Civil Presumption and Its Application Mechanism Research - Collection of Excellent Doctoral Theses in Civil Procedure Law from Southwest University of Political Science and Law

Author: Zhao Xinhui
Publisher:
Publish Date: 2006-08-01
Features: The development of the Western evidence system has generally gone through historical stages such as the divine evidence system, the statutory evidence system, and the system of free heart and mind. China's evidence system has gone through early divine evidence systems, a feudal period where statutory evidence was dominant with some discretionary judgment by the adjudicator, to the period of the Nationalist government when the system of free heart and mind was established. After the founding of the People's Republic of China, influenced by the Soviet legislative model, ideology, international political landscape, and other factors, civil litigation has taken "seeking truth from facts" as its evidence system. The difference between the "seeking truth from facts" evidence system and the system of free heart and mind lies in:
(1) The standards for judging case facts differ. Looking at the system of free heart and mind in Western countries, it is combined with a probability-based standard of proof. In civil litigation in civil law jurisdictions and regions, the standard of proof is high probability, while in common law jurisdictions and regions, it is preponderance of the probability. In contrast, the "seeking truth from facts" evidence system emphasizes a thorough investigation of case facts, and probability generally cannot enter the concept of "seeking truth from facts." The idea that case facts might be this way or roughly like this is difficult to be accepted by mainstream civil procedure law scholars. Mainstream civil procedure law scholars often discuss whether the adjudicator should investigate case facts and whether the adjudicator can investigate case facts.
(2) Whether the adjudicator's factual judgment can be fully reviewed by a third party differs. An important aspect of the system of free heart and mind is that the adjudicator can independently judge case facts based on law, experience, and moral conscience, and the process of their judgment is difficult to be reviewed by a third party. The adjudicator's process of forming their heart and mind and their own psychological activities have long been considered a mysterious realm that excludes others' understanding. Of course, this situation varies in the fact-finding of civil litigation in civil law and common law jurisdictions. In common law jurisdictions, due to the emphasis on due process and absolute formalism in the adjudication process, the judgment of the adjudicator has always been regarded as the voice of God. The system design does not establish a review mechanism for fact adjudicators or require them to explain the reasons for their judgments or the reasons for their findings of fact. Due to the influence of history and legal culture, civil litigation in civil law jurisdictions has always regarded the discovery of case facts and the realization of the value goals of substantive law as its primary task, giving substantive justice a priority that common law jurisdictions' civil litigation does not possess. In specific system design, it not only establishes a retrial procedure rarely seen in common law jurisdictions, designates the second-tier court as the fact-finding court that can review both facts and law, but also requires the adjudicator to present the reasons for their findings of fact and the process of their findings as important duties. So, does this mean that the psychological process of fact-finding can be reviewed by a third party? In fact, it is not. Research shows that fact-finding activities and other cognitive activities are not, as emphasized by empirical philosophers, rational and meticulous analytical processes, but rather full of leaps and non-rational impulses. After forming non-rational cognitive results or conclusions, the argumentation process or the process of explaining reasons by the cognitive subject is merely a process of seeking justification for their original cognitive results. In other words, from this perspective, the explanation of fact-finding reasons and the argumentation of fact-finding results deviate from the actual cognitive activities of the adjudicator. Under free heart and mind, what can a third party review about the cognitive activities of the fact adjudicator? The third party can only review the relatively abstract content that can be detached from the specific characteristics of the case. These contents can be applied in many unspecified cases. The focus of the third party's review is whether the adjudicator's fact-finding activities violate these abstract normative requirements and whether different treatment results are made based on whether they violate them. These abstract norms include law, experience, and morality. The "seeking truth from facts" evidence system emphasizes the objectivity of cognitive results and the objectivity of the cognitive process. This objectivity is manifested in that different cognitive subjects, when they reach the correct cognitive conclusion, arrive at consistent and identical conclusions about the same cognitive phenomenon. That is to say, as long as the cognitive result is correct, it can withstand the review of others, the test of others, and the test of practical activities. A comprehensive review of the fact adjudicator's fact-finding activities has become a feature of China's "seeking truth from facts" evidence system. This feature reflects both full trust in the cognitive ability of the adjudicator, as it assumes that humans can recognize the objective world, and a certain degree of distrust or skepticism toward the cognitive ability of the fact adjudicator. Therefore, in China's civil litigation, both the appellate procedure and the retrial procedure take the re-examination of case facts as their basic content and are equated with the supervision of the fact adjudicator. As a result, the relationship between superior and inferior courts in China's civil litigation is one of supervision and being supervised, and the retrial procedure is also known as the trial supervision procedure.
The common point between the "seeking truth from facts" evidence system and the system of free heart and mind is that the law does not make mandatory provisions on the evidentiary force of a specific form of evidence. More directly, both China's "seeking truth from facts" evidence system and the system of free heart and mind belong to the free proof model corresponding to statutory proof. This is different from the irreconcilable conflict between free heart and mind and statutory proof. China's "seeking truth from facts" evidence system has a high degree of compatibility with the system of free heart and mind, and this compatibility also makes it easier for China's evidence system to transform into the system of free heart and mind. The Supreme People's Court's "Provisions on Certain Issues of Civil and Commercial Evidence" (hereinafter referred to as the "Evidence Provisions") can be said to reflect this transformation to some extent. The "Evidence Provisions" Article 64 stipulates that adjudicators shall, in accordance with the legal procedures, comprehensively and objectively review evidence, judge independently whether the evidence has probative force and the degree of its probative force based on the provisions of the law, in accordance with the judge's professional ethics, and by using logical reasoning and daily life experience, and shall disclose the reasons for their judgment and the results of their judgment.