Institutional analysis of the free heart evidence system

China has traditionally adopted a factual system of evidence, the introduction of the principle of free heart evidence, in the theoretical community, triggered a huge controversy, for example, some scholars believe that: "free heart evidence for the judge subjective trespassing opened the door of convenience." There are also those who think: "Free mind evidence is based on the Kantian school of agnosticism as its philosophical foundation. If we conduct criminal proceedings to make a judgment that is satisfied with mere capitulation, what will be the result? There are only two possibilities: or indulgence in crime, or wrongly accused of innocence, which is obviously the opposite of the objective truth that we pursue in criminal proceedings, contrary to the way." The author believes that the judge should be realistic, this is not the slightest error, but the question is, whether the truth can be established as a system of evidence, it is quite debatable. The original meaning of seeking truth from objective things in the search for law, belongs to the philosophical category of a concept, from the "truth", "seeking" to "be", that is, the truth. "Yes" is the goal of "seeking", rather than the inevitable result, because the so-called "seeking", that is, a process of thinking and judgment, for people this process is full of personalized, different people In the face of different "real things", can we all "seek" the same "yes"? The answer should be negative, so the truth is only the pursuit of objective truth people have a subjective attitude, as the evidence system is too idealized. After the case is impossible to real reproduction, people are unable to reverse the flow of time and space to find the true sense of the objective truth, evidence is the people can get with the facts of the case has occurred the closest connection between the things, "with the fact that the fragments of the reconstruction of the facts of the case and the objective facts of the existence of a greater or lesser degree of difference between the facts is always inevitable". The judge's determination of the facts is objectively limited in many ways, no matter how proficient the judge's professional knowledge, how excellent his moral character, how rich his practical experience, and how brilliant his logical reasoning, he cannot be required to "faithfully reflect the objective truth", and can only be required to determine the facts based on the judge's conviction. The judge can only be required to make a determination of fact based on judicial conviction. "the so-called magistrate's conviction, is the magistrate in accordance with the cognitive information, the role of the exclusion of doubt, that the existence of the fact of its determination of a high degree of probability, in the common law system to exclude reasonable doubt as its basis". It can be seen that the standard of adjudication, which is satisfied with a high degree of probability and the rule beyond reasonable doubt, demonstrates human self-knowledge, and the requirements for the exercise of the judge's discretion should be based on this human knowledge of the real world. As to whether free evidence necessarily means that the judge subjective trespass, the author believes that at least from the legal practice of western countries have not proved the necessary connection between the two, free evidence is linked to a whole set of internal and external constraints, should not be the judge for the proof of the evidence of the judgment, understood as not subject to any rules of absolute freedom, the judge by conscience and reason exercise of discretion, is still based on the objective evidence, the free mind system in any country has not shown that it is a system that allows judges to rule on cases as they see fit. Free conscience emphasizes that the judge, under the condition of the objective existence of evidence, according to the rules of thumb and the laws of logic, the formation of no logical contradiction of sincere "inner conviction" and the next as a decision, anti-logic and anti-experience common sense of the inner conviction will be subject to strict legal constraints rules of denial. Therefore, the free evidence system in the "free" only indicates that the formation of inner conviction itself is free, and the basis of the formation of inner conviction is not free. The author believes that the fate and future of the free evidence system in China depends on whether we can establish a set of scientific, suitable for China's national conditions of the rules of evidence, and should not be in whether to give the judge on the case of free evidence on the power to argue.