On The Legal Theory And Institution Of Free Proof

Free proof means, in litigations, judges or juries freely evaluate the weigh of proof by using rules of thumb and logical rules according to which they will find the facts of related cases, only based on their reason and consciences. Evidence system experienced system of divinity evidence and legal evidence system in the course of its evolution before the establishment of the system of free proof. With the development of capitalism, the advance of science and technology, as well as the spread of enlightenment thought, legal evidence system was increasingly been criticized, as a result, European countries substituted legal evidence system with free proof system as a fundamental institution of procedure law system.In spite of the advantage of free proof system which greatly stimulated the subjective initiative of judges, a power of free proof without any restriction would surely lead to arbitrary judgment. Therefore, it is an important issue how to correctly deal with the relationship between truth finding and power control. Determinacy is significant to a legal system, and it is critical to ensure the predictability of judicial processes and consequences. Proceduralists contend that the acceptability of fact finding derives from due process more than reasonableness of judges'evaluation of evidences. Pragmatists concern more about the consequences of judicial decisions, they believe that free proof, compared to explicit rules, are more beneficial to find out the truth of related cases, and thus realizes the consequential justice.Traditional free proof system partially emphasized the freedom of judges'rationality and consciences, but ignored the restraint to judges'power of discretion. Modern system of free proof was established on the base of criticism of the tradition system. The core of modern system of free proof consists of two aspects: limitation on the abuse of judges'discretion, and scientific application of rules of thumb and logical rules. Modern system of free proof restrict capacities of evidences by rules of evidence, set limits to certain evidences'strength, classifies and systematizes rules of thumb, put emphasis on publicity of judges'evaluation of evidences, and secure the objectivity of free proof through appeal system.However, there are some disadvantages of modern system of free proof exists. Judges often draw to a preliminary conclusion with their inherent prejudice, then reconstruct facts selectively, so the effective of publicity of judges'evaluation of evidences is doubtful. And, fact-finding is mainly depends on experience, which is difficult to justify by logical rules most of times, hence, to discloses the reasons of evaluation will have a side effect on the truth-finding function. Meanwhile, the publicity of the evaluation process of judges may impair the principles of the judge's neutral. Social diversity result in the diversity of judges'values and social experience thus increases the non-determinacy of the judges'choices and applications of rules of thumb. Career judges lack social experience, and their knowledge to the specialized fields is far more from enough, therefore, this kind of judges can not serve the needs to properly use rules of thumb. To restrict the capacities and strengths of evidences by evidence rules may cause a restoration of legal evidence system; in addition, advocating the standard of"legal truth"will lead to mere formality of evidence rules.Currently, there are also a lot of factors which is not adapt to the system of free proof, such as lack of judicial independence, quality of judges'which is to be promoted, less restraint to the free proof by the appeal system, etc. In the light of the China's circumstances, as well as the universal problem of the free proof system, the author tries to propose some solutions, including to make judge elite, to establish more democratic judge appointment mechanism, to reform the judge selection mechanism, and to a appropriate publicity of evaluation of evidence on the premise of adhering to the principle of judges'neutrality, so to make the system of free proof work better.