Building Our Free Evaluation Of Evidence System

Discretional evaluation of evidence system is regarded as a principle system of facts clarification in most modern countries. To ensure and maximize the objectivity of facts clarification, judgment makers should be given the right of discretional evaluation of evidence, and at the same time over-all guidance and restrictions to the fulfillment of the right are quiet necessary. In retrospect, discretional evaluation of evidence system has been suffering serious historical misunderstandings in China. In reality, it confuses many people and in theory it lacks systematical research. This paper, focusing on discretional evaluation of evidence system and based on civil action, is designed for a systematically comprehensive illustration and analysis on the establishment and rational ensurence of discretional evaluation of evidence system. The purpose is to enrich the achievements on evidence system, to provide theoretical support for the legislation of evidence system and theoretical instruction for judicial practice. Besides an introduction and a tag, the paper can be divided into the following five parts.Part one mainly traces the history of discretional evaluation of evidence in order to provide practical reference and theoretical support for the system. Firstly, it discusses the implication of discretional evaluation of evidence which means in principle it breaks the restrictions of evidence-offering methods, with discretional judgment on the effectiveness of evidence, judges conclude discretional evidence through inner conviction based on elaboration on the debate and investigated evidence, with the precondition that the form of discretional evidence through inner conviction meets the standards of legal evidence, the so-called "discretional" refers to a kind of relatively restricted freedom. Secondly, it focuses on the historical evolution of discretional evaluation of evidence. With the development of scientific technology of the western countries, discretional evaluation of evidence in Continental Law System puts more emphasis on the roles that law of experience and law of logic play on discretional evidence through inner conviction and emphasizes the restrictions that standards create on discretional evidence and the requirement of two principles, namely, "enlightening by discretional evaluation evidence through inner conviction" and "the duty of the demonstrations of legal standpoints". It points out that discretional evaluation of evidence system has experienced a change from a traditional one to a modern system.Part two analyzes the legal foundation of discretional evaluation of evidence system. Firstly, it explores from three perspectives the legal foundation of discretional evaluation of evidence system, namely, discretional will, law of experience and high probabilism. Secondly, it points out the rationality of the existence of discretional evaluation of evidence system in modern society. That is to develop the useful and discard the useless of the system of the legal evidence. It suits the commodity economic society and tightly links with the reliability of the quality and qualification of judges. It is based on the development of science and technology.Part three illustrates from the necessity of establishing discretional evaluation of evidence system. Firstly, it reflects on the practical and realistic system of the legal evidence and concludes that the typical feature of the evidence system is to achieve absolute objectivity. With the rapid development of China, the above system has gradually failed to adapt to the development and suffered criticism from the academia. It further points out that traditional evidence system is based on the old materialistic epistemology and we should adhere to the instruction of Marxism philosophy to lawsuit. The name of "practical and realistic evidence system" is not advisable and we should seriously evaluate the instructive role and significance that 'practical and realistic evidence system" has worked on lawsuit evidence. Secondly, it explores the necessity of discretional evaluation of evidence in civil action and concludes that the establishment of discretional evaluation of evidence system is the inevitable factor of lawsuit cognition rules and is the objective necessity of the improvement of China's present judicial practice. The establishment of discretional evaluation of evidence system can improve the quality of judicial judgment, promote the independence of judges, advance the improvement of judge's quality and build up judicial authority.Part four explores the feasibility of establishing discretional evaluation of evidence system. Independent judgment lays legal foundation and free certificate provides realistic foundation of establishing discretional evaluation of evidence system. The quality of judges cannot justify the denial of the system and the reform on judgment procedures lodges demands of the system from an objective perspective.Part five is the key part of the paper and expounds on the construction of discretional evaluation of evidence system. It points out that the construction of this system is not a total discard to the traditional "practical and realistic evidence system", but a full use of China's present legal resources and absorbing the rational factors of western discretional evaluation of evidence system in order to reconstruct the original feature of China's free judgment right of practical and realistic evidence system. Firstly, it elaborates the interior necessity of establishing discretional evaluation of evidence system in China. Judge's conscience or judge's occupational morality is one of the necessities to ensure judicial justice; following the law of experience and law of logic is the most essential requirement of the efficiency of judge's evidence judgment; high probabilism functions as a measure to restrict judge's discretional evaluation of evidence. The publicity of judge's discretional evidence that facts, procedures and conclusions are subjected to be testified will bring improvement of both the quality of judgment and judges. Secondly, it illustrates the exterior ensurence of establishing discretional evaluation of evidence in China. The establishment and fulfillment of the system demands genuine independent judicial ensurence to ensure the independent position of judges involved in lawsuits and the effective implement of the panel discussion system to transform the nominal status quo of the panel and bring into play the role that the panel play in preventing wrong evaluation evidence. It is an important measure to ensure the rationality of discretional evaluation of evidence system. Exerting the role of restrictions of appeal and re-trial, ensuring the media's free supervision over the process and conclusion of discretional evaluation of evidence, and audition will improve the objective of the conclusion of discretional evaluation of evidence made by judges.