Free Proof And Its Application In Civil Procedure

Judicature is the last bastion of Social Justice, and Judicial Justice is the foundation of a harmoniously developing rule-of-law society. In Civil Procedure, judges exert judicial findings of fact and the enforcement of law, realizing rights in papers and turning abstract justice into justice in cases, at which Civil Procedure aims, and which is the foundation of existence and development of Civil Procedure. Finding of fact is the precondition of application of law and foundation of judicial judgments. In Civil Procedure, civil judgments will be castle in the air and Justice will have no access if findings of fact do go wrong or be distorted on purpose. Consequently, the power of free proof of evidence in rule-of-law nations was vested in judicial judges, in order to ensure the proof of facts in a right way in cases, which is called free proof and highly valued in countries of the Continental Law System as "foundations of findings of fact without prejudice, Magna Charta of principles of proof of evidence, and non -convertible choice of evidence system in its evolution".Free proof, however, has been misconceived and sedulously repulsed in China. For the subjectivity in the proving process in lawsuits and judging on the judges' own free reasoning, the problems of judicial proof cannot be simply solved by ignorance of free proof, on the contrary, the ignorance has resulted in series of deadlocks of both legislation and jurisdiction. With the transformation from central-planned economy to market economy, our country's jurisdiction is also undergoing great changes, and it comes out to be enormously complicated: on one hand, we have accumulated numerous judicial resources and experiences; on the other hand, there are still considerable theoretical misapprehensions and practical defects to correct. In Civil Procedure, for example, finding of fact is the main point. Through...