Research On Regulation Of The Criminal Discretional Evaluation Of Evidence

In recent years criminal misjudged cases happened from time to time, which shows that the phenomena of the abused discretional evaluation of evidence are serious. Owing to the facts that judges make use of discretional evaluation of evidence without reasonable procedure, criminal misjudged cases happened occasionally. Thus it is necessary to explore the way of regulating the discretional evaluation of evidence. This thesis will analyze the measures of regulating the discretional evaluation of evidence according to the criminal procedural process. The discretional evaluation of evidence should be regulated according to the aspects of credibility of evidence, burden of proof, standard of proof and final judgment. Only in this way can we make the discretional evaluation of evidence of judges objective and impartial.This thesis consists of five chapters:Chapter One will explore the theoretical basis of discretional evaluation of evidence. Compared with discretion right of judge, the scope of discretional evaluation of evidence is narrower. This thesis shows the path of discretional evaluation of evidence in such aspects of the evidence character, the passivity of adjudicative power and the binding effect of final judgment.Chapter Two will explore the regulation of discretional evaluation of evidence in both positive and negative levels of credibility of evidence. The negative level combines with the exclusionary rules of illegal obtained evidence and the reform of sentencing process. In the positive level, the thesis puts forward some suggestions about oral evidence method, such as testimony, statement in court for the culprit & homicide victim and appraisal conclusions.Chapter Three will explore the regulation of the discretional evaluation of evidence with regard to the burden of proof. This chapter will reveal an in-depth discussion from subjective burden of proof and objective burden of proof. In order to make the discretional evaluation of evidence unbiased, we should not only regulate the discretional evaluation of evidence of prosecutors and adopt the principle of only indictment, but also construct balance between prosecution and defense when performing the subjective burden of proof in terms of subjective burden of proof. In the aspect of objective burden of proof, as using the discretional evaluation of evidence does not promote the performance of subjective burden of proof, the judges'power of out-court investigation should be limited. Meanwhile, because of concept and system, the objective burden of proof does not help judges deal with the dilemma when the non liquet of elements of law takes place.Chapter Four will explore the regulation of discretional evaluation of evidence in terms of standard of proof. This thesis will reveal the shortage of the standard of prosecution and the judicial proving standard when they regulate the discretional evaluation of evidence. Then some suggestions will be unveiled. The standard of prosecution should be the enough crime suspicion and the judicial proving standard should be to expel reasonable suspicion.Chapter five will argue that the final civil judgment should not regulate the discretional evaluation of evidence and the reason of final criminal judgment should regulate the discretional evaluation of evidence in terms of binding effect of final judgment.