01. free heart evidence
I in the previous article "China's civil litigation in the three standards of proof and the application of the situation" to the competition as an example of excellence in grade to explain the relationship between the abstract standards and concrete indicators. Indeed, as "excellent" belongs to a standard and "more than 90 points" belongs to the connotation of the specific quantitative indicators, regardless of which standard of proof, is a principle standard. The only way to achieve this is to meet the specific criteria, and we certainly hope that there will be a "yardstick" that we can follow, or else we will not be able to grasp it.
In the period of divine evidence system, such as swearing to God, dueling, or letting some kind of animal on behalf of the gods to smell the disputing parties so as to determine the facts of the case, etc., these are also a standard of proof, and even objectively very easy to grasp, only that it does not have the scientific, objective only. After the divine evidence system, the emergence of statutory evidence system, that is, at the legal level directly stipulates that a certain or a certain type of evidence is stronger than other evidence (China's 2002 Civil Evidence Regulations, Article 77 embodies a strong color of statutory evidentialism, 2019 Civil Evidence Regulations has been deleted), to facilitate the adjudicator to directly refer to the case. We must recognize that, despite the obvious defects of the legal evidence system, and even easy to cause the wrong case situation, but it does have its own progress in the history of human justice, in limiting the discretionary power of the judge, to enhance the two sides of the litigation on the outcome of the case to predict the accuracy of the important role.
After the emergence of the free evidence system, the human judicial system has a qualitative leap, free evidence system is also relatively the most scientific standard of proof scale. The so-called free heart evidence, with the academic language expression refers to all the evidence of the magnitude of the power of proof as well as the evidence of the selection and use, the law does not make provisions in advance, but by the judge according to their own conscience, rationality and free judgment, and according to the formation of the inner conviction of the case of the facts of a system of evidence. Take civil litigation as an example, the plaintiff and defendant in order to prove their own claims will submit evidence to the court, but due to the litigation interests of both sides are relative, so for the same fact both sides may submit tit-for-tat evidence to "attack" and "counterattack". As the judge is not a deity, can not stand in the "God's perspective" 100% restore the objective reality, so the judge can only stand in the "public perspective", on the basis of both sides of the evidence, according to their own life experience, combined with the rule of thumb, rational logic of the whole case for Comprehensive analysis, judgment, and ultimately form their own inner conclusion (inner conviction), a disputed fact "exists" or "does not exist" evaluation. For example, for the application of a high degree of probative standard of proof of the facts of the case, if the judge combined with the evidence in the case that the existence of the facts to be proved with a high degree of probability, then the law will be regarded as the existence of the facts. This process of free mental evidence, not like the legal evidence system as directly based on the type of evidence of both sides of the nature of the value of the contrast so as to mechanically make a determination, but dynamic, repeated a comprehensive cognitive approach. This way of factual determination, its path and basis in line with the general cognitive law, compared with the legal evidence system that mechanical comparison of evidence to prove the size of scientific and reasonable. Statutory evidence system is like machine arithmetic, the plaintiff and defendant's respective evidence will be entered into the machine software than the results, although the standard objective easy to operate, but easy to cause mechanical judgment and thus wrongful convictions; and free evidence system, all based on the judge himself, each case is "customized", on the surface of the greater subjectivity but The result is more likely to be close to the objective facts, more rationalization.
Of course, the judge based on free evidence of this "existence" or "non-existence" evaluation, but a "legal reality", rather than objective reality. In other words, if the judge combined with the evidence of the plaintiff and defendant, that the probability of the existence of a fact to be proved to a "high degree of likelihood", the law will be regarded as the fact of the objective existence of the fact (this refers to the application of a high degree of probability of this standard of proof of the fact). This "existence" is a subjective judgment of the probability, the objective may also be the opposite.
