0 1. Free evaluation evidence
In my last article "Three Standards of Proof and Their Application in Civil Litigation in China", I took the excellent degree of competition as an example to explain the relationship between abstract standards and specific indicators. Indeed, just as "Excellence" belongs to a standard and "over 90 points" belongs to the connotation of specific quantitative indicators, no matter what kind of proof standard, it is a principled standard. We certainly hope to have a "scale" to follow, otherwise we can't grasp it.
In the period of witness system, such as swearing to God, dueling, or letting some animal representing the gods sniff both sides of the dispute to determine the facts of the case. These are also a standard of proof, even easy to grasp objectively, but not scientific and objective. After the testimony system, the legal evidence system appeared, that is, it was directly stipulated that the probative force of a certain kind of evidence was greater than other evidence at the legal level (Article 77 of China's 2002 Civil Evidence Ordinance reflected a strong color of legal evidence and was deleted in the 20 19 Civil Evidence Ordinance), which was convenient for judges to refer to the case directly. We must admit that although there are obvious defects in the legal evidence system, even it is easy to cause misjudged cases, it does have its progressive significance in the history of human justice, and it has played an important role in limiting the discretion of judges and improving the accuracy of litigation between both parties.
After the emergence of the free evaluation of evidence system, the human judicial system has made a qualitative leap, and the free evaluation of evidence system is also the most scientific proof standard so far. The so-called free evaluation of evidence, expressed in academic language, refers to the probative force of all evidence and the selection and application of evidence. The law does not stipulate in advance, but a kind of evidence system in which a judge determines the facts of a case according to his own conscience and rational freedom and his inner conviction. For example, in civil litigation, both the original defendant and the defendant will submit evidence to the court to prove their claims, but because their litigation interests are relative, they may "attack" and "counterattack" the same fact by submitting tit-for-tat evidence. Because the judge is not a god, he can't completely restore the objective truth from the perspective of god, so he can only stand on the public's point of view, on the basis of evidence from both sides, according to his own life experience, combined with the rules of experience and rational logic, comprehensively analyze and judge the whole case, and finally form his own inner conclusion (inner conviction) and make an evaluation of "existence" or "non-existence" of a controversial fact. For example, if the judge thinks that the existence of facts is likely to be proved after combining the evidence of the whole case, it is regarded as the existence of facts in law. This process of free evaluation of evidence is not like the legal evidence system, which directly obtains the comparative value according to the types and nature of the evidence of both parties, so as to make a mechanical determination, but a dynamic and repeated comprehensive cognitive method. This way of ascertaining facts conforms to the general cognitive law of human beings, and is much more scientific and reasonable than the mechanical comparison of the probative force of evidence in the legal evidence system. The legal evidence system is like a machine. After inputting the evidence of the original defendant and the defendant into the machine software, the proportional result is obtained. Although the standard is objective and easy to operate, it is easy to cause mechanical judgment and cause unjust, false and wrong cases. The system of free evaluation of evidence is completely based on the judge himself. Every case is "customized" and subjective on the surface, but the result is more likely to be close to the objective facts and more reasonable.
Of course, the judge's evaluation of "existence" or "non-existence" based on free evaluation of evidence is only a kind of "legal truth", not an objective truth. In other words, if the judge synthesizes the evidence of both the original defendant and the defendant and thinks that the probability of a fact being proved has reached "high probability", it is regarded as an objective fact in law (here refers to the fact that the proof standard of high probability applies). This kind of "existence" is a subjective judgment of probability, which may be the opposite objectively.
