Study On Objectification Of The Doctrine Of Discretional Evaluation In Civil Litigation

In the civil procedure,it is found that the contradictory relationship between the subjective initiative of the referee and the restraint of his subjectivity and arbitrariness has long puzzled the study of civil procedure theory and the development of trial practice.In particular,since free evaluation of evidence has replaced statutory evidence as the leading principle of evidence judgment,we should find a balance so as to ease the tension between the discovery of the truth of the case and the evaluation of evidence by the judge,it has become a difficult problem to be solved urgently in the theory and practice of litigation,which can be basically attributed to the objectification of inner conviction.It is an inevitable trend of the modern development of free evaluation of evidence that the objectification of inner conviction is based on emphasizing the realistic basis of objective evidence and seeking the objective and correct evaluation of evidence to obtain the truth of fact.In 2001,article 64 of the Several Provisions of the Supreme People's Court on Evidence in Civil Procedures formally established the system of free evaluation of evidence.However,due to China's civil litigation system,evidence legislation,judicial policy factors and inherent system defects,the system of free evaluation of evidence has not really brought into play its system advantages and practical value,it also deviates from the basic direction of the objectivity of psychological proof,and may even fall into the new hidden danger of abuse of discretion.Therefore,the reform of the free evaluation of evidence system and the realization of the objectivity of psychological proof has become an inevitable requirement of the modern development of our country's free evaluation evidence system.In order to ensure the rationalization and objectification of inner conviction,the developed countries and regions in the rule of law outside the country mainly restrict it mainly from the subjective requirements,procedural regulation,standard of proof and subsequent supervision and relief.In order to fully guarantee the space of the freedom of psychological proof,give full play to the advantages of the system of evaluation of evidence freely,and ensure that judges form correct,reasonable and scientific evaluation of evidence,China should base on the necessary elements for establishing objective evaluation of evidence from the probability of the rule of experience,the evidence of the standard of externalization,improve the rules of evidence and touch a series of peripheral systems to regulate and balance,which must under the guidance of the principle of objective evaluation of inner conviction.Based on the above,in addition to the introduction and conclusion,the body is divided into four parts.The first part aims at discussing the basic theory of the objectification of the doctrine of discretional evaluation in civil litigation,and there is no clear and systematic theoretical explanation about the theory of the objectification of inner conviction.Therefore,this chapter tries to explain and analyze the basic system theory,connotation and system function of the objectification of inner conviction.The second part focuses on the analysis of the theoretical and practical difficulties and causes of the system of free evidence in civil procedure.In order to reveal the non-identity of our country's free evaluation of evidence theory with the objective tendency of psychological proof,and to provide the basis for the inevitable choice of the objectification of inner conviction.The third part aims at summing up the effective experience of foreign countries and regions in practicing the objectification of inner conviction through the investigation and analysis of their practices,which gives us some enlightenment about the construction of the system theory of the objectivity of psychological proof.The forth section of the article is in response to the necessity and feasibility of the objectification of discretional evaluation of evidence in civil litigation,under the guidance of the principle of objectification of inner conviction,and rooted in the legal soil of our country,it puts forward the standard design and path choice of the objectification of the doctrine of discretional evaluation in civil ligation.