It is important to note here that we say that the current free evidence system is the mainstream or the most scientific system, does not mean that there is no general rules of evidence in the certification of evidence. We take section 77 of the Civil Evidence Regulations 2002 as an example, which gives several general circumstances of the strength of proof comparison rules. Some of these rules are really unreasonable, such as "direct evidence is generally greater than the probative value of circumstantial evidence"; but some have a great reference value, such as "witnesses to their relatives or other closely related to the party in favor of the testimony, its probative value is generally less than the other witnesses The item "Testimony of witnesses in favor of their relatives or other closely related parties is generally less probative than that of other witnesses". Although reasonable, but it is really not appropriate to write into the law. Why? Because once such express provisions, will certainly be abused and even misused, thus bringing immeasurable negative domino effect in judicial practice. The rule if you remove the word "general" has become an absolute expression, that of course is not right; but with the "general" this qualifying word, but where the judge level of normal, specific to a case in the end to be admitted which party's testimony, based on the evidence of the whole case comprehensive judgment Analysis can be based on the evidence in the case, that is, based on the principle of free evidence, the final conclusion may be so, there may be the opposite. That is to say, the rule can be used as a guide to reference in the process of the judge's free will can be used, but ultimately whether to apply on a case-by-case basis. This is the accurate application of the rule of circumstances, but if the rule is abused by the judge, such as the "general" mechanical application of the "must", then it is very easy to cause wrongful convictions. Why in the past year or two, teachers corporal punishment of students in the news repeatedly, one of the reasons is that the "right to education and discipline" is unreasonable. Because this right once opened the mouth is very easy to be abused, deteriorate into corporal punishment. In fact, we carefully look at the provisions of the right to discipline will find that the content is good, the purpose is also well-intentioned, but as the rules of evidence, the rules themselves are not a problem, but the problem is easy to use in the person.
Another point we should know is that although Article 77 of the 2002 Civil Evidence Regulations was repealed due to the strong color of statutory evidentialism, Article 64 of the judicial interpretation (Article 85 of the 2019 Civil Evidence Regulations) also provides for the principle of free conscience (Article 105 of the Judicial Interpretation of the Civil Procedure Law is also an embodiment of the principle of free conscience). We do not put the principle of free conscience and specific rules of evidence in complete opposition, that all the bright culture of the rules of evidence are unreasonable, which of course goes to the extreme (to distinguish between the bright culture of the rules of evidence and the concept of "statutory evidentialism").2002 Civil Evidence Provisions of Article 77 was repealed, in addition to the following reasons Some of the contents of the legal evidence is indeed more colorful and contrary to the principle of free evidence, is what I said above, is that the judicial interpretation of the judicial practice may be abused and therefore had to be deleted.
In fact, all the rules of evidence in accordance with the principle of free conscience are reasonable. Just for some of the rules of evidence, may be due to the limitations of the legislative technology (such as the wording of the expression is not appropriate) and other reasons, may be in judicial practice to bring the negative impact of bad (i.e., the judge due to the varying standards of evidence law and the emergence of the mechanical application of the law), it is not suitable to be written into the provisions of the article. (In the rules of evidence, there are the so-called "reversal of the burden of proof", "presumption of law", etc., are these against the principle of free conscience? This point we will talk about later)
02. Scale plate theory
? "Free mind" this concept is also easy to bring people doubt: since the nature of the various standards of proof are a cover subjective judgment, are the judge's own evaluation, then the judge himself has a relatively more objective, easier to grasp the inner "scale"? "it? For example, a high degree of certainty is "highly probable"? This kind of doubt gave birth to a way of understanding - "dial theory", put forward by the German scholars Egorov, Masson and so on. According to this theory, if the judge based on the evidence of both sides of the litigation in the heart of the possibility of the existence of a fact to be proved in more than 75% of the "high degree of probability", can be found that the fact to be proved. Later, some scholars on the basis of this deduction play, put forward "beyond a reasonable doubt" standard is 85% -99%, a high degree of probability standard is 75% -84%, cover the superiority of the standard is 51% -74% (this dial theory can be regarded as a specific quantitative form of probability theory. Which "beyond a reasonable doubt" standard can of course be understood as 85% -100%, 100% is fully consistent with the objective truth. (In criminal cases, if the evidence is indeed extremely sufficient, then 100% is also entirely possible to achieve).
