Process of proof analysis -- Evidence from the perspective of the subjectivity of judicial case (lower)

Objective to protect the four judge evidence
    (a) with "heart": the route one must take human trial
    The process of evidence judgment is subjective, but also subjective judgment method. Divine judgment, legal evidence and free proof and evidence judgment method, in different extent reflects the human rationality to the referee subjective initiative admit. However, divine judgment and legal evidence system is beyond subjective thinking in the referee's seeking objective equivalence determined, to justify their own.
    "Rituals God" society, including the ceremony, is the concentrated reflection of life in which people political, cultural life. In the trial, trial, water fire duel as manifestations of the divine judgment era, is a sign of non by God revealed to ascertain. The ancient people only believe in God's judgment, the reasonable and the concept of justice is based on the belief in God and worship of gods, the results will be justice and authority. However, judicial proof water trial, trial, fire duel, irrational, sometimes also can produce a rational effect. For example, guilty psychological parties might affect their oath manner; guilt can make people do not set in the center of God or the loss of morale, duel. [8] at the same time, the God sentences does not necessarily rely on a particular way, is very flexible in its religious in the trial practice, evident in the "God" of the people of wisdom. India is traditionally a "gods Xiafan" society. In southern India, there is such a legend: a man in ancient times, with very large force is known, as was angry and abandoned his wife. An angel dressed as his appearance, stepped in. A few months later, the husband really angry, back home, problems arise. Then, a Mariyatai-raman Brahmin was asked to judge, judge who is really the husband, who is not her husband. He really knew her husband very large force, so he ordered them in one fell swoop by a boulder; really husband make out the whole body strength to lift a few inches high, while the fake husband is like a feather, the boulder above his head. So the people shouted: "without a doubt, the boulder overhead is really husband." However, judge Mariyatai-raman has announced that the first person is really the husband, because he did do everything in one's power is human, and even the mighty man, can only do this step; and the second person to do, only God can do. [9]
    Compared with the inquisition to the deification of the human intelligence recognition, system of legal evidence form reduces the referee subjective arbitrariness, but in essence is to judge the evidence necessary to use unscrupulous divisive tactics have provided more power. Legal evidence system of legal requirements, according to different forms of evidence, proof and evidence provided all kinds of evidence rules, the judge must make decision. Strengthening demand this form of litigation and the judicial power of the state is closely related to. It is cruel, arbitrary characteristics. On the one hand it negates the judgment of God, let judgment from God to the world under the control of the early Middle Ages in Europe, replacing the oppressive feudal society the fight referee and divine judgment as a method of making stops numerously lawsuit. On the other hand, it provides a legal basis for the judicial arbitrariness, played by judicial arbitrary -- torture to extract confessions -- resist aristocratic society any of the jurisdiction intervention effect. Because of the civil judicial officer does not have enough authority to resist the powerful nobles induced said, bribery and threats, system of legal evidence provides some preventing the pressure method to judge. It appears in a certain extent, is the need for God's judgment against religious influence to establish and consolidate the feudal monarch power. Generally speaking, the system of legal evidence in the proceedings, and the progress of civilization in Europe an important humanitarian, produced a great influence on the judicial activities, and for the proceedings to reasonable investigation case represents a major step forward. [10]
    Found on the revelation of God, the pursuit of the best evidence and legal evidence form, belong to judge individuals outside the external criterion, show distrust of individual ability to judge potential. After the bourgeois revolution, European countries gradually established the free evaluation of evidence system, judicial gradually thorough obtain humanistic features. The free heart certificate that is "free judgment of evidence", the law is not prescribed the probative force of evidence and choice standards, and by the judge according to their own inner conviction evidence. The so-called "assurance", fingering, through evidence as judged by the formation of inner belief to -- or is sincerely convinced degree believe firmly. Determination of [11] free heart certificate to give judicial officer has the right to independent trial and to make more accord with the fact of the facts of the case, the legal evidence and change the cumbersome to have a significant effect. Since 1791, the French constitutional conference issued a bull officially announced the "judges have their own inner conviction as the only according to the judgment of obligations" and in 1808 France issued the world's first step in the code of criminal procedure establishes the principle of free proof, free evaluation of evidence is the ideal law procedure reform in china. [12]
    The free heart certificate is to judge the heart know "facts" as the facts of the case, the judge with "heart" to "discover" the facts of the case. Methods this is evidence in the west the Lutheran and science advances, "the nature of the gods, from clear all human mind projection in which the idol in nature", "the religious consciousness to personal earnest, intrapersonal and strenuous spiritual so that a higher level", [13] referee right thoroughly from internal demand cleric and the hand of the dictator returned to the judiciary. The concepts of the judicial progress is crucial, it is based on the separation of the three powers of the government, in the legal history of the first full give judges independent judicial power. An accurate understanding of the free heart certificate, must take the history background as the basis, to understand its revolutionary meaning.
