The Limitation And Restriction Of Discretional Evidence Principle In Civil Action

Xu Yunhe case, occurred on October 21, 2009 in Tianjin city, is one of the hot legalissues following Nanjing Peng Yu case, which has drawn the wide concern of media and public. During the whole process of the case, all the central points almost focus on the evidence about it. Thence whether the partial evidence involved in this caseshould be adopted or not becomes the core of the case problem, according to which “the discussion about the System of Discretional Evaluation” pulled open the curtainonce again in the legal science and judicature circles. Discretional Evaluation System indicates that in accordance with the relevant laws, the judge could have his own judgment on whether to adopt the relevant evidence, whether to adopt them as main evidences, on the basis of his rule of thumb, legal logic mode and the inner reason, and then employ the evidence and ascertain the facts of the case. However the Discretional Evidence Principle pertains to mandatory norm in public law, so during the process of the case, the judge does not completely hear the case according to “his personal preference to select the credible evidence”, his “freedom” is limited as well. The judge must estimate the probative value of the evidence under the certain legal framework and legal principles. In the process of analyzing Xu Yunhe trial, based on the relevant theories of the discretional evidence system, this paper points out that the method of first instance admitting the evidence and ascertaining the fact is contrary to the spirit of the discretional evidence system, on the basis of the differences of admitted evidence between the first-instance judges and the second trial judges.