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Study On Judging Evidence System In Criminal Procedure

Posted on:2008-05-14Degree:DoctorType:Dissertation
Country:ChinaCandidate:X H JiangFull Text:PDF
GTID:1116360218461319Subject:Procedural Law
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What the author of this essay studies is the judging evidence system in criminal procedure. In the essay, historic, comparative, empirical, intersectional methodologies are adopted. The author gives an all-round, systematic, and profound study on the theoretical and practical questions such as basic theories, general principals, mode positioning, inside foundations, outside restrictions, criterion and methods, and safeguards, etc. Besides, the author gives rational thinking and positive attempt in improving laws, supporting correct practice guiding, and ensuring the justice and efficiency in judging evidence and trial. Composed by seven chapters, this essay contains amount to about 220,000 characters.The logical beginning of the study is to accurately define the judging criminal evidence. The subjects of judging criminal evidence are judges and jurors of a certain case, the objects are the evidences cross-examined on the court, and the contents are competency and weight of proof. The judging criminal evidence can be divided into two types: one is in court, and the other is after court. The former focuses on the competency of the evidences, while the latter on the weight. Thus, full-scale judging evidence shall not be restricted within the scope of being in court. The procedure of judging evidence shall verify according to the different types of criminal cases including simple and easy cases, common cases, and those where the accused confessed his guilt.The judging criminal evidence shall take epistemology, psychology, and probability to be the theoretical guide. Epistemology is extensive and profound. In the modern West, there were two groups in opposition: empiricism and rationalism. Until the Marxist philosophy brought the practice and dialectics into epistemology, scientific epistemology was completed. Thanks to the peculiarity of knowledge of evidence, determining the fact of a case through evidences generally can only get relative trueness rather than absolute trueness. The theory of psychology plays an important part when a judge determines. Excellent mentality quality is the prerequisite for a judge to be competent to perform the responsibility of judging evidence. Meanwhile, good understanding of psychological characteristics of the defendants, the victims, and the witnesses weighs highly in accurately inspecting and judging the evidences. The probability theory is widely used in evidence evaluation and fact determination, but we have to acknowledge the defects of the analysis method of probability in order to avoid mistakes in judging evidence and trial.There were three modes of judging evidence system in the history around the world: ordeal, statutory, and discretionary. The first had withered away from the historical stage, and the last two has both advantages and disadvantages in the meanwhile. The two distinctive modes of judging evidence: strict rules and discretion formed on the basis of different historical background and litigious modes of the two families of law. On the ground of China's primary state, the mode which combines the statutory and discretionary system and averts the disadvantages shall be adopted. In this mode, the statutory system shall mainly be used in judging competency of evidence, while the discretionary system in weight of proof and the two systems are as important as the other. Logical method, empirical method, and doctrine of interest balancing are the inside foundations for the judges to get justice and fairness when discretionally judging evidences, and are the inside limits for the judges to avoid subjective assume as well. Judging criminal evidence can get correct conclusions only when based on the general regularities of formal logic and basic theories of dialectical logic. In the determination of facts, empirical method is the general premise of logical reasoning, and is always used as the grounds of trial based on evidence to evaluate the facts both known and unknown, and thus is of great importance in evidence evaluation. However, we ought to note its limitations. There are several interest contradictions in the procedure of judging criminal evidence, for example, the state interest, group interest, and individual interest, crime crack down and human rights safeguards, substantial justice and procedural justice, justice and efficiency, and so on. The interest balancing in judging criminal evidence is to get most benefits through interest coordination.The outside restrictions provide explicit rules and restrictions on judges'power and activities to judge evidences by setting doctrines of evidence competency and some weight. Chinese legislation on judging criminal evidence shall adopt and perfect the following rules on the basis of considering China's state and learning the advantages of the rule of evidence of the Anglo-American law system: rule of hearsay, rule of exclusion of illegitimate evidence, rule of opinion evidence, and rule of best evidence.The criterion of the judging criminal evidence shall be divided into two types: judging criterion of single evidence and those of all the evidences in a certain case. The former criterion shall be objectivity, relevancy, and legitimacy, while the latter criterion shall be the standard of proof of a certain case. There are two standards of proof:"beyond reasonable doubt"from Angle-American law system and"inner convinced by judge"from continental law system. Despite of the differences of the said two standards, the basic spirit is the same: absolutely definite proof shall be negated. Chinese criterion of"objective trueness"has born defects, so it is necessary to rebuild the criterion by learning from the Anglo-American law system. The judging criminal evidence method contains intuition and inference, analysis, compare and synthesis, inspection and verification.Relevant regulations are key point for judging criminal evidence to be smoothly operated. In the view of judicial system, judicial independence, judges'independence, and open trial doctrines shall be established as primary system safeguards for judges to evaluate. In the view of litigation system, the lawsuit structure of"trial centered rules"shall be set up; rules on witnesses appear in a court shall be reformed; cross-examination system shall be prescribed so that it can be made the foundation of judging evidence. In the view of judges'system, the selection of judges shall be in strict procedure, and the selection system shall have Chinese characteristics and aim at elite choosing; responsibility system of judges shall be established, but the punishment shall be carried out with discretion; more safeguard measures for judges shall be taken in order to enhance safeguards for judges'status, interest, and privilege, thus the judges would have no worries when independently judge evidences and try cases.
Keywords/Search Tags:judging criminal evidence, competency of evidence, weight of proof, discretionary, the evidence rules
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