The Theoretical Framework Of The Free Proof Principle And Its Application

Free Proof Principle is a fundamental principle for regulating the relationship between freedom of proof and restriction of proof,answering basic questions of evidence like whether judicial proof needs restrictions,how to carry out restrictions and what matters that the restrictions pointed to.It is the starting point of the law of evidence.After several centuries of development,it has become the precondition and basic compliance of evidence law in both modern legal systems,leading the direction of evidence legislation and reformation.At present,evidence law of China is growing out of nothing,changing from few to many and from simple to complex,which means that it is experiencing a course of drastic reformation.In the course of the reformation,we pay more attention to the nonessentials of the specific rules instead of the premise of them,and the freedom of proof is potentially ignored.The study of the free proof principle can help to understand the relationship between the freedom of proof and the restriction of proof,and to provide enlightenment for distinguishing the logic of the evidence law of China.The first chapter discusses the theoretical origin of the free proof principle.The emergence and development of the free proof principle is observed mainly from the cognizing of the freedom of proof in both legal systems.Firstly,it researches three stages of the free proof principle in the common law system,including the judicial proof before 19 th century,the era of Bentham and the era after Thayer.Then it researches three stages of the free proof principle in the civil law system,including the judicial proof in the period of the system of legal evidence,in the transitional stage and in the inner conviction system.Lastly,it summarizes the free proof principle in both legal systems,drawing forth the topic of the relationship between the freedom of proof and restriction of proof.The second chapter is the theoretical abstraction of the free proof principle.Firstly,three kinds of ideal types are constructed by using the ideal type analysis respectively,including the statutory proof ideal type and the free proof ideal type,the norm of rule ideal type and the norm of principle ideal type,and the partial regulating ideal type and the overall regulating ideal type.Then by putting the practical material referring to the relationship between the freedom of proof and the restriction of proof in both legal systems to the coordinates of the three kinds of ideal types,three aspects of the free proof principle including proof idea,regulating means and regulating objects are abstracted,and the general theoretical framework of the free proof principle is constructed.The third chapter is the theoretical application of the free proof principle.It is taking the exclusion of illegally obtained evidence of China as a sample.Firstly,the panorama of the exclusion is described in three aspects from the perspective of the general theoretical framework of the free proof principle.Then it analyzes the immediate cause and remote cause of the exclusion in the view of the practice of judicial proof in China.Finally,the inspirations for the development of the evidence law of China are drawn by joining together the theory of the free proof principle and the practice of judicial proof in China.