A Study On The Relationship Of Free Evaluation Of Evidence And The General Knowledge, The Common Sense And The Reasonable Sentiment

Free evaluation of evidence has already become the basic principle of evidence-evaluation in our country's criminal prosecution. Under this background, further studies of what theoretical knowledge and concrete method should be utilized are of practical significance, as well as how to select the intrinsic factor and external system to affect the judge's recognization of the fact.This paper discusses the relationship of the free evaluation of evidence and the general knowledge, the common sense, the reasonable sentiment. The author means to make a way to deconstruct the relationship between them and make the way become a starting point.The author also opens a new way for the free evaluation of evidence to play a role in examing the evdience and recognizing the fact.This paper was divided into four parts in addition to the introduction.It amounts to more than 30,000 words.The first part:the outline of the free evaluation of evidence.The concept and the connotation of the free evaluation of evidence are elaborated at first, as well as the dialectical materialism epistemology's foundation and the mutual recognition foundation.The paper makes a comparative analysis regarding the discretional evaluation of evidence in british law system and civil law system. It summarizes it as the difference between the main body and the standard of the conformation of the discretional evaluation of evidence.The second part:the outline of the general knowledge, common sense and reasonable sentiment.The connotation and the type of them are introducted in this part. Specifically, "the general knowledge" is the basic experience to deal with the relationship of the human and human, as well as that of the person and the nature,"the common sense" is the basic principle to deal with the relationship of the human and human, "the reasonable sentiment" refers to the basic emotion that the social public insists generally. Through comparative analysis, the paper compares the concept of the general knowledge and the empirical rule. It also compares the concept of reasonable sentiment and the general or indignant felling of the public.The paper also emphasizes that the utilization of "the reasonable sentiment" in the discretional evaluation of evidence can only be "the usual situation" in the probability significance. In this part,the author lists many examples to illustrate some special cases.These cases appear to violate the common sense and the reasonable sentiment but in fact they are reasonable.The connation of the common sense are discussed furtherly.The third part:the outline of the relationship between the free evaluation of evidence and the general knowledge, the common sense, the reasonable sentiment.This paper reconstruct the relationship thoroughly. The major point is:Firstly, the general knowledge,the common sense and the reasonable sentiment are the standards that the judge judges the strength and the relativity of the evidence. Secondly, they are the essential subjective bases that lead to the results of the discretional evaluation of evidence. Thirdly, they are the guarantee of the discretional evaluation of evidence.Fourthly, they are the intrinsic mechanism to the construction of relative legal system and legal principle in the discretional evaluation of evidence.This part focuses on the proof responsibility's effect to the general knowledge, the common sense and the reasonable sentiment.It also analyzes the the principle of judicial independence,the principle of avoidance, the collegiate system and the avoidance syetem.as well as the the general knowledge, the common sense and the reasonable sentiment which are included in the prosecution system.This part explains the subject that affects the discretional evaluation of evidence. It also explains the essential system of safeguards to the free evaluation of evidence. The general knowledge, the common sense and the reasonable sentiment play a whole role in the utilization of the free evaluation of evidence.The fourth part brings forward its own ideas on how to give full play to the general knowledge, the common sense and the reasonable sentiment,how to realize the function to recognize the fact and how to strengthen the acceptability of the referee. Firstly, this paper affirms the significance of the general knowledge, the common sense and the reasonable sentiment in the criminal justice.They can develop the judge's cognitive capacity, increase the possibility to verify the truth of the case.They are the tools and standards to verify the truth of the case, simultaneously they are the magic weapons that the judge can use to get rid of the judicial risk. The general knowledge, the common sense and the reasonable sentiment play a positive role in the discretional evaluation of evidence.To make it true,people can do things as follows. Firstly change the verification pattern in criminal prosecution so that people can establish the genuine free evaluation of evidence and reduce the creation of rules, as welll as put them to the judje to make the free evaluation of evidence.Secondly expand the scope and the limit of the function of the general knowledge, the common sense and the reasonable sentiment and distinguish the stage from the character of "the instructive" function, "the understanding" function and "the evincive" function. It can help to strengthen the effect of the general knowledge, the common sense, the reasonable sentiment. Thirdly reform the written judgment to manifest the general knowledge, the common sense, the reasonable sentiment'effect to the formation of the conclusion. At first, great attention should be payed to the reason which the judge make in the proess of the discretional evaluation of evidence. Next, people should pay attention to the adoption of the opinion of both and the comprehensive illustion of the reasons in the reasoning part of the written judgment. Finally, the reason of sentencing should be payed more attention to devolop the active effect of the general knowledge, the common sense and the reasonable sentiment.