The Construction Of Combination Mode With Legal Evidence And Free Evaluation Of Evidence

The Evidence of civil legislation must answer a question that we should choose which kind of evidence system, the choice about the evidence must fully consider the primary stage of socialism and the actual situation. In December 21, 2010, The Supreme People's Court promulgated the "Provisions on Civil Evidence, " The theorists think the Article 64 as a flag of the free evaluation of evidence, but the lack of relevant theory and supporting laws and regulations , so we need the default statutory rules of evidence to limit the freedom evidence. Therefore, I tried to study further the free evaluation of evidence and system of legal evidence , and put forward with the evidence system in line with Chinese national conditions, that is the combination of the system of legal evidence and free evaluation of evidence so that giving a right direction for selecting our proof system.This paper is divided into four chapters. In the first chapter, researching the historical evidence in the civil law countries, and the details and meaning of existence of the system of legal evidence and free evaluation of evidence, then through comparative analysis between the free evaluation of evidence and the system of legal evidence, we can know that free evaluation of evidence and system of legal evidence is not absolute distincted. And the adopting of the free evaluation of evidence does not mean no longer setting any Legal evidence. The second chapter, by examining the evidence system of France, Germany, Japan and the Brtain, we know the combination of free evaluation of evidence and Legal evidence represents the current system of world development trend. The third chapter focuses on the free evaluation of evidence in the present situation in China, by commenting on Peng Yu case to point out, although the legislation established free evaluation of evidence in China, due to lack of supporting laws, so subjective judge exists inevitably in the practice. At the same time I put forward that in building a system of evidence, we should consider the two aspects of the freedom of evidence and the legal evidence, and establish the combination of the free evaluation of evidence and the legal evidence. The forth chapter, I analyze the feasibility and necessity of the combination of the free evaluation of evidence and the legal evidence in China. And suggest a number of ideas in this mode building.This paper argues that Chinese evidence system belong to free evaluation of evidence, however, this kind of system has its drawbacks,because the professionalism of judge is scantiness, and in the pretrial proceedings is lack of sound review process about evidence. In order to suppress the trial judge have subjective judge in the practice, we should choose the legal evidence and the combination of the free evaluation of evidence, which is legal evidence-based, and supplemented by the free evaluation of evidence.