    (two) "objective fact" card
    Constraints inherent law of 1 procedure to judge the "heart" card
    The definition of the free heart certificate is not to say that the thought of what, the facts of the case is what. The judge could not be legal constraints. Considering the status of the western high and strict selection system, the free heart certificate is to be procedural constraints, it is nothing more than to protect the rich knowledge of the judge make a fair decision. To understand the free heart certificate from the overall characteristics of the civil litigation system in western countries, and it is easy to see this point. First of all, the free heart certificate should be based on the court. In 1877, the criminal procedure code of Germany provides that: "the court should be based on the full court of the inner conviction, to determine the results of investigation of evidence." By 1892 Russia issued Criminal Procedure Ordinance: "the magistrate should be convinced that according to the established revealed in consideration of the court of the heart, to judge the problem of the person on trial." in civil law, the principle of debate, the principle of direct and verbal trial of the prerequisite and the formation of proof. Judges and lawyers, the judge must be personally on the basis of direct trial. For example, the Civil Procedure Law of the free heart certificate 247th Japan [doctrine] provisions: "the court judgement, should consider oral argument all the will and evidence investigation results, on the basis of free evaluation of evidence judgment about the fact that whether it should be identified as true." The law article 249th [directly] provisions: "doctrine of judgment shall be made in the case of oral debate basic judge; in the replacement of the case, the parties concerned shall report the results of previous oral argument; in the replacement of a single judge or replacement of more than half of the collegial panel of judges circumstances, on previously asked the witness, if a party proposes to ask for, the court should make the inquiry." German Civil Procedure Law Article 286th [free heart certificate] provisions: "(1) the court should all contents into the debate and the results of investigation of evidence available, through the free heart certificate, to judge the fact that whether can be considered true. As the "heart" card according to the reasons, shall be recorded clearly in the judgment. (2) the court only in the provisions of this law, the laws and regulations on evidence of constraint."
    Secondly, the free heart certificate based on the adversary. In the civil procedure law French newly built in 1998 as the representative, the civil procedural law of France in the first volume of the first chapter lays and clearly stated it followed the "basic principles of litigation". Especially with the relevant parties expressed the most prominent. The provisions of the Civil Procedure Law of France, "but the parties have the right to bring a lawsuit", "system for standard on the basis of the parties litigation request to determine the" judge ", only with the request for the Declaration", "the parties are responsible for the claim and the facts", "in any case, judge not to make up for the parties cannot present evidence and take the pretrial preparatory measures," etc.. As the direct guarantee "heart" card, the new French civil law article 179th - 183 of the special provisions of the judge in the parties come to the scene or to summon the parties to the case, the judge the truth of any aspect of a case to review, verification, assessment or action replay or declaration procedures and requirements. In order to solve the civil litigation since private civil rights and obligations of the dispute as the goal, give the dominant position of the parties in the program, the parties to respect the dispose of procedural and substantive issues of the right, is a reflection of social democracy in the judicatory.
    Once again, the debate principle into the litigation rights of the parties to the judge of fact finding clear and hard constraints. The theory of modern civil litigation principles that debate has the following three meanings: (a) directly determines the necessary facts of legal effect or destroy must appear in the debate, does not appear in the debate of the facts cannot be used as foundation and basis of the referee. In other words, the court can not to parties not claimed facts as the basis of judgment; (two) the court shall not dispute between the parties (including the fact that parties' fact) as a basis in fact judgment. In this sense, the court directly affected by the actions of the parties; (three) the court investigation evidence is limited to both parties in the debate that the proposed. That is to say, the judge's initiative to collect the evidence, can only be limited within the scope of the parties claim. [14] the three layers of meaning that right of action to judge the permissions restrict development of basic concept in fact. At the same time, because the western countries to implement system of three trial, a trial of second instance trial of fact, is, therefore, review the facts of the case also restrict the judge of evidence.
