Study Of The Principle Of Free Evaluation Of Evidence

Fact-finding and applying the law is the two steps in resolving the criminal cases. The former is the basis. To find the fact in modern criminal procedure, we must have recourse to the evidence. So, the rule of the evidence is important in the procedural law. During the course of the fact-finding, the way of evaluating evidence and find the fact is the key question. Now, the most countries in the world choose the free proof as the way of evaluating evidence and find fact. This is the topic of my dissertation.Free proof, also can be called inner conviction, means the fact-finder can evaluating the weight of the evidence freely according the conscience and reason, and at last he can confirm the fact until he truly believe he find the truth in his heart.This dissertation is comprised three parts and eight chapters besides introduction and conclusion.The first part is about the history and the contemporary system in the most foreign countries, including the first and the second chapter.Chapter 1 deals with the history of free proof including the statutory evidence system, the original free proof during Roman etc. periods, the establishment of free proof and the development of free proof in civil law system. In addition, the author introduces the different development of evidence evaluation principle in England from early period to the modern.Chapter 2 deals with free proof in the civil law system and Anglo-American law system. The author focuses on the legislation of free proof in civil law system including France, Germany, Russia, Italy and Japan. For U.K and America, jury deliberation and the jury instruction are the points. The author thinks that thecontemporary free proof has been different with the modern one. It is the relatively free proof under the restriction of the certain rules, and the inner conviction should be established on the basis of the objectivity. Because of the difference of the litigation mode, there are two types of free proof that is the free proof under the mode of inquisitorial system and the free proof under the mode of adversary system.The second part is about the theory analysis, basic contents and the outer restrictions of free proof, including the third to sixth chapter.Chapter 3 deals with the relationship between reason and free proof, procedural justice and free proof, the principle of conviction based on evidence and free proof from the macroscopical point of view. Reason is the integrated abilities of personal right, free will and pursuing the truth. It is the basis of free proof. The core of procedural justice is to restrict the power and protect the rights, and it can safeguard and justify the free proof. The principle of conviction based on evidence and free proof are the fundamental principles of evidence law.Chapter 4 and Chapter 5 deal with the four elements of free proof: the trier of the fact, the weight of evidence, experience rule and logic rule, and the inner conviction (the result of free proof). In civil law system, the professional judge is the main trier of the fact, and in Anglo-American law system, the jury is the main trier of the fact. Free proof is focuses on the fact-finding. During the fact-finding, the trier must following the experience rule and logic rule. The result of free proof should accord with the standard of evidence.Chapter 6 deals with the guarantee and restriction of free proof, including justice system, procedural system and evidence rule. The concrete systems are: judicial independence, withdrawal system, collegial system, prejudice excluding mechanism, evidence investigating system and retrial procedure etc.The third part is about the history of Chinese evidence evaluation system and the construction of free proof in China, including the seventh and the eighth chapter.Chapter 7 deals with evidence evaluation system in slavery, feudal society and after 1840. China has the tradition of "Wu ting" which has the characteristic of free evaluation. After 1840, free proof was first prescribed in the 1910 Qing Dynasty Criminal Procedural Law. After the foundation of P.R.C, the law has not regulated it.Chapter 8 deals with the construction of free proof in our criminal procedural law. The author thinks free proof accord with cognition law and we should establish it in our criminal procedural law. Of course we should regulate the correspondent measures about procedural restriction and evidence rule etc.