Study On The Necessity Of Discretional Evaluation Of Evidence In Criminal Procedure In China

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 discretional evaluation of evidence. Plenty of scholars suggest that it is necessary to establish the discretional evaluation of evidence institution in judgment in China. In fact, it is still a blank in our criminal procedure law and the controversy of the necessity of the existence has never disappeared for that reason. The article discusses on the problem that whether we should establish the discretional evaluation of evidence institution and how can we run it well. Then we can draw a conclusion through that.There are four parts in this article. The first part, it is interpreted the meanings of the discretional evaluation of evidence, that is the judge can make decisions according to their experiences principle, logic rules and rational conscience in specific cases, without the restriction of the law set up before. After that, the writer sets forth the philosophy theory of the existence of the discretional evaluation of evidence, demonstrating it is materialistic, dialectical. Except that, the main content of the discretional evaluation of evidence ,including the content, the target, the standards and the subject ,are interpreted in order to make the readers comprehend more deeply.In the second part, it is mainly discussed the development of the evidence history, which can provides convenient that people may make a contrast among different types of principle of evidence. Before the discretional evaluation of evidence, there were prophecy evidence system and legal evidence system which were connected to the conditions of society on that time. What the prophecy evidence system is the judges make their decisions according to inspires by supernatural. It is a basic way that agents are required act in a certain modal set up before, such as promising to the supernatural, water inquisition, fire inquisition, dueling and so on. Then judges can drew their conclusion by courses or results in order to resolve the dispute between agents. It is easy to see that the methods mentioned is neither scientific nor strict, which can more easily lead to the abuse of power of judges and lots of false as results. After that, legal evidence system appeared to be more fit for the society with the development of productive force and the extending of interaction. You can see three main traits in legal evidence system: firstly, setting different credibility and weight degree of evidence on different proof in legal shape, stipulating different value of different proof and law effect drawing form them; secondly, it should has strict important documents of evidence to make a judge on ultimate reality, especially for crime and punishment. Thirdly, the ways of getting evidence, the qualifications of evidence are also required strictly in both procedure and important documents. In the following ,it is introduced the country of the discretional evaluation of evidence which original appeared。From then on, other countries in Europe made similar rules as followed.In the third part of article, writer mainly interprets the principles of evidence in criminal procedure law in our country now, that is principle of"practical and realistic"and"reality of objective", putting forward the disadvantages of them and create a new conception of"truth in law". In fact, judges have to infer the truth subjectively because the evidence they have mastered is only the trace of the accident happened before. However, as reasons of limited of subject initiative and object conditions, people can only get the relative truth which can never reach the truth but infinitely be close to it. So it is suitable to put forward the conception of"truth in law"that it can solve the problem between wills of subject and impossible realization of object. Of course, it is also the basis of discretional evaluation of evidence, offering a standard to discretional evaluation of evidence, making it is possible to be set up. Secondly, writer introduces the conditions of discretional evaluation of evidence in the system of criminal procedure law now, especially for different standpoints and reasons because of the long history of argument in our country. At last, writer makes analysis on feasibility and necessity, not only rebut the standpoint of dissenters, but also list three points to support his opinions: firstly, the emergence of discretional evaluation of evidence accords with theory of knowledge and theory of development in law. Secondly, it is impossible to avoid subjectivity during the course of judging because of the subjective in judging course and ways. Thirdly, discretional evaluation of evidence can promote initiative of judicature, making the judgment more reasonable.In the forth part, writer puts emphasis on how to ensure the running of discretional evaluation of evidence. The key of discretional evaluation of evidence is how to control the freedom degree that is the symbol of judicature. In fact, it is necessary to set up a effective supervise system in order to avoid the abuse of authority. Writer discusses the problem on the followings: one is the restriction of discretional evaluation of evidence itself, the other is the restriction from outside. The inherent restriction contains experienced rules and logical rules. The way of though in law is a restriction on the condition that judges thinking in normal ways. Differently to the inherent restriction, there are more elements can influence the running of discretional evaluation of evidence: first from procedure of lawsuit, in one way, the emergence of discretional evaluation of evidence are based on the court; in the other way, discretional evaluation of evidence is based on principle of a party. Secondly, we should accelerate the independence of judicature, promote the accomplishment of judges, make sure the competent of subject. Thirdly, rules of evidence judge should be recommended in order to ensure that we get the truth of object. Fourthly, we should emphasis on pleading function and public the reasons of judging in order to keep the legitimacy of discretional evaluation of evidence. Fifthly, supervisor should work more effectively by the way of ex-post monitoring.From the discussing above, writer draw a conclusion that we should set up the system of discretional evaluation of evidence in the condition of our system of crime law, for one reason is that it can promote the level of independence of judicature; for another reason, it can make the agents from both exercise their rights sufficiently. Also, there should be system of supervisory jurisdiction to restrict the discretional evaluation of evidence so that it can work well.