It should be noted here that when we say that the current free evaluation of evidence system is the mainstream or the most scientific system, it does not mean that there are no general evidence rules in the process of evidence authentication. Let's take Article 77 of the Provisions on Civil Evidence in 2002 as an example, which gives several rules to compare the probative force in general. Some of these rules are really unreasonable, such as "the probative power of direct evidence is generally greater than that of indirect evidence"; However, some of them are of great reference value, for example, "the testimony provided by a witness that is beneficial to the parties who have relatives or other close relationships with him is generally not as powerful as the testimony of other witnesses." Although reasonable, it really shouldn't be written into law. Why? Because once it is explicitly stipulated, it will be abused or even misused, which will bring immeasurable negative domino effect in judicial practice. If the word "general" is removed from the rules, it will become an absolute expression, which is of course wrong; But with the qualifier "average", if the judge's standard is normal, we only need to make a comprehensive evaluation and analysis based on the evidence of the whole case, that is, according to the principle of free evaluation of evidence, the final conclusion may be so or the opposite. In other words, the rule can be used as a guiding reference in the process of free evaluation of evidence by judges, but whether it should be applied in the end depends on the specific situation. This is about the accurate application of this rule, but if this rule is abused by judges, such as applying "general" machinery to "must", it will easily lead to unjust, false and wrong cases. In recent one or two years, the news of teachers' corporal punishment of students frequently appeared in newspapers, one of the reasons is that the introduction of "the right of educational punishment" is unreasonable. Because once this right is opened, it will be easily abused and degenerate into corporal punishment. In fact, if we look closely at the relevant provisions of the disciplinary power, we will find that the content is good and the purpose is good, but like the above-mentioned evidence rules, there is no problem with the rules themselves, but the problem is easy to lie with the people who use them.
Another thing to know is that although Article 77 of the Civil Evidence Regulations in 2002 was abolished because of the strong color of legal evidence, Article 64 of the judicial interpretation (Article 85 of the Civil Evidence Regulations of 20 19) also stipulated the principle of free evaluation of evidence (Article 105 of the Judicial Interpretation of the Civil Procedure Law also embodied the principle of free evaluation of evidence). We can't completely oppose the principle of free evaluation of evidence with specific evidence rules, and think that all the evidence rules in Ming culture are unreasonable, which of course goes to extremes (we should distinguish the two concepts of cultural evidence rules and "legal evidence doctrine"). The reason why Article 77 of the Provisions on Civil Evidence was abolished in 2002 is that, apart from the fact that some of its contents are strongly colored by legal evidence and violate the principle of free evaluation of evidence, what I said above is that the judicial interpretation of this article may be abused in judicial practice, so it has to be deleted.
In fact, all the evidence rules of Ming culture that conform to the principle of free evaluation of evidence are reasonable. Just for some rules of evidence, due to the limitation of legislative technology (such as inadequate wording) and other reasons, it may bring bad negative effects in judicial practice (that is, judges may apply the law mechanically because of the uneven level of evidence law), so it is not appropriate to write them into the provisions for the time being. There are so-called "inversion of burden of proof" and "legal presumption" in the rules of evidence. Do these violate the principle of free evaluation of evidence? We'll talk about this later)
02. Dial theory
? The concept of "free evaluation of evidence" is also easy to bring people doubts: since the essence of various proof standards is a subjective probability judgment and the judge's own evaluation, does the judge have an internal "scale" that is relatively more objective and easier to grasp? For example, how sure is it that the standard of high probability belongs to "high probability"? This suspicion gave birth to a way of understanding-"Dial Theory", which was put forward by German scholars Egrove and Mei Sen. According to this theory, if the judge thinks that the possibility of a fact to be proved is more than 75% based on the evidence of both parties, it is "extremely likely" and the fact to be proved can be established. Later, some scholars deduced that the standard of "excluding reasonable doubt" is 85%-99%, the standard of high probability is 75%-84%, and the standard of probability advantage is 5 1%-74% (this dial theory can be regarded as a concrete quantitative form of probability theory. Of course, the standard of "excluding reasonable doubt" can also be understood as 85%- 100%, and 100% is completely in line with the objective truth. In criminal cases, if the evidence is really extremely sufficient, then 100% is entirely possible.
