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3 - The Transformation of Chinese Evidence Theories and System

From Objectivity to Relevancy

from Part II - Convergences between Systems

Published online by Cambridge University Press:  05 May 2022

By
Baosheng Zhang  and
Ping Yang
Edited by
Jordi Ferrer Beltrán  and
Carmen Vázquez
Jordi Ferrer Beltrán
Affiliation:
Universitat de Girona
Carmen Vázquez
Affiliation:
Universitat de Girona
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Summary

Fact, as the logical starting point of evidence law, is empirical in nature. It is this very feature of fact that shapes the basic attribute of evidence, i.e., relevance, and determines that fact-finding is a process of empirical inference. Hence, the truth ascertained by the fact-finder through the “Mirror of Evidence” is probabilistic, characterized by the probability of standards of proof. The “objective fact theory”, which has enjoyed a dominant role in Chinese legal scholarship and judicial practice for a long time, confuses empirical fact with objective existence. As a result, the theory of “objective evidence” was established, and judicial notions such as “seeking truth from fact” and “the perpetrator of every murder case must be captured” are derived from this theory. They not only accounted for the deficiencies in Chinese evidence theories and system, but also led to judicial injustices. In recent years, the Chinese evidence theories and system have evinced a trend of transformation, nevertheless, this transformation is still unfinished.

Keywords

Objective existenceempirical factrelevance rulesprobabilistic truthevidence system
Type
Chapter
Information
Evidential Legal Reasoning
Crossing Civil Law and Common Law Traditions
 , pp. 53 - 70
Publisher: Cambridge University Press
Print publication year: 2022

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References

Allen, R. (2010a). Relevancy and Admissibility, Evidence Science, 18, 375–82.Google Scholar
Allen, R. (2010b). The Relationships among Evidence Law, Procedural Law and Substantive Law, Evidence Science, 18, 750–60.Google Scholar
Anderson, T., Schum, D. and Twining, W. (2005). Analysis of Evidence, 2nd ed., Cambridge, New York, etc.: Cambridge University Press.CrossRefGoogle Scholar
Baosheng, Z. (2014). Evidence Law, 2nd ed., China University of Political Science and Law of Beijing.Google Scholar
Baosheng, Z. (2018). Evidence Law, 3rd ed., China University of Political Science and Law of Beijing.Google Scholar
Baosheng, Z. and Yang, Ping (2018). Rethinking Chinese Evidence Theories and Reconstructing System of Evidence: A Thread for the Pearls of Chinese Evidence, Frontiers of Law in China, 1, vol. 13.Google Scholar
Baosheng, Z., Zhong, Zhang and Hongqi, Wu (2016). China Justice Index Report, China University of Political Science and Law of Beijing.Google Scholar
Bergland, D. (1973). Value Analysis in the Law of Evidence, Western State University Law Review, 1, 162 ff.Google Scholar
Bian, J. and Shigui, Tan (2014). Law of Evidence, 3rd ed., Beijing: China University of Political Science and Law.Google Scholar
Chen, R. (2013). Visible Justice, Beijing: Peking University Press.Google Scholar
Chen, Y. (2003). Convergence and Departure of Legal Facts and Objective Facts: A New Perspective on History of Evidence System, 8 Journal of the National Procurators College.Google Scholar
Chen, Y. (2010). The Law of Evidence, Beijing: Renmin University of China Press.Google Scholar
Fan, C. (2012). The Law of Evidence, 5th ed., Beijing: Law Press China.Google Scholar
Garner, B. ed. (2004). Black’s Law Dictionary, 8th ed., St. Paul, Minneapolis: Thomson Reuters.Google Scholar
Habermas, J., (1996). Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. William Rehg translator, 2nd ed., Cambridge, MA: MIT Press.Google Scholar
Hao, Li (2004). On Finding Legal Truth Exemplified by Civil Procedures, Law and Social Development, 3.Google Scholar
Jiahong, H. and Weiping, Zhang (2011). Concise Evidence Law, Beijing: Renmin University of China Press.Google Scholar
Jianwei, Z. (2014). Essence of Evidence Law, Beijing: Peking University Press.Google Scholar
Jingui, P. (2012). The Law of Evidence, Beijing: Law Press China.Google Scholar
Lukai, C. and Shiqiang, Cai (2017). Examination of Evidence in Cases of the Uncertainty of Source of Drugs, People’s Justice, 17.Google Scholar
Norwood Russell, Hanson (1965). Patterns of Discovery: An Inquiry into the Conceptual Foundations of Science, The Syndics of Cambridge University Press.Google Scholar
Peng, Y. (2015). On Fact, Guangxi: Guangxi Normal University Press.Google Scholar
Popper, K. (2002). Conjectures and Refutations: The Growth of Scientific Knowledge, London: Routledge and Kegan Paul.Google Scholar
Qing, Y. (2013). Procedural Evidence Law, Beijing: Peking University Press.Google Scholar
Shen, D. (2013a). How Should We Prevent Miscarriages of Justice, People’s Court.Google Scholar
Shen, D. (2013b). On In Dubio Pro Reo, China Legal Science, 5.Google Scholar
Song, Y. (2003) Principles of Criminal Procedure, Beijing: Law Press China.Google Scholar
Stein, A. (2005). Foundations of Evidence Law, London: Oxford University Press.CrossRefGoogle Scholar
Tugendhat, E. (1982). Traditional and Analytical Philosophy. Corner, P. A. translator, Cambridge: Cambridge University Press.Google Scholar
Twining, W. (1985). Theories of Evidence: Bentham and Wigmore, California: Stanford University Press.Google Scholar
Wang, J. (2013). New Trends of Criminal Evidence Law in China, Beijing: Law Press China.Google Scholar
Weiguang, S. (1993). The Comprehensive Design of Scientific Knowledge, Beijing: Jinlin Renmin Press.Google Scholar
Wigmore, J. (1935). A Student Textbook of the Law of Evidence. In Black´s Law Dictionary, 8th ed., St Paul: Thomson Reuters.Google Scholar
Wittgenstein, L. (1974). Tractatus Logico Philosophicus, 2nd ed., Pears, D. and McGuinnes, B. F. trans., London: Routledge and Kegan Paul.Google Scholar
Wu, G. (2010). The Law of Evidence, Beijing: Tsinghua University Press.Google Scholar
Yue Lin, J. (2011). On Knowledge, Beijing: The Commercial Press.Google Scholar

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