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A Study On Disclosure Of Discretionary Evaluation

Posted on:2015-09-04Degree:DoctorType:Dissertation
Country:ChinaCandidate:F LiFull Text:PDF
GTID:1226330467467749Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Disclosure of discretionary evaluation is one of civil litigation systems which is in theprocess of forming and substantiating, have extended the principle of openness of justice. Inorder to protect procedural rights of parties, correctly discover cases’ facts and strengthen theauthority of judgments, judges should disclose their inner conviction. Disclosure ofdiscretionary evaluation which directly related to a basic system called free evaluation ofevidence is one of the basic factors of modern free evaluation of evidence. It has importanttheoretical and practical meaning of consummating hearing fact’s appearance and avoidingjudges’ unscrupulous judgments under the circumstance of adopting confidential discretionaryevaluation. The theory of discretionary evaluation’s disclosure shall answer these three keyquestions: Why disclose the discretionary evaluation? What discretionary evaluation shouldbe disclosed? How to proceed the disclosure of discretionary evaluation? As the first PhDthesis about disclosure of discretionary evaluation in China, which based on piecemeal studiesabout disclosure of discretionary evaluation at home and abroad recent years, from differentperspectives such as institution history, axiology, legal language and civil procedural system,systematically researched the necessity, substance, pattern and application of discretionaryevaluation’s disclosure, and put forward conditions of discretionary evaluation’s disclosureand measures to consummate the system in China at present stage. The whole dissertationdivided into six sections:The first chapter:“the historical evaluation of appearance of hearing fact”. The mentalactivities that judges have to determine facts of cases always project onto some certainbehaviors, and then form into appearance of hearing facts. As human beings breaking throughthe cognitive limitations continually, appearance of hearing facts is developing synchronously,which has gone through three stages: divine reveal, truth predetermined and disclosure ofdiscretionary evaluation. Under the circumstance that human beings’ cognitive ability wasextremely low, divine reveal combined judiciary and primitive religion to show divinethrough ordeal and swear as the ceremony during the trial to endue fact hearing with authority.In order to prevent judges’ unscrupulous judgments about cases’ facts, truth predeterminedrelied on system of legal evidence which had advance rules about competency of evidenceand probative force in the middle age. Institutionalized appearance of hearing facts haspositive impact, as well as its’ obvious character of rigidity. Disclosure of discretionary evaluation is a new appearance of hearing facts developing along with the development offree evaluation of evidence, aiming at eliminating the insufficient of traditional confidentialdiscretionary evaluation and achieving the objectification of free evaluation of evidence.Disclosure of discretionary evaluation is a historical choice due to the development of hearingfacts’ appearance, and broke though the scope of content and function of hearing facts.The second chapter:“the value of discretionary evaluation’s disclosure”. Disclosure ofdiscretionary evaluation stands on the efforts based on every practical need in civil judicialactivities, which specific values represent as contribution to achieve protection of judicialhuman rights, judicial fairness and judicial efficiency. For the human rights protection injudicature, safeguard in civil procedure is mainly reflected in right of equality and freedomright, whether the right of action runs in or out of procedure, it always contains the value ofequality and freedom. Through the disclosure of discretionary evaluation, judges can promoteequality of ability and expression of true meaning between parties, in order to avoid “strikejudgments” infringing parties’ rights of equality and freedom rights. For the judicial fairness,judicial authority stems from acceptability of judgment, while the judicial fairness is thefoundation of judgment acceptability, communicative action theory of Professor Habermascan be used to guide judges and parties’ cooperation in litigation, fulfill the principle ofjudicial democracy and judicial participation, regulate facts jurisdiction, and structure theassociated litigation pattern of argumentation on proceedings and trials. Judges’ disclosure oftheir discretionary evaluation timely will be more conducive to realize value of judicialfairness. For the judicial efficiency, a basic duty of civil litigation is to meet parties’ needs thatsolving disputes quickly. In order to solve the problem of litigation delay, the performanceand effect of Court’s duty to advise and explanation can be ensured through disclosure ofdiscretionary evaluation. Proper disclosure of discretionary evaluation could strengthen thepersuasiveness of judgments, as well as reduce the possibility of litigation delay caused by thelack of parties’ legal knowledge and litigation experience.The third chapter:“the