Study On Evidence System In Ancient China And Its Motivation

The research of traditional evidence and the rules is one of the weak research areas in the history of Chinese legal system, the less rear reasons about the status of the formation was analyzed. Litigation means fight for evidence, which is same at all times and in all over the world. Due to discrepancy of the legal idea, legal consciousness, moral points under the nature of different regimes in different regions and periods, different applicable rules of evidence will be formed. These rules may be established by the law, which shows clear and apparent characteristics; and they also may be formed in judicial practice, which is remarkable but rely on a large number of typical cases of justice for estimation and conclusion.There are lots of valuable results for the research of evidence system in Chinese dynasties. In choosing angle of view of the research for relevant papers, the evidence can be researched from the point for legal system of ancient China, or description can be used to show readers what kinds of evidence are existed in ancient China and the key point of research is focused on the country's legislation or the code rules. Little argumentation has been used to how the evidences are processed in the judicial practice, and little attention has been paid to gain and adoption of evidences, application of rules and affection factors when the judges from central to local place in the practical cases. There is no systematic conclusion about the evidence rule which is processed by ancient judges in specific cases, say noting of researching into the reason why the rules should be followed from the angle of view of jurisprudence.The opinion which the rules of confession verdict has been adopted by judicial officials and the confession has been gained totally by torture without distinguishing the case nature and the specific situation should be clarified. The author tries to research the gain of evidence, the kinds of evidence, the difference between criminal and civil evidence rule relying on ancient document such as past dynasties'verdict, and analysis why confession is the first rule as inquisition to criminal cases, while the basic rule of inquisition of civil cases is certificate. The author tries to complete the cross of subjects according to evidence rules in jurisprudence and science of legal history, and analyze the rationality of evidence rules. Introspection to the opinions on the theory basis of modern evidence system which is against Western-centrism of evidence rules and based on Chinese local practice and conditions of the people. The research may has the academic meaning and practical value directly or indirectly to the establishment of ongoing law of evidence.In addition to the introduction and conclusion, the main body of the paper is composed by four parts: general summary of evidences, facts, rules and their relationships; the criminal evidence and applicable rules in ancient China; the civil evidence and applicable rules in ancient China; the motivation of evidence rule of historical rationality.Introduction is mainly setting for the thesis, approaches and reference framework of the paper. The author believes that deeply research on evidence system of ancient China and the applicable rules, introspection seriously on tradition and questioning its rationality is beneficial for inheriting and developing of the culture of traditional evidence law.Chapterâ… is focused on the discussion of relationships between fact, criterion and evidence basing on the nature of judicial process. The author think that one side of evidence is connected by fact and the other side is pulled by criterion, the case fact is the foundation of case inquisition, evidence is the basis of identifying the fact, criterion is the yardstick of judgment. The responsibility of judges is making a verdict by detecting the fact, judging the evidence, relying on the criterion and"no suspicious to truth". The judging process is using the process of evidence rules . The author think that certain evidence rules are followed by judicial officials in justice practice in ancient China.Chapter II concludes the types of criminal evidence in ancient China, describes the method how the criminal evidence is acquired, and then points out the rules of criminal evidence"conviction by confession","conviction by public evidence","face to face confrontation", etc. The main form of criminal evidence includes confession, public evidence, bribes, condition etc., not only the confession provided by defendants called"confession", but also the words of the plaintiff and the witness are totally called"confession"or"evidence"; public evidence is only fit for the following three conditions: special identity of criminal, the criminal's age is less than that of criminal responsibility and disabled, even in Tang and Song Dynasties the"public"can be referred when there is more than 3 persons, public evidence is relative independence, the using premise is the nature of case; the bribes and conditions are the main evidence of all kind of stealing, bribing and killing criminals, in general conditions, this is used as evidence of confession conviction, which means the imputation is set up even there is no bribes and conditions, however that is the source of unjust cases. A fair judicial official cannot ignore the evidence of bribes and conditions, bribes and conditions can form the independent evidence type which can be applied in criminal groups of no confession or special criminals. Most judicial officials obtain evidence related to cases by