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A Study On Free Evaluation Of Evidence

Posted on:2006-05-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z W QinFull Text:PDF
GTID:1116360155963825Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Free evaluation of evidence is an evidence-evaluation principle widely adopted by many countries. However, due to various reasons, there are some misunderstandings toward this principle in China, which also influences the process of judicial rationalization negatively. Research in this subject is of great importance in correcting false concepts and promoting the judicial reform of criminal litigation in China. The dissertation contains 9 chapters in addition to a preface.Chapter 1 focuses on methods of proof adopted in dispute resolution before the establishment of modern free evaluation of evidence in Continental Europe. European legal tradition has two branches: Roman Law and German Law. Both of them ever developed their early forms of free evaluation of evidence during their evolution, but they were replaced afterwards. The recovery of Roman Law and formation of Cannon Law in the Middle Ages resulted in the appearance of regulated proof which was then established in all secular states through the penetration of Roman Law and Cannon Law. Compared with duels, judgment rendered by God and other irrational dispute resolutions, regulated proof was an important step toward the direction of rational proof in the history of judicial system.Chapter 2 discusses the establishment and development of modern free evaluation of evidence. The British judicial system developed along a different route from that of Continental Europe since 13th century. As the jury evolved from the state of being informed to the state of ignorance, Britain became the first country toestablish modern free evaluation of evidence. France was the first to established free evaluation of evidence in modern sense in Continental Europe after its revolution. In the second half of 19th century, free evaluation of evidence got the position of dominance in Civil Law countries. Legal reform in the early 20th century introduced free evaluation of evidence into China. The reasons for the replacement of regulated proof by free evaluation of evidence are: revolution in evidence law incurred by the development of science; transformation in concepts of knowledge; the function of ideology; the disadvantages of regulated proof exposed in practice; and the exemplary role played by British Law. Key points of free evaluation of evidence include free evaluation of competence; free choice of proof approaches; free judgment of probative value and subjective criteria of proof. Because of the differences in historical traditions and actual conditions, the free evaluation of evidence modes in common law countries and civil law countries are different in many aspects, such as the subjects of free evaluation of evidence; criteria of its formation; the correspondence and stability of the proof; the influence of exclusionary rules on proof; its functions of judicial mechanism; the influence of file on proof; the extent of concentration of its formation; the role played by trier of facts in its formation and checking mechanism after its formation, etc. Since French revolution established free evaluation of evidence, the generate tendency thereof in civil law countries has been to evolve from ideology to institution and realize the objective characteristic of proof on condition that the freedom of judges is guaranteed. Meanwhile, since protection of human rights attracts more attention, the scope of function of free evaluation of evidence as a truth-seeking mechanism is restricted.Chapter 3 briefly discusses several main schools of philosophy since World War 2 and reveals the transformation in the theory of knowledge. Their primary characteristic is to critically review the rationalist and dualistic subject-object division established by former philosophy and put more emphases on the role played by emotional factors in knowledge and argue that the essence of knowledge lies not in correspondence with object, but in its usefulness. At the same time, they questionthe general applicability of knowledge and contend that knowledge is merely some common sense in a community or thoroughly exclude any possibility of common sense. The above-mentioned transformation is the theory of knowledge to concept of uncertain knowledge. This poses a great challenge to free evaluation of evidence, especially rationalist and idea that the nutshell of knowledge lies in its correspondence with object on which free evaluation of evidence in continental Europe is based.Chapter 4 devises a new theory based on the reasonable elements extracted from various theories of knowledge, and based on it, probes further the feasibility and development of free evaluation of evidence. Knowledge should in essence accord with object, and man's capacity also makes the accordance possible. These have been proved by daily practice. Knowledge is acquired by bodies and irrational factors in their understandings experience and mentality will affect its outcome. The historical character of understanding inevitably makes man acquire it in a transcendental mode or framework of thought. Understanding also has public feature. Whether understanding is in accordance with object can only be examined by its effectiveness in practice. However, not the separate observation but socialized repetitiveness can ascertain whether a kind of understanding is correct. We name understanding which goes through repetitive ascertainment knowledge. It accords with object in general, but not all the time. Because understanding was all acquired in the past, its deviation from object can't be proved by bodies of the date. Provided its effectiveness is guaranteed, it can be defined as knowledge. If some knowledge loses its effectiveness as time goes by, so is its qualification for knowledge; on the contrary, some understanding, which is not repeatable at first, can get the qualification for knowledge if the understanding can be repeated. Rationalist is still the basic principle for human behavior, thus we can acquire relatively certain knowledge according with object, but it can't be absolute. Therefore, free evaluation of evidence is still a viable institution. However, the trend to uncertainty of knowledge pushes a further development of free evaluation of evidence, which manifests mainly in fields such as: study enforcement on formation of evaluation ofevidence; impossibility of absolutely correct thereof; taking repeatability as an important standard of reasonabiiity in evidence