    Therefore, the law of evidence by judges heart card free judgment, is to give the judge a judicial authority, but also give judges loyal to law only faithful to the law. In the complex social reality, any legal decisions or administrative measures are subject to pressure from various aspects. Therefore, the need to create a relatively independent of external environmental decision-making "sound space program". "Here, only the plaintiff, the defendant, witness, agent, expert witnesses, regardless of their social or buy a melon is the new director Wang; here, only discuss the judgment in the dispute, regardless of morning and evening tea, traffic congestion; here, only consider the facts and legal issues in connection with the case; regardless of spring and Autumn Annals, 500 years before and 500 years after the earth crisis. In a word, through the series relation social influence and not to the point of prejudices, exclusion of unnecessary burden, obtain an equal dialogue, self judgment of Jiefang District." [15] to perfect in the proceedings as the premise, the judge believes the facts, is a program for arbitrary limits rather than to judge subjective fault free. Our theory of evidence law tradition insist that the free heart certificate is the thought method of idealism, and claims that the Soviet Union 30 years the expansion of the error, and in power at the time dimension Xin an adhere to judge evidence can not achieve the absolutely true to a certain extent, [16] is biased. Once the legal institutions cannot be independent of personal arbitrary authority, legal person together with their belief in law can only be hack tools. The free heart certificate or inner conviction as a judicial method to judge evidence to establish judge, is in conformity with the technical elements of human reason in judicial process, there is no violation of materialist dialectics, as the evidence judging method did not make a lot of case of power.
    2 the burden of proof on the objective support of the facts of case
    Process of judicial cognizance of the fact of a case is a subjective process, is a process of the personal experience has happened. In order to make the process and the result of judgment has the credibility and authority, social trust and the trust in the judicial system, the judges and the parties were put forward such a request: from the referee's perspective, emphasizes the wisdom and knowledge of law, strict selection method, standard; from the point of view, perfect the burden of proof system, is to establish the litigation procedure is important one annulus. [17]
    The degree of evidence to prove the facts of the case, we have the following several different situations: (1) the existing evidence is sufficient, the dispute case facts to be proved the fact proved; (2) the attack and defense force, the existing evidence can't testify the facts, the facts to be proved existence is unknown; (3) proved that the certificate to the facts is not enough, but the possibility that the facts to be proved that there will be greater than the possibility does not exist; (4) the existing evidence to prove the facts is not enough, the possibility that the facts to be proved not exist the possibility of greater than. In section (1) cases, the court may rule of law according to the facts that the facts to be proved in the corresponding assumption, launch rights exist or do not exist in the judgment; (2) cases, the evidence of the fact that does not exist, judge advocate the fact that the parties requested content not set up; in section (3), (4) cases, the judge can respectively determine the claims that the truth of the existence of the request of the parties is established and not established. But in either case, the court finds that the facts is the judge's subjective that fact, the judge is in conformity with the requirements of procedural justice. While making theoretical basis that is recognized by the theory of burden of proof. The burden of proof civil procedural theory establish such idea:
    First, that the burden of proof has two implications: the burden of proof burden and the behavioral significance. [18] through the establishment of the burden of proof result meaning, to stimulate the initiative party to perform the behavior meaning of burden of proof. To ascertain the facts, only through the historical facts left "traces" -- this means litigation evidence. By both parties to the litigation evidence evidence and defense, justice card fact existence get a basic conviction. If the evidence cannot be proved, or that the judge not by evidence that one party advocated and others argue the facts to be proved the existence or non existence, so, the judge can not achieve the understanding of the case "the truth".
    Second, establish the distribution principle of burden of proof, provides the system safeguard for the maximum found the objective truth. In many cases, to be the facts proved that the judge, the fact is close to the truth, not not exist is unclear; some cases there are facts to be proved is not clear, but even so, the judge can't refuse to make the case, also can be the burden of proof according to the results of significance the referee.
    Through the process of self-discipline, freedom of expression and the judge "heart" certificate for the independent trial, the rights and obligations are not affected by the non normal factors outside of the legal procedure. Correspondingly, the judge should have a high degree of social responsibility, especially the occupation groups in the society should be made legal literacy culture the best people, they have independent judicial authority, there is fear of power, the spirit of seeking the truth and security status. In this way, will not be able to set up the judicial justice and authority.
