The Law Of Evidence During The Song Dynasty

Song’s evidence system was at an advanced stage in Chinese traditionalevidence system and had significant affect on the forming of evidence consciousnessand the use of evidence in later ages. Although many valuable academic achievementshave been made, currently few people systematically researches on Song’s evidencesystem.This situation leaves a relatively large space to the discussion in this article.This article is written based on an approach of empirical and comparative study. Theauthor cites a few precedents recorded in some books including Ming Gong Shu PanQing Ming Ji, Zhe Yu Gui Jian and Tang Yin Bi Shi as well as using ordinances incertain regulations including Song Xing Tong, Song Hui Yao Ji Gao and Qing YuanTiao Fa Shi Lei, and then systematically analyses Song’s evidence system.Besides the introduction and conclusion, the text of this article has four chaptersand the main points are presented as follows:The first chapter is about the developed classification of evidence in SongDynasty.The author divides the evidence into five categories: related person (knownas “Gan Lian Ren”) and confessions of defendant, material evidence, documentaryevidence and written inspection report. A related person included the plaintiff,witness and expert witness.The plaintiff, as a related person, could testify by means ofpleadings and confessions.The format, content, drafter and guarantor of the pleadingwere strictly regulated. The witness in Song Dynasty was in the position of beingtracked and could be interrogated by torture.The witnesses who were relatives of the contesting parties or in bad physical conditions could be released from testifying.Meanwhile, women did not have to testify in court in person. A special relatedperson was obligated to provide salvation if he/she was aware of the danger. Awitness who was irrelevant to a case was forbidden to file a lawsuit. The relatedperson in Song might also include experts who advised judges. The expert’stestimony had a strong probative force and could be accepted easily in hearing.In Song Dynasty, a defendant’s confession shared a significant important positionwhen deciding a case. From a perspective of probative force, the defendant’sconfession included making a clean breast of the truth upon arrest and voluntarilyconfess his/her crime. In order to get authentic and voluntary confessions from thedefendant, each interrogation must be recorded. Furthermore, when a case closed,all documents should be well filed.People in Song Dynasty had realized the importance of evidence’s objectivity inconviction and sentencing. Thus, people at that time laid much emphasis on materialso that a judge did not dare to end a case only by a defendant’s confession withoutany material evidence. There were various kinds of material evidence in SongDynasty Material evidence could be divided into materials, trace and human body.From the perspective of judicial practice, people in Song made the best use ofmaterial evidence.The biggest feature of documentary evidence in Song was that the form of somedocumentary evidence was strictly regulated. People were required to make writtencontract for important commercial activities, e.g., transactions of important capitalgoods, land leasing, government-owned real property leasing, deal in human beings,and employment. A standard agreement template was officially provided for landmortgage which regulated the content and form of the agreement.The written inspection report in Song Dynasty mainly referred to the bodyinspection report. As there was no injury inspection report, the injury inspectionresult was directly recorded into the files. Although there was classification ondisability, it was not included in the inspection and was only influential on convictionand sentencing. The postmortem examination in Song Dynasty included writteninspection sheet, inspection items and picture of human body’s front and back views.These three kinds of written inspections recorded details and procedures of the wholepostmortem examination and thus they elevated the probative force of written inspection.The second chapter is about the investigation of evidence in Song Dynasty.Such investigation included interrogation, search, interview, onsite inspection. Strictregulations were set on the interrogation of the defendant in Song Dynasty.Interrogation by torture could only be used under certain circumstances. To avoidcruel torture, specifications of torture instruments were strictly regulated. Thetorture instruments makers should sign on their products. Besides, restrictions weremade on the human part and number of times during interrogation. The judge inSong Dynasty put great importance on investigation skills to obtain the truth.Searching in Song Dynasty had public one after arrest and also private one. Probingwas always carried out at the city gates, gate guardians could examine some suspects.Investigations by visits had both legal and adjudicative ones, the legal one was usuallylinked to postmortem examination and the adjudicative one, public or private, was tofind insiders according to details of a case. On-the-spot inspections involved bothcriminal and civil cases. A book named Xi Yuan Ji Lu presents more descriptions ofon-the-spot inspections on criminal cases. As to the onsite inspection in civil cases,the defendant’s confessions could be verified based on investigation, measurementand the content of contract.The examination on admissibility of evidence included examination on oraltestimony, material evidence and documentary evidence. Examining oral testimonyincluded Wu Ting, analysis on fact and reasoning, and verification, etc. Officers inSong made further clarifications to Wu Ting, e.g., primary and secondary parts,screening vexatious parties. Analysis with reasons was applied when there was nodocumented or material evidence. In terms of injury cased, injury inspection couldbe taken to determine whether the confessions were authentic in case of argument.Ways to examine and judge the documentary evidences were handwritingidentification, on seals and stamps, sequence identification of crossed writings andseal stamps, identification on tampered documents and identification