The Constituent Elements Of Free Evaluation Of Evidence

Most jurisconsults think that the mode of evaluating the evidence experienced three stages:God Proof,Legal Proof and Free Proof.When the judge who hears facts obtains the power and freedom of confirmation of facts once again,people begin to oppugn the reasonableness of Free Proof,because the judge has the right of discretion,which could not be restricted.The focus is whether fairness of the judgment may be ensured through only the rationality,conscience and capabilities of the judge.However,when oppugning Free Proof,curiosity made us to ponder over that the legal system of western countries is advanced undoubtedly,and that most of these countries adopt Free Proof system? Due to the influence of the ideology and legal class consciousness,many people may assume that the judge would evaluate the proof with his arbitrariness when it comes to the "freedom" of Free Proof system.Article 64 of The Evidence Law Of Civil Procedure Of The Supreme Court of the People's Republic of China in 2001 terminated this argument of necessity and feasibility of establishing Free Proof system in China.A case named "Pengyu case" occurred in Nanjing in Sept.2007,made us memorize the argument of Free Proof.We focus on Free Proof again.But now,we do not focus on necessity and feasibility of establishing the system of Free Proof,but on how to establish a scientific and reasonable Free Proof system.After years'developing,Free Proof is not just an abstract term,but a complicated system.This dissertation aims at how to establish a scientific and reasonable Free Proof system,through analyzing the "Pengyu case".This dissertation comprises five parts besides introduction and conclusion.ChapterⅠmainly introduces the definition, significance and scope of Free Proof.ChapterⅡmainly studies the definition, fundamental theory and application of debate principle,which balance the power of the judge and the right of the litigants.ChapterⅢfocuses on the research of how to confirm evidence,facts,and makes an assessment of the application of such theory in "pengyu case".Chapter IV deals with common sense and logical principle,that is most important thing to the judge when confirming evidence and deducing facts.Because,choosing different common sense may obtain different results,which strongly affects rights of the two parties.Chapter V solves question that how to make judge open his confirmation about capability,value of evidence,and why he choose this evidence instead of that evidence,why he choose this common sense instead of that one,and also makes an assessment of the application in the "pengyu case".The more the judge opens his confirmation,more conviction the litigants feel.The author considers that,a scientific and reasonable Free Proof shall have the aforesaid four elements,the lack in one of which may results in the abuse of Free Poof of judges.Relevant parties may appeal or apply for retrials on such grounds and the courts may set aside the judgments.In the end of this dissertation,the writer makes a conclusion of"Pengyu case" based on theory mentioned above.In fact,"pengyu case" reflects a very common problem in exploiting the free proof of Chinese judges,that is,why does this experience law rather than that experience law applies,and why does this evidence rather than the evidence is accepted.As Free Proof is not open to outside in disputable events,the Free Proof is mysterious and uncertain.And it is because there is no communication between the judge and relevant parties,parties will lose their trust in the judgments of Court as they lack in predictability.Therefore the rate of appeals and retrials is rather high,which is a waste of limited legal resources.The author considers that,we shall make more research on judgments like the "pengyu case" and open to the public the results,which will have a considerably active impact on the theory and practice in law.