我国的民事诉讼证据制度问题/张纽约(2)
关键词
证据制度 自由心证 “实事求是”的证据制度 法律真实 法官心证 高度盖然性
ABSTRACT
Evidence is the basic of justice. People often say, "Going to court is to make evidence ", and it is obvious that the important status of evidence in the contemporary lawsuit. Civil action evidence system of broad sense means the legal norm of stipulating evidence, evidence collecting, evidence checking and judging and how to use evidence to prove the case fact; and the narrow sense only means the evidence system type of civil action. In the history of mankind, the evidence system has been gone through from evidence system of prophesy to system of legal evidence, and then reaches the evidence system of judicial discretion. The evidence system of prophesy is eliminated by history, because it is not rational and barbarous. And the system of legal evidence is replaced by the evidence system of judicial discretion, because it is too rigid and machinery. Judicial discretion has gone through two kinds of shapes of the traditional judicial discretion and modern judicial discretion. Traditional judicial discretion because of their excessive to put emphasis on judge's cutting out amount freely, and without any restriction, and it apt to cause administration of justice wanton. After 1930s, because of the weak point of the traditional judicial discretion, various countries began to carry on the transformation to the traditional judicial discretion, introduce the evidence rule, give the essential restriction to the right of cutting out amount of judge's administration of justice, in order to ensure the objectivity of judge's heart card, realizes the justice, thus established the principle of the modern judicial discretion.
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