reform of thesystem of evidence, see also Huang Song-you(2000) "Gradual Chang and Transition: A Quiet reflection onthe Reform of the Form of tail," Modern Law Science (Chongqing), No. 4.(4) See also Wang Li-ming, Jiang Wei and Huang Song-you (eds)(2000) "A study of China's Legislation onCivil Evidence and Its Application," Publishing House of People's Courts (Beijing).of the form of trail is justice, which is predicated on the finding out of utmost objective reality, whether the system of evidence is reasonable, sound and scientific has direct influence on the achievement of this purpose. If the admissibility of evidence system specifies judge's discretion on judges' right to have a proper judgement on the weight of evidence in accordance with logic and empirical rules and thus hinder the finding out of the utmost objective reality of some complicated cases. Generally speaking, the quality, moral character and conduct and professional knowledge and ability of China's judge are greatly below the ideal requirement. If no restrictions are placed on judge's discretion in evaluating evidence, then abuses of discretion are unavoidable and the purpose of finding out the utmost objective reality is hard to achieve.Therefore, we must always take into consideration the actual conditions of China when we are studying the admissibility of evidence system so that we can formulate an admissibility of ev... |
PDF Full Text Request