evaluation; strengthening the safeguard to justifiability and reasonabiiity of proof; and intensifying the objectivity of proof in some degree.Chapter 5 analyses the process of formation of proof. In response to the transformation in concept of knowledge, people's understanding on the formation of proof also goes through a shift from the rigid and absolute feature to flexible and relative one. In the past, the formation of proof was regarded as orderly combination of evidence and pure formation of facts, which had nothing to do with law. This opinion is inappropriate. For formation of proof is formation of facts under the guidance of law, meanwhile the provision of law can obtain its specific meaning only under certain circumstances of facts. Thus, formation of proof is a process which is not only related with facts, but also the law. analyses on formation of proof fall into 3 modes: the first is Hypothesis testing. It supposes that trier of facts would put forward a somewhat credible hypothesis at the beginning of the formation or free evaluation of evidence, and confer certain Diagnostic value. On new evidence, Diagnostic value of new evidence times its primary values equals to a new degree of credibility. If the final value exceeds the standard of confidence, a guilty verdict can be rendered. This mode incurs many insurmountable difficulties and doesn't accord with judicial practice. The second is the story model which regards story-invention as the core of the formation of proof. The body who formats the proof would consider several competing stories before making the final decision. Decisive factors for the survival of any version are coverage coherence and uniqueness. The third is Anchored narratives. This mode is similar to the story model in general. But general rules are regarded as supportive factors for story-narration. Only when the evidence supporting the story is based on common sense can its weight be guaranteed. Among there above-mentioned modes, the last two modes carry with them certain reasonableness. This is especially true for the third mode, which accords with the new theory of knowledge.Chapter 6 discusses factors which influence the formation of proof, the State of evidence evaluation, the standard thereof and the evaluation standard of proof reasonability.. These factors on one hand enable proof obtain some degree of certainty, on the other hand make proof somewhat flexible. As to the feature of free evaluation of evidence, it probes into accidents in the past, facts on which proof are based, are unlikely to be compared directly with the objective facts, thus it is difficult to make sure whether the former is in accordance with the latter directly due to the peculiarity of litigation. The certainly can Only be secured by the certainty of the process of understanding, i.e. the certainty of experience and common sense on which the formation of proof is based. Therefore, the standard of evaluation of evidence is the "conviction without doubt" in the view of subject, which includes both "Reasonable conviction" and "beyond the reasonable doubt". There are also two standards of reasonableness of proof: one is the repetitiveness of the result of proof; the other is the reasonableness of the process of its formation. The former is required by the knowledge featured of verdict; the latter enhances the acceptability of proof in this world filled with uncertainty.Chapter 7 discusses the security of the reasonableness of free evaluation of evidence comprehensive. It includes 4 key-points. First is the inner security of free evaluation of evidence, including rules of experiences logical rules> standard of proofs direct limitation on weight imposed by law, etc; second is pre-trial security of free evaluation of evidence, including exclusion of preview > capacity to proves reasonable judicial institution and trial court, etc; third is security of free evaluation of evidence during the trial, including reasonable principle of trial n burden of proofs inferences expert evidence institution, etc; forth is after-trial security of free evaluation of evidence, including rational explain of verdicts appeal and retrials liability of judges, etc.Chapter 8 retrospects the discussions on free evaluation of evidence in China since 1950s, and points out the two main reasons for the denial of free evaluation of evidence: one is to impose political meaning on academic issues, the other is the lack of insight into free evaluation of evidence. The author lists three reasons for ouradmission of free evaluation of evidence: the first reason is that free evaluation of evidence is a method of evaluating evidence which already exists in judicial practice; the second one is that the admission of free evaluation of evidence can promote the institutionalized security of the freedom of proof; the third one is that the admission is helpful to establish reasonable checking mechanism in order to prevent the abuse of proof.Chapter 9 elaborates the relation between free evaluation of evidence and the reform of China's criminal justice. It first discusses 3 core issues of our evidence system: standard of proof, approach of proof and practical examination of evidence-evaluation, together with the distortion of free evaluation of evidence. The author points out that the existence of our approach of proof is somewhat reasonable under present circumstances in China, but the existing problems require reform under the guidance of free evaluation of evidence. Meanwhile both the standard of proof and the practical examination of evidence-evaluation have their own problems and should be improved. In respect of the distortion of free evaluation of evidence, the author points out the confliction between rule of law and sensibility is the intrinsic reason of distortion. Such distortion in China obviously manifests as the principle "in dubio, pars mitior est sequenda". One resolution is to absorb reasonable sensibility and sets some exceptions while carrying out the rule of law. Then it discusses several aspects in our criminal justice which need urgent reform in order to secure the reasonableness of proof, including relative stability of the rule of experience, independence of judiciary branch, essentialization and justification of court-trial, fortification of the statement of reasons in verdicts, etc. As to the application of empirical principle, the author proposes the following ways: reasonable application of fact presumption, establish case law and presumption of law.
Keywords/Search Tags:Criminal Litigation, Free evaluation of evidence, Prove, Approach of Proof
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