On The Security And Restrictions Of Free Evaluation Of Evidence

Free evaluation of evidence is an evidence-evaluation principle widely adopted by modern countries under the rule of law. To obtain a reasonable state of evidence evaluation, the countries which are adopting the principle of free evaluation of evidence, on the one hand protect the freedom of national judges to form their own state of evidence evaluation, and on the other hand, by restricting the judges' arbitrary judgments, in the system they set down the corresponding security measures and control measures to develop free evaluation of evidence. From the perspective of restraining the judge's subjective arbitrariness, these measures are the limitations and constraints on the free evaluation of evidence; and from the perspective of ensuring the rationality of the state of evidence evaluation, they are the powerful guarantee of the free evaluation of evidence.China's law does not expressly provide a system of free evaluation of evidence, but it is an indisputable fact that there is the phenomenon of judges' free judgments in judicial practice. Centered on the civil lawsuits, this paper explores the securities and restrictions of the free evaluation of evidence, hoping to provide useful references for perfecting the system of our country's securities and restrictions on free evaluation of evidence.This paper explores the securities and restrictions on the free evaluation of evidence from the following six parts.The first part is about the connotation of the free evaluation of evidence, introducing the origin, meaning, and specific content of the free evidence of evaluation. Free evaluation of evidence are a compound concept formed by freedom and the state of evidence evaluation. Freedom refers to the situation that the law does not set specific rules to indicate that the judges must or must not make certain judgments in identifying a fact with evidence. The state of evidence evaluation means that when identifying the fact basing on evidence materials, judges are free to judge without the constraint from the law. The specific content of free evaluation of evidence including three aspects: the category, the channel, and the content.The second part deals with the historical evolution of the free evaluation of evidence, introducing the historical evolution of free evaluation of evidence in some main western countries as well as its destiny in China. In the human history, there have been three major evidence systems, that is, system of divinity evidence, system of legal evidence, and system of free evaluation of evidence. System of divinity evidence and system of legal evidence are no longer existent because of their limitations. Modern countries under the rule law widely adopt the system of free evaluation of evidence. Free evidence of evaluation was originated in France, and after being introduced into our country, it has been further amended in many aspects.The third part dwells on the formation of the state of evidence evaluation. This paper deals with it from the forming time and influencing factors of the state of evidence evaluation, proposes that the judge's state of evidence evaluation is to form a fuzzy understanding of case facts and then find the evidence based on this understanding, and also argues that the judge's state of evidence evaluation is the result of the co-working of a variety of factors.The fourth part discusses the securities and restrictions of the free evidence of evaluation. It deals with this problem from six aspects: principles of evidence judgments, the rules of experience, the criteria of proof, proving responsibilities, the doctrine of debate, reasons and public of judge's decision.The fifth part discusses the external security and restrictions of free evaluation of evidence. This part mainly focuses on the purpose, the judiciary independence, the judge' s quality, and the judge' s neutral role.The sixth part proposes two development ways of the modern free evaluation in China. The traditional point of view holds that China is a country with written law, and the written law is the main source of law. There is no constraint from the law for the cases since China does not enforce the system of jurisprudence. However, historical materials show that China has the tradition of jurisprudence. The recovery of the system of jurisprudence can provide a good system for the reasonableness of the free evaluation of evidence. In the choice of verification mode, by comparing the pros and cons between free evaluation of evidence and legal evidence, a new-type of evidence system is advocated by taking the free evaluation of evidence as the mainstay, and the legal evidence as the supplementary.