Study On Restrictive System Of Free Evaluation Of Evidence In Civil Procedure

Free evaluation of evidence is the basic way of discovering the case fact in civil procedure, it is opposite to legal evidence, it do not stipulate the weight of proof of various kinds of evidence and the rule of judging evidence in advance, the choice of the evidence and the size of weight of proof are freely determined by the judge according to his own conscience. But the freedom is not an absolute one without restriction. In order to discover the case fact and ensure the justness of judgment, we should give a limit to free evaluation of evidence while entrust the subjective free to a judge.The major theory of law in our country holds a lot of controversies on free evaluation of evidence because of the ideology factor, but "Ultra-free Evaluation of Evidence" exists in Judicial Practice. It is necessary for us to introduce free evaluation of evidence, do in-depth study on it and evaluate it objectively and justly. We should absorb and benefit from the civil law and common law, accept free evaluation of evidence, perfect the restrictive system of it to ensure the objectivity and rationalization of judgment.This article centers on civil procedure, according to a comparative research on restrictive system of free evaluation of evidence between civil Law and common law , and then analyses the problems existing in free evaluation of evidence in Chinese civil procedure, so in the end establish and perfect restrictive system of free evaluation of evidence in civil procedure in our country. Besides introduction and peroration, this article contains 5 parts, its abstract is as follows:Part 1 introduces the conception of free evaluation of evidence and its rationality. But reasonable does not mean that the allowed, the rationality of free evaluation of evidence can not protect the magistrate's evaluation must be reasonable in practice. The selfish nature of mankind may lead to pervert the law, and the judge's evaluation may be wrong because of a series of other aspects, so it is very important for establishing a restrictive system, and restricting free evaluation of evidence is inevitable.Part 2 makes a comparative research on restrictive system of free evaluation of evidence in civil procedure between civil law and common law, referring to the legislative provision in civil procedure in German, Japan and Taiwan and so on. To learn from them, it makes a conclusion of the difference and same between them.Part 3 makes a legitimate analysis of establishing restrictive system of free evaluation of evidence in Chinese civil procedure. Free evaluation of evidence plays the widespread role in our country, and "Ultra-free Evaluation of Evidence" exists in judicial practice. We should not only accept free evaluation of evidence, but also perfect the restrictive system of it. Although establishing restrictive system of free evaluation of evidence is very challenging, it is feasible.Part 4 describes how to establish restrictive system of free evaluation of evidence in Chinese civil procedure, absorbing other country's advanced experience and considering our country's fact, it sets up the inherent restrictive system and external restrictive system of free evaluation of evidence in Chinese civil procedure.Part 5 describes if we do not take some essential reforms in judicial system, this perfect restrictive system of free evaluation of evidence can not be good follow-up and implemented well. This part enters into some main points about civil judicial reform and safeguards of restricting free evaluation of evidence.As establishing modern free evaluation of evidence, the key of it is how to control the freedom degree that is the symbol of judicature, and all the efforts we have done for this enriches the contents of it. Studying on restrictive system of free evaluation of evidence is to establish it in Chinese civil procedure as soon as possible. It can promote the level of evaluating the evidence of judges, and quicken reforms in judicial system.