At present, this "dial theory" has been recognized by more and more academic circles in China, but there are different opinions on the specific standards for dividing percentage intervals. Personally speaking, because "probability" is a subjective judgment based on evidence, no matter how to divide this psychological "scale", it can't convince dissidents. After all, it is not something that can be seen or touched (for example, why should the three standards be divided into integer percentages, but decimals? If we insist on this point, the dispute will never end, but it will not help solve any practical problems. Therefore, this theory may not be suitable for long-term writing into specific legal or judicial interpretations, but only suitable for "activities" at the theoretical level of evidence law. But for the majority of legal workers or scholars, it is not inappropriate or even helpful to grasp the connotation of various standards of proof.
Is there a test method of evaluation conclusion based on this dial theory (some scholars call it "subjective and objective consistency test")? We can approximate it according to the mathematical probability theory mentioned above. For example, if the sample size is large enough, the proof standard of high probability should be that more than 75% of the respondents believe that a fact to be proved exists (only high or low). In other words, the degree of inner confidence formed by judges should be roughly close to the result of this probability and statistics experiment (juries in American state courts are actually a voting system in deciding cases. For example, it is very common that the voting results of general civil and criminal cases exceed 9 votes among 12 jurors. 9/ 12, which is exactly 75% when converted into percentage; Cases accused of murder require unanimous consent.
There are still a few small problems that we need to understand. Although the dial theory was put forward by German scholars, there is little or no discussion or description of the proof standard in civil law countries, including Germany. Civil law countries basically apply the same standard of proof to criminal proceedings and civil proceedings, such as Germany and France, which all apply the standard of excluding reasonable doubt (although it is called "excluding reasonable doubt", how to understand it specifically may be a matter of different opinions. Some scholars also say that the standard of proof in civil law countries is "inner conviction" or "probability standard for evaluating evidence". Dial theory has been widely used in common law countries, and it has also received extensive attention in China academic circles, which is quite a bit like "flowers inside the wall and fragrance outside the wall".
Then, if you pay attention to the academic research of evidence law, you will know that even about this scale theory, domestic scholars have many ideas, such as expanding the three standards of proof to more different levels of probability intervals (that is, expanding the level of standards of proof). Personally, I think it is completely unnecessary. At present, all three standards of proof are applicable to various situations in practice. If it is to be improved, it may be more meaningful to make them more objective and scientific in the specific fact-finding procedures.
Then there is the mathematical understanding of this subjective psychological scale, and people who disagree with it may never agree with it (some well-known scholars in China law circles oppose this argument). However, if we look at it with an accepting attitude, we will find that there are actually many similar applications in life, which are not limited to the field of evidence law. For example, in operational research, there is a decision analysis method called "Analytic Hierarchy Process" (this method will also be learned in management courses), and its essence is to subdivide subjective problems with relatively objective indicators to operate. Of course, we can say "purely subjective things, is it meaningful to do these data operations?" No matter how artificial it is, it is subjective and cannot be objectified, but it has been widely used in many fields of all walks of life since it was invented by American logistics scientists in the 1970s.
I remember when I first came into contact with this analytic hierarchy process in class, the teacher gave an example: Suppose we boys had the opportunity to choose one of the three beautiful stars, Fan Bingbing, Liu Yifei and Yang Mi, as their wives, what would you choose? There are many ways to choose a wife, such as flipping a coin at will or according to your inner feelings. However, if all the mate selection indicators such as sexiness, face value, fatness, height and personality are assigned by numbers, a comprehensive ranking can be finally obtained after calculation. If you try to calculate again, you will find that the previous choice is in a dilemma. For example, these three beauty stars have their own merits, Fan Bingbing is sexy, Liu Yifei is traditional, and Yang Mi is Lori (of course, Yang Mi was much younger then). After making a decision in this way through AHP, you are more convinced of the calculated conclusion.
