On The Rational Construction Of The Opinion Evidence Rules In China

The rules of opinion evidence are one of the evidence rules that normalize the witness testimony ,in Anglo-American law of evidence. In Common law countries , witnesses are divided into lay witnesses and expert Witness. Generally Jay witnesses can only present their personal experience of truth ,it is published for its inference or opinion drawn from the direct observation.Otherwise, the witness testimony was excluded because of inadmissibility. But the opinion testimony by expert with professional or skilled knowledge is usually adopted.As to the opinion evidence rules, there is no systematic legislation in domestic law, only having sporadic legal provisions relating to in the areas of civil litigation and administrative proceedings. And the provisions ,as judicial interpretation ,are wery sketchy and lack of the practicability and maneuverability.With the deepening of judicial reform, the evidence rules have been paid more and more attention by legal circles.So,I think,we should learn from the legislation and practice of the common law countries,and construct our system of the evidence rules in accordance with Chinese national situation.In this paper, we first give a definition of opinion evidence,then analyze the current situation of legislation and the trend of the extraterritorial legislative about the opinion evidence rules,as well as compare the status quo of Chinese legislation.In addition, this article analyzes the necessity and feasibility and the possible obstacles during the course of the construction of opinion evidence rules.Finally, this paper give us a piece of reasonable suggestion about constructing the opinion evidence rules in accordance with Chinese national situation on the basis of foreign advanced legislative.This article is divided into five parts.The first part focuses on the contents and characteristics of the opinion evidence,as well as the distinction between opinions and facts.I think, the opinion evidence is the inference from the direct perception of witnesses. It is different from the objective facts, and not separated from facts.It is on the basis of the facts. For the distinction between opinion and fact, the author believes that, in essence, the distinction between facts and opinions are only division of extent of the witness testimony. That is, if they are in line to achieve a higher degree,through comparing the witnesses testimony and their knowledge and experience, we generally think, what he said is the"fact".The second part mainly describes the development of extra-territorial opinion evidence rules and legislative status quo, from the historical development of the evidence rules start.Part III focuses on the reasons that the opinions by lay witnesses are not accepted,but the opinions by expert witnesses are. The reasons mainly embodied in the formation process of opinion evidence, the implementation of the value of justice, the theory of the judge's discretion, litigation efficiency,and so on. In this section, I put forward a different perspective views, Namely: I consider the inference which are "rationally based on the perception of the witness and mixed with the facts or containing the element of speculation" as "fact" or "secondary fact". So ,I think, the exception of opinion testimony by lay witness does not exist. Once classified as the opinion testimony ,it should be excluded.As the focus of the article, Part IV mainly analyzes the necessity and feasibility of setting up the rules of opinion evidence,from the following aspects: substantive justice and procedural justice, the procedures of procedural adjudication, restriction of judicial discretion, realizing the system of the witness appearing in court, deepening the reform of the trial,and the development of the evidence rules.In the part V,the author puts forward reasonable suggestion about constructing the opinion evidence rules in accordance with Chinese national situation, taking the current status of Chinese justice into account. Besides,the paper also predicts the obstacles that may be encountered in the course of the implementation of the opinion evidence rules,in order to adequate consideration during the process of legislation.