Empirical Research On The Practices About Hearsay Evidence In Our Country’s Civil Procedure

China’s civil procedure system has borrowed a large number of civil law rules and systems since its construction,while the concept of hearsay evidence comes from the common law system,so hearsay evidence is an "imported product" for China’s civil litigation evidence system.Although it is difficult to see clear provisions on hearsay evidence in China’s evidence system,with the exchange and cooperation of Chinese legal education and common law countries,hearsay evidence,a concept in Anglo-American evidence law,is also known by China’s legal circles,and its discussion in theoretical circles is increasing.Theory and practice are always intertwined,and the concept of hearsay evidence also appears in practice.In the course of litigation in some cases,when a party expresses its cross-examination opinion,it will use the evidence provided by the other party as hearsay evidence,so as to request the court to exclude this evidence,which is not used as the basis for determining the facts of the case.In the second instance and retrial proceedings,there may also be appellants or applicants for retrial who have accepted hearsay evidence by the court of first instance or the court of second instance as a ground for appeal or application for retrial.In judicial practice,lawyers and judges in China have a certain understanding of the concept of hearsay evidence.However,due to the complexity of the concept of hearsay evidence,even the United Kingdom and the United States,which are both common law systems,have very different understandings of the system.Affected by this,China’s theoretical circles are also inconsistent with hearsay evidence,and because there is no current legal system in China to make clear provisions on hearsay evidence,this situation inevitably leads to differences in legal practitioners’ legal understanding of hearsay evidence,and even in individual cases,there is a phenomenon of "Zhang Guan Li Dai" mixing hearsay evidence with other concepts.According to the empirical research conducted by the authors based on civil judgment documents,judges in various places also show different attitudes towards hearsay evidence in their judgments.The modern litigation system requires that judges make judgments in the middle,and the determination of the facts of a case requires judges to make a comprehensive judgment based on the evidence provided by the parties and the cross-examination opinions of the other party on the evidence.Due to differences in legal perceptions of hearsay evidence,the parties,their agents ad litem and judges often have different views on whether hearsay evidence has evidentiary capacity and probative power,and some courts do not have sufficient or no disclosure at all on whether hearsay evidence has evidentiary capacity and probative power.The superposition of the above reasons leads to deviations between the parties’ judgment expectations and the court’s final judgment,and the parties’ recognition of the judgment results is low,which ultimately affects the public’s trust in the judiciary.Therefore,the author hopes to summarize the experience of judicial practice through empirical research on judgment documents,and make suggestions for the construction of hearsay evidence rules in line with China’s national conditions in the future,so as to provide assistance for solving the above problems.Through the empirical analysis of cases involving hearsay evidence,the author believes that courts at different levels in China have explored and developed the experience of certifying the probative power of hearsay evidence in practice,and the author believes that it is necessary to attach importance to the experience explored and developed by courts in various places and build a hearsay evidence system in line with China’s national conditions in combination with China’s actual situation.By constructing unified rules of hearsay evidence to unify understanding,build unified discretionary rules to guide the exercise of judges’ discretion,and strengthen the degree of openness of judges’ mental evidence to improve the parties’ recognition of the judgment results.Specifically,combined with the current situation of low witness attendance rate in China and the traditional cultural factors behind this status quo,China should adopt a relaxed attitude towards hearsay evidence in the construction of the hearsay evidence system in the future,that is,give hearsay evidence the ability to prove in litigation,and judge the case situation in each case to judge its probative power,but at the same time increase the degree of disclosure of judges’ mental evidence.