In fact, the trend of combining humanities and social sciences has become more and more obvious, even in life, far more than probability theory or analytic hierarchy process. A typical example is that mathematics is widely used in the research of many social disciplines. For example, in the eyes of mathematicians, almost everything can be expressed by formulas. "Everything has a number", and everything can be viewed from a mathematical point of view (this is the idea of Pythagoras school in ancient Greece). No matter how much we oppose this phenomenon of subject integration, it does happen and is progressing with a rapid trend. Why not treat it with an open mind? Although according to the current level of science and technology, the degree of inner conviction of judges still belongs to the subjective category, with the development of brain science, who can say that there will be no widely accepted external measurement index in the future? From this point of view, it can be predicted that the dial theory will surely become the mainstream theory on the standard of proof in evidence law.
Conclusion:
The key to understanding the concepts of "free evaluation of evidence" and "scale theory" lies in: although free evaluation of evidence is a subjective identification method, it has an objective evaluation standard-the judge's subjective fact determination conclusion based on the principle of judging evidence should be consistent with the general public's evaluation conclusion. This way of subjective and objective consistency test is the probability theory embodiment of dial theory.
Then, if the problem of proof standard is explained purely in theory, it will be more complicated and boring. For example, the United States, the representative of the common law countries, some scholars say that the field of civil litigation in the United States is a double standard of proof, while others say that there are nine standards of proof. But if the main standard system of proof in the United States is actually "superior evidence", plus "clear and convincing evidence". Then why do scholars even have different opinions on what the national certification standards are? As I said before, it is actually mainly caused by the stratification effect of academic qualifications. Therefore, for people who like theory, if we are not going to do academic research ourselves, the most important thing for us is to have a vision-to be able to distinguish which scholars or academic works are of higher standard, mainly written by them.
The dial theory, I think it will definitely become the mainstream theory in the field of evidence law because, first, it conforms to the essence of interdisciplinary integration (that is, subjective scale "objectification"); Second, it has the theoretical basis of subjective and objective consistency test (American jury voting to determine the facts of the case is the direct embodiment of this theory); Third, it conforms to the cognitive law of human thinking. Why does probability theory come into being and be widely used in all fields of life? In fact, the deep reason is precisely because human rationality is limited. In litigation, the facts of the case must be true and false, but since we are not gods and can't control all the information, as ordinary people, how to determine the truth and falsehood of the facts can only be based on the evidence of the whole case, supplemented by a set of procedural law system. The plaintiff insists that a fact is true, but the defendant does not necessarily agree (such as a false statement); Or conversely, Dallas will go to the public gallery. Of course, the two parties with opposing interests in litigation will not give way to each other and can only obey the third party with judicial authority-the judge. If the judge believes that a fact is proved to be true (assuming it is confirmed by an effective judgment) based on the principle of free evaluation of evidence and the public perspective (the neutral perspective of rational people), then both parties have to obey the judgment-because the judge's evaluation conclusion can be verified externally-even if a big data questionnaire survey is conducted, the evidence in the whole case supports the judge's fact-finding conclusion (for example, at least 75% of the respondents agree with the judge's conclusion). Isn't this decision-making method the familiar psychological mode of "minority obeying majority"? As for the objection, it is either the specific percentage figure itself (but it needs long-term judicial practice to adjust) or the formation procedure of this evaluation conclusion (for example, whether it is necessary for China to refer to the jury voting system in the United States to determine the facts of the case). These can certainly be improved, but that's another topic.
Note: If strictly analyzed from the perspective of probability theory, the high probability proof standard of more than 75% probability should mean that under the same case (that is, the evidence of the whole case is completely consistent), assuming that the case can be copied in large numbers, the probability of the judge making a wrong judgment is below 25% (for example, the probability of both heads or tails in the coin toss test is 50%, which can be verified by a large number of experiments). But from the point of view of actual litigation, like the jury voting system in the United States, we can only count the percentage through approximate sampling survey at most. We should understand this. Strictly speaking, the nature of these two percentages is essentially different.