    Conclusion: admit judge "heart" card in the evidence law in China
    Our civil procedure law requires the referee "seek truth from facts" to the facts of the case, seek truth from facts is the principle of evidence judgment. Seek truth from facts contain two aspects: the identification of the facts of the case or judgment is fully in conformity with the real target, and to achieve the goal by the court actively evidence investigation. Find out the truth through our original mode of action or the trial structure. It emphasizes the necessity of court investigation evidence, do not care about the judge's neutral and independent judgment on the realization of the significance of legal status, results in the formation of "authority" or "super powers" trial "mode". The court investigation process, not just to collect evidence for ascertaining the facts, but also in the solution for the right and compulsory both parties accept the mediation. To find the truth in a sense become the court mandatory mediation means. So, not the adversary proceedings, but the court procedure to promote, the parties will persuade education as the task of civil procedure and, rather than the procedure as judge "is" preponderance of evidence "to persuade the parties" process. [19]
    Too much emphasis on the subjective judgment of evidence of objective concepts, in the establishment of market economy and adapt to the legal, judicial reform, not only led to the abuse of mediation system, and has been with the civil litigation practice can not adapt to: (1) strengthen the party's burden of proof and not in accordance with the legal elements classification distribution the burden of proof by contradiction. In continental law system, the allocation of the burden of proof on the "French Civil Code", "German Civil Code" as the representative for the prediction of the main body of the market economy behavior consequences, cover and contain everything the law as a premise, [20] and can set the allocation of the burden of proof rules for the realization of procedural justice relief. [21] and China's legal system is incomplete, the judiciary law with discretion greatly, in legal meaning unknown or not depending on the circumstances, the judge is the law, [22] resulting in not the burden of proof by law but by the judges establish continuous random case sharing rules phenomenon. (2) determining and reviewing the uncertainty in contradiction. On the one hand, the rule of law, judicial concept generalization and deterministic was elevated to the supreme position, corresponding relation between the determination of rules of law by deductive inferences of syllogism in the case, that the premise has been set by legislation, judiciary to find is the minor premise of fact; on the other hand, shoulder the task of trial the judge of fact finding ability has been the legislators and law itself is suspected, the facts of the case is the object again understanding. The law requires a high -- to find the truth of the case "to judge the standard of evidence, such as can not find out, will make a decision. The important reason for the facts of the case is not clear, the evidence is not fully established as appeal. Appeals judge, applicable scope is not limited to the law, but can be examined on laws and facts of the party appeals section. The retrial procedure, has the facts of the case as the main basis of error. At the same time, the people's court within the system of "misjudged case" accountability system will also be the fact is not sufficient, the evidence is not conclusive as the most clearly misjudged cases standard. In order to understand the objectivity of the facts of the case reached the court case, the judge can once again overturned, the determining of challenges. Such conflicts, the identification to enter the program after the facts of the case can not be with the actual facts, to the materialist theory of judicial practice must not be allowed to exist outside the program facts constitute and procedures in fact differences. [23]
    At this stage of the overall quality of the judge is not allowed in judicial legal rules applicable in cases of doubt when the rule of law, therefore establish the premise of the rule of Law -- in a syllogism is necessary, however, the judge applies to specific facts in the case, the law, continue to doubt in judicial proceedings ability of fact that is not appropriate.
    First, the trial way reform in our country has trained a large number of judges, the rapid development of legal education has trained many outstanding talents to join the justice and law research team. Because of the legal inattentive, legal essentials classification fact is not may be very subtle, specific cases the burden of proof on how to share the unclear, the inevitable need to play more of a role. At the same time, because of the demand of the market economy on the legal system, judicial function is increasing, requirements of justice should have great authority. Objective subjective cognizance of facts, no limit on the number of cases of reexamination can not rely on, and should rely on the judicial political and professional quality assurance.
    Secondly, the fact that require up to the ideal height absolute objective, is not completely "law enforcement concept caused by heavy entity light procedure". Because the referee process including fact finding is still the procedure law, procedure law to Philosophy objectively based on norms evidence judgment standard, law enforcement officers in pursuit of this standard is still in compliance with procedural law, rather than substantive requirements. Therefore, the independence of procedure law itself is an important reason, can not simply blame despise procedure in judicial practice and ignoring the procedural justice, but first of all should be completely repel with the independent value of procedure factors existing inside the procedure to eliminate. [24]
    In short, the objective truth as the standard of proof, is the philosophical theory of ideal or theoretical wisdom, and the law practice or legal technology belongs to the practice of ideal or practical wisdom. [25] the operational requirements of legal technology and philosophy ideal mix, to produce such an outcome, which does not recognize the free heart certificate, also did not prevent the abuse of free proof measures, such as to prevent the free heart certificate secret or the black box operation, leading to the judicial practice in our country, the results of any the judge behavior, unpredictability has reached the extent of injustice and incapable of further increase, this is also the referee. The Supreme People's court in the "about some problems of the civil trial way reform opinions", to use legal evidence in the practice, the form and force of the evidence shall be determined, to constrain the behavior of judges. However, as long as there is no complete with legal evidence system to restrict the judge the evidence cognizance, judge the heart card still exist in our litigation system, in the rules of procedure particularly rough circumstances, the judge "proof" freedom is very big, have provided a huge space covered shy to judicial corruption. As long as we don't have to with no reality whatever revelation of God to prove the method, not in evidence in the form of arrangement of shapes and rating for the proof, we have to admit that the "heart" card is now. Now, we need to discuss is the objectification of the "heart" of card, and should not be in one way or another excuse to deny the free heart certificate.

    Authors: Xiao Jianhua. China University of Political Science and Law associate professor, researcher procedural law research center of China University of Political Science and Law.