At present, this "dial theory" has been increasingly recognized by the academic community in our country, but there are different differences in the specific percentage interval division standards. Standing in the personal point of view, due to the "cover" is a subjective judgment based on evidence, no matter how to divide this psychological "scale", can not persuade the dissenters, after all, it is not a kind of things can be seen and felt (for example, what is the basis for). Why do you require that the intervals between the three criteria be whole percentages, but not decimals? If we were to take this on, it would be a never-ending controversy, but it wouldn't help solve any practical problems). Therefore, this theory may not be suitable for a long time into the specific law or judicial interpretation, it is only suitable for "active" in the theory of evidence law level, but for the majority of legal practitioners or scholars, the application of the above division of standards for us to grasp the various standards of proof of the connotation is not inappropriate, and even a great deal of help.
That based on this dial theory of the formation of the heart of the conclusion of the evidence is there a test (some scholars called "subjective and objective consistency test")? We can approximate the mathematical probability theory mentioned above. For example, if the sample size is large enough, a high degree of probability of such a standard of proof should be more than 75% of the people surveyed believe that a fact to be proved exists (only high, not low). In other words, the judge's personal level of inner conviction should be roughly close to the result of such a probabilistic statistical thought experiment (juries in U.S. state courts are voting on the facts of a case, and it is common, for example, to require that verdicts in general civil and criminal cases result in a vote of 9 or more out of the 12 jurors. 9/12, which translates into a percentage of exactly 75%; (Cases in which the charge of murder is established require a unanimous, unanimous vote).
There are also a couple of little things we need to understand here. Although the dial theory was proposed by German scholars, civil law countries, including Germany, rarely or largely do not discuss or describe the standard of proof in terms of probabilistic methods. Civil law countries criminal and civil litigation basically apply the same standard of proof, such as Germany and France, apply the standard of reasonable doubt (although the name is called "beyond a reasonable doubt", but the specific how to understand may be a person's word is not the same problem. Some scholars also said civil law countries to prove the standard is "inner conviction" or "the standard of probative value"). Dial theory in the common law countries have been widely used, in our academic circles have been widely valued, which is a bit of "wall flowers outside the wall" flavor.
Then, if we have to pay attention to the evidence of jurisprudence will know that, even on this dial theory, domestic scholars have a lot of ideas, such as the three standards of proof will be expanded to more different levels of the cover interval (i.e., expanding the standard of proof of the level). I personally believe that there is absolutely no need, the current three standards of proof has been sufficient to apply to the practice of various situations, to say improve, may be in the specific fact-finding procedures on how to be more objective, scientifically carried out, may be more meaningful.
Then there is this subjective psychological scale given mathematical way of understanding, do not agree with the people may never agree (China's jurisprudence there are some well-known scholars opposed to this dial theory). But if we look at with an accepting mind, we will find that life is actually a lot of similar applications, and is not limited to the field of evidence law. For example, the operations research profession has a decision analysis method called "hierarchical analysis" (management courses will also learn this method), the essence is also a subjective problem with relatively objective indicators to break down the operation. Of course, we can say "What's the point of making these data-based calculations for something that is purely subjective? And then how to set up human are subjective, can not be objectified", but it is since the 1970s by the American operations researchers invented after it is indeed in all walks of life in a number of fields have been widely used.
I remember when I first came into contact with this hierarchical analysis in the classroom, the teacher gave an example: Suppose we boys have the opportunity to Fan Bingbing, Liu Yifei, Yang Mi, the three beautiful stars in the choice of a wife, how would you choose? There can be many ways to choose, such as flipping a coin in a random way or by inner feeling to decide, but if we will choose a wife of the indicators materialized, such as sexy, face value, fat and thin, tall and short, character, etc. are assigned with a number, then finally through the arithmetic, it is possible to come up with a comprehensive ranking. If you try to calculate once, you will find the previous trade-offs around the difficult, such as the three beautiful stars have their own advantages, Fan Bingbing is sexy beauty, Liu Yifei is the traditional beauty, Yang Mi is Lori beauty (when Yang Mi is certainly far younger than now), through the hierarchical analysis method of decision-making in this way, you instead of the more convinced by the conclusion of the calculation.