restraining factors and basic content of discretionary evaluation’sdisclosure”. Judges start the process of forming discretionary evaluation from germination ofdiscretionary evaluation, then fuzzy discretionary evaluation, and tentative discretionaryevaluation to eventually clear and definite discretionary evaluation. This process has thespecialty of stage development. Burden of proof and standard of proof play outstanding rolesof rectifying the formation of discretionary evaluation, meanwhile oral expression is becoming a more and more important factor of discretionary evaluation’s disclosure. Subjectto purpose of civil litigation, cognitive ability and expression skills, discretionary evaluationonly can be disclosed limitedly and particularly, the content of disclosure is not possible toconclude all thoughts about cognizance of legal facts. Discretionary evaluation disclosed byjudges can’t be regarded with definite personalization, but it is a formative evaluationcontains common rules, can be judged by general public and used for persuading. Its specificcontents are systems of element facts and the applying of demonstration rules. Formativediscretionary evaluation reflected in the process that introducing facts advocated by parties tolegal essentials, the selection and application of rules of facts’ demonstration and normativeevaluation over results of facts’ demonstration.The fourth chapter,“types and oral expression of disclosure of discretionary evaluation”.Specific kind of discretionary evaluation’s disclosure is determined by several factors such asthe institutional environment of a judge’s inner conviction to disclose cases’ facts and also theway and the purpose in which he disclose. There have been multiple standards in dividingtypes of disclosure of discretionary evaluation. In civil procedure, by the difference information, content and aims, disclosure of discretionary evaluation can be divided intocompulsory disclosure and arbitrary publicity, publicity of promoting procedure and publicityof judge’s obligation, direct publicity and indirect publicity, oral publicity and writtenpublicity etc. Oral expression is a way that based on requirements of all kinds of discretionaryevaluation and disclose them for special purpose. Accurate oral expression is the basis of thejudge’s proper understanding and acception, in which balancing the use of deterministicparlance and uncertainty parlance, legal language and daily language becomes the key tocoordinate appropriateness. The disclosure of reasons for court’s decision and power to clarifyare distinguished from expressions of judgment expression and heuristic expression. Duringthe trail, considering the importance of negotiation while performing the power to clarify,various expressions used interchangeably are quite essential.The fifth chapter,“discretionary evaluation’s disclosure under several specialcircumstances”. The disclosure of discretionary evaluation is a litigation activity subjected tovarious procedural principles, in which a path must be found to consistent with theinstitutional environment and programs. Disclosure of discretionary evaluation is generallybased on the thinking of sole judge system and the first instance, however, in some specialconstitutional environment such as collegiate system and the second instance, judge’s discretionary evidence and the way to disclose will appear specially. The discretionaryevaluation in collegiate system contains individual proof of individual judge as well ascollective proof made by Full Court, the presiding judge and the other members of thecollegial panel, which are going to disclose in different ways. In the second procedure of thecivil suit, the discretionary evaluation are based on multiple factors of evaluation with thebinding and flexibility characteristics, different circumstances such as “agree findings of factin the first instance”,“to change the facts of first instance found”,“sending back for retrial”,require different disclosure of discretionary evidence.The sixth chapter,“safeguard mechanism of discretionary evaluation’s disclosure inChina”. As every other judicial reform, the implement of disclosure of discretionaryevaluation must incorporate with the social transformation of the overall developmentframework. With the introduction of Supreme Court’s “Rules of Evidence” and a series ofjudicial openness measures already implemented, as well as the Civil Procedure Law revisedin2012, the practice of discretionary evaluation’s disclosure have been widely promoted.Judges are more acceptable about the concept, but the disclosure of reasons for court’sjudgment are still limited. In order to improve implementation of discretionary evaluation’sdisclosure, the judge’s and the public’s understanding of the concept should be optimized.Further more, the process of build and improve the disclosure of discretionary evaluation’srelevant institutional should focus on systems as discretionary evaluation of evidence,independent of judges, the power to clarify, and the reasoning of judgment.
Keywords/Search Tags:Appearance of hearing facts, Disclosure of discretionary evidence, Thepower to clarify, Reasoning of judgment, Element facts, Legal rhetoric
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