A Study On The Judicial Application Of Civil Litigation Freedom In China

China's social development has entered the new epoch,and has made many great achievements which shocked the world,and the judicial reform is also carrying out under many difficulties.The process of judicial refereeing is a dynamic process of subjective thinking and free cognition of the objective things by the judge,and the free evaluation of the evidence exists objectively in the judicial referee.But the civil litigation of our country does not give the justifiable status of he free evaluation of the evidence,nor does it take the principle of he free evaluation of the evidence as the principle of evaluating the evidence and identifying the facts under such circumstance.However,for a long time,despite the fact that our country has been opposed to the free evaluation of the evidence,and the practice circle have not clearly recognized the free evaluation of the evidence.Although in recent years,the academia and practical circle's attitude to the free evaluation of the evidence has been changed,but there is still no systematic study for the free evaluation of evidence,and there is also no clear legal status of the free evaluation of evidence,the lack using of free evaluation of the evidence in practice,leading to that various problems happening in the judicial application of the free proof.In order to study the problem of judicial application in civil litigation of free proof,first of all,we first traced back the birth of discretional evaluation of evidence,discussed its development,then defined the free evaluation of evidence in the context of Chinese civil litigation,and later selected 681 civil cases in the B city court to make an empirical analysis,interviewed with 42 judges in the B City Court.Under this circumstance,we found that there are six characteristics,for example,the existence of regular using of the free evaluation of evidence,greater influence of the main factors,the diversification of the way of application,the preference of the way of refereeing,the emphasis of the civil and commercial fields and the low degree of publicity in the operation of the the free evaluation of the evidence in the court,then we analyzed the problems of judicial application of discretional evaluation of evidence,found that there are three main problems in the judicial practice,using the proof rules mechanically,the negative application of free evaluation of evidence and losing the control of the free proof's using,the existence of the phenomenon of "super free the free evaluation of the evidence syndrome" and the use of free evidence in the wrong way.To further analyze the above problems,it is found that the main four reasons are the lack of institutional norms,the subject factor restriction,the restriction of technical factors and the measurement of the interest factors.However,the establishment of the free card system is not to be completed in the short time.In the case of our country's freedom of mind system has not been established and the judges of our country have been actually using the free evidence to judge,it is necessary to solve the problem that the judges have no specific rules in theuse of free evidence.As far as I am concerned,in order to solve the problems of judicial application of free evaluation of evidence,it is proposed that we should solve the problem from two aspects of system dimension and practice dimension.The system dimension points out that the relevant system of the free evaluation of evidence should be established in the field of civil litigation in China,including the establishment of the legitimate status of the free evidence system,the establishment of the rules of experience and logic,the openness of the the free evaluation of the evidence and other restraining mechanisms,the improvement of the rules of evidence,the establishment of the standard of proof,the establishment of a relief system for the violation of the free evaluation of evidence,establishing and perfecting the relevant supporting systems which included the modern judge system,the establishment of the trial power system,the implementation of the judicial responsibility system and the establishment and improvement of the guarantee mechanism for the judges.The practice dimension analyses the most important eight elements which are needed to be considered and discussed including objectivity,legitimacy,universality,exceptionality,debate,relevance,legitimacy and openness.According to the current civil procedure and trial practice procedure of our country,the practical dimension concludes the trial process into seven stages: the stage of trial preparation,the stage of induction,the stage of evidence investigation,the stage of fact investigation,the stage of court debate,the stage of fact finding,and the phase of the referee.Then,with the combination of the above eight elements and the seven stages,it set up the judicial application mode of the comprehensive discretional evaluation of evidence.According to the different stages and characteristics of the referee process,we should determine the free elements and specific operation requirements for each stage.We try to set up a comprehensive free trial mode of operation which is in line with China's judicial operation rules – the method combining the eight elements(first,objectivity;second,legitimacy;third,universality;fourth,exceptionality;fifth,debating;sixth,correlation;seventh,legality;eighth,openness)and the seven stage(first,pre court preparation stage;second,induction of the focus of dispute stage;third,evidence investigation stage;fourth,case fact investigation stage;fifth,court debate stage;sixth,fact identification stage;seventh,referee stage),in order to provide a set of practical norms for judges to solve the problems existing in the judicial application of the free evaluation of evidence when the free evidence system is not established but the free evaluation of evidence fits trial practice.The application of free evaluation of the evidence conforms to the requirements of the modern rule of the free evaluation of evidence,in order to realize the scientific evaluation of evidence and the fact and then the establishment of the free heart certificate system.