In fact, the current trend of combining humanities and social sciences has become more and more obvious, and even in life there is much more than just probability theory or hierarchical analysis of these two applications. Typical examples of this is that math is widely used in the study of many social disciplines, for example, in the eyes of mathematicians, almost everything can be expressed by the formula. "Everything is number" and everything can be viewed through a mathematical lens (this was the claim of the Pythagorean school in ancient Greek times). No matter how much we may object to this fusion of disciplines, it is happening for real and progressing at a rapid pace, so why shouldn't we approach it with an open mind. Although the degree of the judge's inner conviction is still subjective in terms of the current state of technology, with the development of brain science, who dare to say that in the future there will not be a widely accepted externalized measurement index? From this point of view, it can be predicted that the dial theory will certainly become the mainstream theory of evidence law on the standard of proof.
Conclusion:
The key to understanding the concepts of "free evidence" and "dial theory" is that although free evidence is a subjective way of determining the appearance of arbitrariness, but it is an objective evaluation criteria --The judge's subjective factual findings based on the principles of evidentiary adjudication are to be consistent with the findings of the general public. This subjective and objective consistency test is the probabilistic embodiment of the dial theory.
Then, the issue of the standard of proof, if purely doctrinal explanation is more complex and boring. For example, the representative of the common law system countries - the United States, some scholars say that the United States in the field of civil litigation is a binary standard of proof, and some scholars say that there are nine standards of proof. But if we talk about the United States of America's main standard of proof system, in fact, is the "preponderance of evidence" this kind of, and then add "clear and convincing evidence" this kind of. Then why scholars even people's national standard of proof in the end what is the appearance of the existence of different claims, the reason I also said before, in fact, is mainly caused by academic cascade effect. So, for people who like theory, if we do not intend to personally engage in academic research, then the most important thing for us is to have eyesight - to be able to identify which scholars or academic writings are of a higher caliber, and to focus on the writings that they have written.
Scale plate theory, I think it will become the mainstream theory of the field of evidence law because, first, it is in line with the nature of interdisciplinary integration (i.e., subjective scale "objectivity"); secondly, it has a subjective and objective consistency of the test of the theoretical basis (the United States jury vote to determine the facts of the case is a direct embodiment of this theory); thirdly, it has a subjective and objective consistency of the test (the United States jury vote to determine the facts of the case is this theory). The direct embodiment of this theory); Third, it is in line with the cognitive laws of human thinking. Why the discipline of probability theory has been created and widely used in various fields of life? In fact, the underlying reason is precisely because human rationality is limited. The facts of the case in the litigation must be either true or false, but because we are not God, can not control all the information, then we as ordinary people how to determine the truth of the facts, can only be based on the evidence of the whole case, and supplemented by a set of procedural law system. The plaintiff insists that a fact is true, but the defendant does not necessarily recognize (such as misrepresentation); and vice versa. The parties with opposing litigation interests are, of course, at odds with each other, and that can only be deferred to a third party with judicial authority - the judge. If the judge based on the popular perspective (the neutral perspective of the rational person), according to the principle of free evidence combined with the evidence in the case that a fact to be proved is true (assuming that the effective judgment found), then both sides will have to obey the judgment - because the judge of this kind of conclusion of the heart can be verified by the externalization of the conclusion - even if the questionnaire survey of big data. -Even with a big data questionnaire, the evidence supports the judge's factual findings (e.g., at least 75% of respondents agree with the judge's conclusions). Isn't this kind of decision-making the familiar "majority rule" mental model? As for the existence of opposing viewpoints, it is either against the specific scale percentage figure itself (but this requires long-term judicial practice to make adjustments), or against the formation of this kind of mental conclusion of the procedure (for example, whether it is necessary for our country to refer to the United States jury voting system to determine the facts of the case). These can certainly be improved, but that is another topic.
Note: the possibility of more than 75% of this highly probabilistic proof standard, if analyzed strictly from a probabilistic point of view, it should be referred to in the same case (i.e., the evidence in the case is completely consistent), assuming that the case can be copied in large quantities, so the judge appeared to be wrongly convicted of the probability of 25% or less (as if the probability of a coin tossing test of the probability of appearing heads or tails of 50%, which is verifiable through a large number of tests). (This can be verified through a large number of tests). However, in terms of real litigation, as with the U.S. jury voting system, we can at best only count the percentages by approximate sampling. This should be understood, strictly speaking, the nature of the two percentages are fundamentally different.