Study On Probative Force Of Evidence

The essence of trial is a process of cognition. The purpose of the cognition in litigation is finding out the fact of the case, and settling down the disputes in time. In order to fulfill the function of finding out the fact of the case and settling down the disputes , evidences are the main measures for retrospective cognition and the requirements of rational cognition. The past facts are objects of indirect cognition. In that the judge is not the part of the litigation, he has not experienced the case, so he can only know the case via the traces of the case, which are called“evidences”, while evidences are always incomplete. The probative force is the specific performance of the relationship between evidences and the fact. The significance to evaluate the probative force exists in the relevance and caustic relationship between evidences and the fact.The process to evaluate the probative force of evidences is a process from objective to subjective, a process of the unity of the litigation subject and the proof object. Its essence is the cognitive action of the human beings ( the judge). To get knowledge of the past facts form the evidences, this is the process of proof. It is subject to the outer-world and the inner-world. The evaluation and identification of the probative force should abide by the rule of cognition, experience and logic, and is constrained by the reasonable evaluation of evidences. The probative force of evidences is the important element for the judges to evaluate evidences and find out the facts of the case. The probative force of evidences is close to the relevance. The relevance is objective. One evidence should has the direct or indirect relevance before it acts the probative force and impacts on the litigation. No relevance, no probative force. Or there is some relevance, while it is too remote that will arise the mix the disputes or delay the trial, mislead the jury, the evidence still has no probative force.To the designation and evaluation of evidences’probative force in the litigation, in the different periods and evidences rules, people have different standards to measure the probative force of evidences. Even in the same period and the same country, the economy, culture and history also impact the evaluation of people. To the person who estimates the facts, he must face to the different options of values. Judges should balance the different values and make a comprehensive consideration.For the limitation of the historic condition, in ancient times, people call for the gods to find the reasonable basis of the litigation. The communication between human beings and the nature is the trace of gods. The out of the litigation from the gods meets the substantive and procedural justice, and has the authority. When human beings began the reasonable trials, the doctrine of judge by evidences was considered to be is the best measure to find out the facts of the case. In order to avoid the discretion of the judge, people recognized to make the standards to the judges. As a result, it fell into another fault of formalism, which focused on the formal conditions of evidences, while omitted the substance, and deprived the discretion of the judges, and constrained their subjective cognition. Then the evaluation of evidences was replaced by discretion. It dose not set the previous standard of the probative force of evidences. Judges or the jury has the discretion to the trial. While the discretion arises to the level to determine the facts, it is the confident. From the aspects of the subject, judges have the limitation to evaluate the facts and evidences.Every society has the certain orders and rules. They are settled to get the better social communication. To the evaluation of evidences, the public can get knowledge of the rule of probative force via the platform of litigation; the judges can settle the case via the previous standard. So it can play the role as a stabilizer, to order the social life by law. Legislators enact the law about the social relationship to sustain the stable, orderly and peaceful ruling. So no matter which system of litigation, the designers will face to tremendous policy choices. The modern laws all reflect the characteristic of sustain the order of the society and the freedom of the citizen. The laws ask the judges’act abide the rules. When there is no explicit specification or doctrine to construct the choice, it needs the determination of values. For the laws are incomplete and vague, the process of the probative force evaluation exists the discretion of judges.The designation and evaluation of the probative force of the evidences is the reflection of the subjects’values. The evaluation of the probative force of the evidences reflects the diversity of the litigation and the values of the evidence rules. It is the reflection of the diversity values, such as the truth, the freedom , the justice, the order and the efficiency. The disputes among the values can not avoid. Different rules of the designation of the probative force lead to different conclusions. Every value should abide the discipline of the litigation, and reflect the science of the evidence rules.From the aspects of the laws in China, there is no discretion rule in the litigation. But it does not mean that the judges has no freedom in the process of evaluation of the probative force, they have considerable discretion. Seen from the new judicial interpretation, the authority has known the rules and limitations of the probative force of the evidences.The structure of the thesisThe thesis is consisted by seven parts. I will discuss the essence of the probative force of the evidences, characteristics , roles and problems in the judicial practice, from the aspects of the definitions, comparison, evidence rules and procedural protection, in order to construct the system of the probative force of the evidence, to service the judicial system. The thesis’main object is the litigation procedure and the probative force of the evidences in the evidence rules. The thesis will study mainly on the probative force of the evidences in the procedural laws.First, the thesis will discuss the definition of the probative force of the evidences, to find out its essence and characteristics, especially the relationships among the probative force, the facts and the evidence abilities.Second, the thesis will discuss the different styles of the probative force of the evidences.Third, the thesis will discuss the elements of the probative force of the evidence.Forth, analyze the rules on the probative force of the evidences. Fifth, the focus is on the the evaluation system of the probative evidence.Sixth, the thesis will pay attention to the evaluation of the probative force.Seventh, the thesis will discuss the complement of the probative force of the evidences in China, and the construction of the related systems.