on time.The third chapter is about the use of evidence in Song. The basic principle ofevidence use can be summarized as fundamentally investigating a case based onevidence, discretional evaluation of evidence with limit by reason and the principleabout dealt with the case personally. The evidence was analyzed based on itsbackground. The background included objective factors about the fact of the case and the behavior unknown and motivation of the behavior to be inferred from thebehavior. In Song Dynasty the background would be analyzed by the methods ofevidence testimony and reason illation. As the base of analysis, the evidence had awide range because even the opinion from dummy and people with psychologicalproblems would be regarded as truth. In general, a case could not be closed withoutthe defendant’s confessions. Meanwhile, clues were also regarded as a kind ofevidence. In Song Dynasty, the discretional evaluation of evidence shall be limitedby reason at any time before, during and after the case. In Song Dynasty, the judgewas required to hear a case in person. The ruler stressed in writing several times onthis. Any judge who failed to do it personally will be punished. Actually thisprinciple didn’t require the judge to handle the case personally through the wholeprocess. Furthermore, it just applied to the crime above the level of TU (a kind ofpunishment). This principle was set up due to the reality that judge was responsiblefor the criminal cases and actually the case was directly handled by subordinate.The principle impacting the allocation of responsibility about evidence testimonywas the principle to judge the case by following the soft punishment when there wassomething doubt in the case and the principle to cautiously infer the guiltiness. Incase the evidences were not enough for the judgment, above two principles let thedefendant undertake the unfavorable consequences due to failure to submit evidences.In the Song Dynasty, in case something unclear in the fact or reason, and ensureproperly apply the principle, the case shall be reported if something was unclear.Cautiously guiltiness illation referred to the judge shall have confidence inside oncethe judge though the defendant was guilty. Cautious judgment was the need fromthe laws and also from the reality, and it could prevent the civilians from illegallyraising any cases and also prevent the officers from illegal behavior during dealingwith the case. Cautiously guiltiness illation exempted the plaintiff from burden ofevidence and increased the load of the defendant.In the Song Dynasty, the objective to be testified included something free ofbeing testified and something shall be testified. Reason included peoples’relationship and rules arising from customs. Reason could be used directly inhandling the case, even could be used to identify the facts inferred. Something to betestified included the fact of the case and the laws. Because the laws in the SongDynasty were complicated, the background of the laws, its meaning and its feasibilityshall be taken into consideration and need the evidence to testify it. The fourth chapter is about the reasons of evidence system in Song. In thischapter, the author discusses three issues-Song’s evidence system inheritance fromformer dynasties, Song’s social development, and prosperity of Song’s ideology(known as “Song Xue”). As to the former evidence systems, the author discussesthree major factors that effect the use of evidence in Song: i) the interrogation systemconsisting of the necessity of getting a defendant’s confessions, and the legality andrestriction of extorting confessions by torture; ii) the documentary evidence systemformed by the requirement of recording, in writing, various of activities in people’slife; and iii) the guiding thoughts of Ming De Shen Fa (Emphasizing on Virtue andBeing Cautious with Penalty) in Zhou Dynasty, De Zhu Xing Fu (Morality GivenPriority Over Penalty) in Han Dynasty, and Yi Zhun Yu Li (Discipline Rite Prevails)in Tang Dynasty.The technology development of papermaking, Chinese ink and printing in Songcontributed to the popularization of documentation. Furthermore, it also providedmaterial base to benefiting common people of filing lawsuits, popularizingdocumentary evidence and spreading information regarding evidence. Policies ofencouraging reclaiming wastelands, land annexation uninhibited and land free tradingin Song perfected the evidence system in land related cases. In addition, theLitigator Handbooks appeared in Song. The theory of litigation also well developedin some areas and litigators got involved in disputes. The above improved andpopularized Song’s evidence system. Song’s forensic medicine was alsosystematically summarized. Seven monographs relating to forensic medicine werepublished successively, of which Xi Yuan Ji Lu was the most detailed and systematicone. The improvement of forensic technologies had a lot to do with keeping atlas inseveral important anatomy events in Song.Song’s ideology provided philosophical foundation to the development ofevidence system. In the North Song Dynasty (or Earlier Song Dynasty (960-1127)),Song’s ideology was mainly guided by Jing Gong Xin Xue and in the South SongDynasty (1127-1279), it were mainly guided by Cheng Zhu Li Xue (a theory ofNeo-Confucianism). These two theories made an indirect and imperceptibleinfluence on Song’s evidence system. The Jing Gong Xin Xue paid attention to theimportance of law. Moreover, the implementation of Xi Feng Revolution heightenedthe status of laws and ordinances in imperial examinations, which provided a largenumber of judges with good legal knowledge. These judges, including Wang Anshi, paid more attention to use evidence in trials, especially from a perspective of justice.Cheng Zhu Li Xue emphasized on the role of San Gang Liu Ji (Three Cardinal Guidesand Six Disciplines) in trials. Hence, any case against these guides and disciplinescould be simply judged on the ground of against the heavenly principles-feudalethics as propounded by the Song Confucianists. The influence of Cheng Zhu LiXue on the judges can be seen on emphasizing on a judge’s good character, and inturn, using evidence with heavenly principles to judge a case.