Research On The Operation Mechanism Of Free Evidence In Civil Litigation

The court,to act as trial institute,has its major authority to “determine the fact” as well as “apply the law”.As for the fact-finding,civil law countries(regions) and our country adopt “Free Evaluation of Evidence Principle”,which authorizes the judge to determine case by case how the fact is proved and inferred through the evidences.Due to the diversity of cases,the complexity of evidence,and the cognitive differences of judges,this free evaluation of judges is often unstable.In China,the civil action free evaluation of evidence and the use of related systems,in particular,how it is reasonable control and protection system is still lacking,in-depth understanding.In order to find a solution to this problem,first of all,a principled analysis of the operating mechanism of free evaluation of evidence in the process of fact finding in civil proceedings.In view of this,the thesis analyzes the principle of free evaluation of evidence in the determination of facts in civil proceedings,and puts forward the thinking on the improvement of the related systems in civil proceedings in China.The thesis is divided into four chapters.The first chapter is an overview of the principle of free evaluation of evidence in civil proceedings,carded different theoretical perspectives and proposes defined herein to free evaluation of evidence.The thesis summarizes the principle of free evaluation of evidence in the legal norms of various ranks in China’s civil litigation,and briefly forms the process of testimony of fact-finding.Through the introduction of the development process of the evidence system,consider the necessity of restricting and guaranteeing the free evaluation of evidence system.The second chapter analyzes the basic the principles of free evaluation of evidence in civil proceedings,explains the premise status and basic role of the principle of evidentiary adjudication,distinguishes the principle of binding debate and the right to debate and their respective roles,proposes the targeted role of the principle of directness and verbalism on fact finding,and reflects on China’s current ignore the status of the principle of directness and verbalism.The third chapter analyzes the operation mechanism of fact finding in civil lawsuits.With the stand of testification as the target,the thesis establishes a system of fact determination in tandem with the evaluation of the probative force,the application of the rule of thumb,and the proof method.The thesis has formed an understanding of the connotation and function of the stand of testification,organized different types of the stand of testification,and put forward several special cases;analyzed the characteristics of probative force in the process of fact determination and the object of probative force evaluation-evidence authenticity and relevance;The role and content of the rule of thumb were clarified,and the legitimacy of the rule of thumb was analyzed from two aspects,namely the suitability of the scope of application and the public acceptability.Indirect proof,as the most typical and common mode of operation of evidence in facts,has the characteristics of systematization.Based on this,the thesis has constructed several basic models of indirect proof.The fourth chapter puts forward suggestions to improve the free evaluation of evidence in China’s civil proceedings,combined with the analysis of the first three chapters on the operation mechanism of free evaluation of evidence,to reshape the relevant basic principles,including the establishment of the principle of evidence adjudication and the construction of binding debate principles and the strengthening of the principle of direct speech;combing civil litigation certification standards,adjusting special certification standards;proposing regulations for the application of rules of thumb from the perspectives of content,applicable fit and acceptability,sorting out the contents of rules of thumb,improving the case guidance system,improving Participants’ participation in the application of the rules of thumb,improvement of the collegiate structure,etc.;encourage judges to demonstrate the process of fact finding;and propose indirect proof models for the dilemma of public evidence to improve the visualization of the evidence.