证据裁判主义的功能分析

证据裁判主义主张的以证据为依据是指法官必须将判决理由予以公开宣示,即所谓公开法官心证过程。其功能之一是弥补自由心证之天然缺陷,通过公开法官心证过程来实现社会对法官裁判的监视;其功能之二是用证据的可采性检验证据的可出示性。给我们的启示,一是证据裁判主义使逻辑规则由实体正义转变为程序正义,具有从人治向法治转变的价值;二是证据裁判主义彰显了证据规则的本质。我国除了诉讼法或证据法宜明确规定自由心证和证据裁判原则外,对狭义上证据规则的规定宜采取特别谨慎的态度,至少一是应强调法官自由裁量原则;二是强调当事人自治原则。

The Functional Analysis of The Evidence-judging Doctrine

The proposition of the evidence-judging doctrine is on the basis of evidence,which means the judge must declare the verdict reasons (judge's evidence evaluation).One of its functions is to recuperate the natural defect of the free evidence evaluation,realizing the social surveillance to the judge's judgment by this way.The other is to test the evidential production by its admissibility.There are two pieces of enlightenment for us.The first is the evidence-judging doctrine has made the logical rules from substantive justice to judicial justice,which has turned ruling by person into ruling by law.The second is it has showed the essence of the evidential rule. In our country,we should take especially cautious attitude to regulate the evidence rules in narrow sense,except that the law of procedure and of evidence could regulate principles of the free evidence evaluation and the evidence judgment.And at least,we should emphasize first the principle of the judge's discretion and second the principle of the parties' autonomy.