Analysis Of The Principle Of Free Evaluation Of Evidence

The evidence system has gone through the historical evolutionary process from the evidence system of prophecy to the legal evidence system and then to the evidence system of discretional evaluation of evidence, with each kind of evidence system closely connected with the social and historical conditions at that time. Viewed from the evolutionary history of the evidence system, the human will and rationality have been more and more represented. The discretional evaluation of evidence, as one of the basic principles of examination and judgment of evidence, has gone through the transfer from the traditional one to the modern one, that is, from the secret evaluation of evidence to the open one. The law of conscience and rationality, knowledge and logic experience that the principle of discretional evaluation of evidence bears has been represented in the whole activity of judgment, which has continuously influenced tiie judge's internal certainty for the examination and judgment of evidence. This principle has ever been regarded as the completely useless "bourgeois" and "idealistic" one in China, which has met strong criticism. With the restoration, development and perfection of the evidence system of our country, the principle of discretional evaluation of evidence has been surveyed afresh, with its "rational core" finally winning the status it deserves and having been explicitly presented in the fields of the civil and the administrative litigation. However, due to the irreversible inertia and lack of adequate understanding of relevant judgment systems, there exist a great number of phenomena of "mechanical law enforcement" in practice and the abuse of "right of discretion" often happens. In any case, it is of no use for a country to rule by law, because what the people see is the unfair judgment lacking rationality, which directly brings about the reduction of the public trust in justice. The discretional evaluation of evidence includes two aspects of "freedom" and "unfreedom", for which the rational definition is the important requisite of giving a full play to its rationality. The "freedom" of the principle is first represented in that the human belief of common cognitive capability is the important theoretic basis of defining the discretional evaluation of evidence, and secondly that the restriction of the statue law makes the discretional evaluation of evidence acquire the powerful basis of legal philosophy, and thirdly that the dynamic role of the subject for the object becomes the epistemological basis of the existence of discretional evaluation of evidence, and finally that the universality of the freedom of judging the probative force of evidence is the sociological standard of the survival of discretional evaluation of evidence. Viewed from the "unfreedom" of the discretional evaluation of evidence, which should be restricted, the relative restriction of the requisite and functional range of the theory of evidence judgment and the restriction of common principles and logic rules are contained. In the cases of concrete judgment at home and abroad, the restriction on the principle is mainly represented in such aspects such as the judge's professional ethics, logic reasoning and experience as well as the open discretional evaluation of evidence, etc.. However, in the practice of judgment of our country, there still exist a large amount of such phenomena as being afraid of and not good at the use of experience as well as the inadequacy of the degree of the open discretional evaluation of evidence, etc.. Another topic that the paper tries to deal with is how to realize the rationality that the discretional evaluation of evidence emphasizes by the external security mechanism or the requirements of the realization of discretional evaluation of evidence for the external conditions. Firstly, viewed from the judicial perspective, great differences exist between "necessary conditions" and "actual conditions"; however, it must be seen that the judge enjoys the right of free judgment of the probative force of various kinds of evidence by his or her own internal certainty in the examination and judgment of the probative force of evidence, which makes the judicial activity acquire the relative status independent of legislation at leas in the aspect of confirmation of facts, and more independent of various social aspects. In addition, the judge, as the only legal person of the right, enjoys the ultimate right of judgment, which is an important factor of the discretional evaluation of evidence giving a play to its rationality. Secondly, viewed from...