Free Evaluation Of Evidence Study

Free proof is the fundamental way for judge's confirmation of facts in modern civil litigation. The system of free proof is the system of principle with the respect to confirmation of facts in modern countries with sound legal system. To secure the reasonableness for confirmation of facts, the power of evaluating the evidence freely must be vested with judges, at the same time; this power hereof should be instructed and checked comprehensively. Under this doctrine, civil law countries and common law countries construct their own system of free proof respectively. The system of free proof is the core in evidence system, which decides other evidence systems more or less. The system of free proof was misunderstood historically and lack of in-depth research theoretically, which leads to confusion and doubt of many people in real life. This dissertation focuses on system of free proof, analyze and prove history of evidence evaluation system, the development of system of free proof in civil law countries, construction of system of free proof in China and reasonableness of free proof, in order to expand the fruits for our evidence system study, provide some theoretical support for our civil procedure legislation and instruct our practice in court. This dissertation is comprised of four parts beside introduction and conclusion.Chapter I deals with the history of our evidence evaluation system. Firstly, it studies the theoretical basis and result of our evidence evaluation system in our history before 1840. Secondly, it analyzes our system of free proof after 1840. In the author's view, "Wu Ting" in our slavery society is an evidence evaluation system with abundant legal meaning which combines objective evidence and physiological activities. In the feudal society, "Wu Ting" was succeeded and developed. In our slavery and feudal society, the evidence evaluation is characterized on free judgment of arbitrator. This kind of free judgment was checked by evidence evaluation, strict official system and other statute law and case law. The author points out that our historical evidence evaluation pays enough attention to the application of physiology which promotes discovery of objective truth, alleviates the difficulty of proof and limits the free judgment. This dissertation also deals with evidence evaluation system from Qing dynasty to MingGuo which establishes the principle of free proof. From the history of our evidence evaluation system, the following conclusion may be made: 1) the way of evidence evaluation in our history is based on the free judgment of arbitrators and restricted by various rules; 2) the arbitrator plays an active role in confirmation of facts; 3) the evidence evaluation system promotes finding the objective truth, alleviating the difficulty of proof and preventing the potential disputes; 4) our evidence evaluation system after 1840 adopted civillaw countries finally which is the inevitable result of influence of our traditional evidence system; 5) case law gives full scope to instructing the fact confirmation.Chapter II focuses on the research of history development and theory of free proof system in civil law countries, which purposes to provide realistic reference and theoretic support. This chapter begins with the introduction of free proof and statutory evidence in early civil procedure in civil law countries which includes classic free proof system and statutory evidence system in Roman period. The early free proof and statutory evidence in civil law countries set the tone for cannon law and capitalist revolution. In the author's view, the free proof in civil law countries can be traced back to statutory litigation and formality litigation period of the Roman. The free proof then was relatively free proof under the restriction of certain rules. Secondly, this dissertation analyses the statutory evidence system in the late Middle Ages, in which relatively simple social environment, feudalism, distrust for judges and cannon civil procedure lead to the engender of statutory evidence system and do...