knouting, surveying, investigating, huge hook, experience, etc. in justice practice. Conviction by confession is the primary rule for criminal evidence, conviction by condition is relatively independent rule, conviction by public evidence is applicable independently which includes conviction by public evidence and prohibition by it."Query"is the necessary procedure in inquisition of cases which is available in first instance, the truth and fiction of confession can be identified according to confrontation.Chapter III concludes the types of civil evidence in ancient China, describes the method how the civil evidence is acquired, and then points out the main rules of civil evidence"trading has dispute, solving by contract certificate","cross-examination by book","public evidence"etc. The confession of parties, the witness of neighbours, records with photos are the main types of civil evidence. Records with photos, dry photos, physical monuments are the evidence for decision of ownership disputes; tenancy contract, agreement are the evidences for decision of lease and tenancy disputes; sales deed, ticket, text, contract are the evidence for decision of business disputes; self-proved books, covenant bonds, debt evidences are the evidence for decision of loan disputes; wills, cutting books, discussion, support contract, inheritance contract are the evidence for decision of inheritance disputes; legal reason, marriage book, marriage contract are the evidence for decision of marriage disputes; all the evidences are also include the confessions of neighbors, intermediate assure, insiders and scriveners. Racking pattern is adopt to confession of parties just as the cases of criminal natures, but racking is not universal from abundant examples; survey and re-examination are used for each kind of documents, to the case that the documentary evidence can not be provided, judicial officials will visit the site, test and get the public evidence; checking, identification, inquest on the court, discursion are used for judgment of documentary evidence, the conclusion is usually apparent verification, real and truth, not rely on and so on.Chapterâ…£describes the motivation of evidence rule of historical rationality. The author believes that the legal responsibility of"conviction by evidence"is not used by judicial officials for criminal laws in history, which provides the possibility of the system on criminal evidences in ancient China. The legal precedents written in precedents and documents in previous ages, including official documents, the collection of documents by officials who were in charge of verdict and the documents formed by the activities of the actual verdict to other's documents collected by contemporaries and posterities, provided us the possibility in practice for summing up criminal evidence rules in ancient China.The reason why the confession is the first conviction for criminal evidences in ancient China is state interventionism; only"convinced from mouth"means criminal"conviction","peccavi","be executed"; the criminal's"conviction by conditions"under the conditions of"if bribes and conditions are clear, not trustful, although the criminal don't admit";"conviction by public evidence"under the principle of"privilege"and"pity punishment". The evidence idea means"convinced from both heart and mouth"is"real convinced", the procedure is substantive justice rather than formal justice, the design of judicial system made officials focus conscience inside and fortune outside; is the fact described by the person who has lived through is more actual than that who has just heard or seen, which is the consideration of evidence rules standing on nationalism, and this is the most convenient, the cheapest judicial design and the necessary result of"altruism"based on humanitarian; is recognition that criminals has be seen as"great evil"by officials in ancient China.The rules of civil evidences which different from that of criminal evidences is formed based on the"paperism", it is because the civil action adhere to the combination of adversary-orientation of"NoTrial Without Complaint"and authority principle in ancient China , feudal official pursues absolute ideas of"paperism"in accepting and censoring the case, common people all have strong consciousness of paperism, giving their attention to collecting and saving the evidence, in feudal official's ideas , book and record made by the official has upmost effectiveness as an evidence.The author believes that the process rules of evidences in ancient China has the compatibility of formal rationality and substantive rationality, shows the formal rationality on inquest and judgment and substantive rationality on conviction result, pays attention to the protection of"evidence shown"and particular benefit, puts the sense inside the process of inquisition and judgment, pursues the weighing justice in the eyes of Chinese people; the author believes that the proof standard of evidence system in ancient China is the subjective awareness of officials which reflects the truth of he object cases. At the same the social background, main ideology, experience and the distance form cases of judicial officials are totally the factors who affect the formation and application of evidences.Conclusion analyzes the meanings of"confession"and"evidence"and the significance of constructing the culture of traditional evidence law. In author's opinion, it is a symbol of law, represents natures and characters of traditional evidence system, reflects evidence idea and consciousnesses of different levels, provides absorbed instructions and experiences to present evidence system.