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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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