A Study On The Determination Of The Probative Power Of Defective Private Documents

In the judicial practice of civil litigation,flawed private documents appear in large numbers in judicial practice,and more and more people pay attention to flawed private documents in theory.However,the provisions of our country’s laws on the evidence of defective private documents are not perfect.In reality,there are the theoretical dilemma that the authenticity of the documentary evidence and the probative force do not match,the practical dilemma that the way of determining the probative force is inconsistent with the rules,and the institutional dilemma that the judge’s free mind and evidence regulation is not perfect.A more reasonable definition of defective private document evidence should be made in the way of "abstract + enumeration + exclusion".For the theoretical predicament,it is necessary to clarify the relationship between authenticity and probative force in different contexts,and understand the "truth" for which the parties bear the burden of proof as probative force,and the "truth" presumed to have signed documentary evidence as formal proof.Regarding the practical dilemma,on the one hand,it is necessary to clarify the judgment path for the determination of the probative force of defective private documents,adopt the path of "form first and then substance" in the determination of the path,and adopt a stage-by-stage judgment method in the division of impact.On the other hand,it is necessary to clarify the specific rules for the determination of probative force,and determine the standard of proof of probative force according to different situations;after believing that the documentary evidence has formal probative force,it is ruled out that it has substantive probative force,and the party presenting the evidence should still bear the burden of proof.Regarding the institutional dilemma,the judge’s free testimony is restrained by standardizing logical rules and empirical rules,strengthening the "highly probabilistic" standard for determining the probative force,and disclosing the free testimony process and reasons.