Bentham's ideas on contemporary interpretation of evidence law

[Abstract] the Law of evidence of Bentham's utilitarian philosophy of thinking based on the basis that the procedural purposes, including the purpose and attached directly to the purpose of, and that the judicial process should not only committed to a fair verdict, but also should minimize the arising due to procedural delay, annoyance and waste. In order to accurately identify the facts, Bentham believed that justice should be naturalized mode model to replace the technology, get rid of the form of rules of evidence adopted by the shackles of use, the judge also should ensure that evaluation of the objective force, in order to achieve judicial proof accompanying the purpose, with the utilitarian Jeremy Bentham advocated ways to avoid the negative value of judicial proof, evidence of the system to play a coordinating function from a contemporary point of view, Bentham's view of both the progressive there is an obvious lack of contemporary evidence of improvement of the system has important implications.

[Keywords] Jeremy Bentham, utilitarianism, judicial proof

Contemporary Intepretation on Benthenis Thoughts on Evidence

[English Abstract] Bentham's ideology on evidence Law is based on the utilitarianism philosophy. He argued thatthe pursuits of procedure Law consists direct ends and collateral ends, which bring us both the proper judgementand the avoidance of unnecessary delay, vexation, and expense. Therefore natural system should substitutetechnical system, and the formally requirements of evidence should be avoided. At the same time, the objec-tivity in evidence evaluation should be insured; In order to realize the collateral aim, Bentham alleged utilitari-anism method should be used to avoid negative effects and bring harmonizing function into play. All of abovepoints of view prompt a new path of the development of evidence Law, and reveal the way for constructing evi-dence Law in modern times.

[English keywords] Bentham, utilitarianism, judicial proof

First, Bentham thought the background of evidence law and theory

Jeremy Bentham (1748-1832, British philosopher, jurist, founder of modern utilitarian philosophy [1] Jeremy Bentham's extensive research, and his works quite good, in which "the Government on the chip>> and <<Introduction to Principles of Morals and Legislation>> China's high academic reputation, but Bentham on the proceedings, especially the idea of ​​judicial proof, yet did not cause the full attention of scholars in this field, Bentham research results are mainly reflected in the <<judicial evidence monographs>> and <<judicial evidence principle>> two books, the book is not only the characteristics of different types of evidence, and to use the rules to do a detailed analysis of the UK at the time evidence system was severely criticized, and built a magnificent, huge system of rules of judicial proof.

Bentham's writings in the advent of the era, is in common law countries, the chaotic period of the development of rules of evidence by the accumulation of case law, the British formed a large number of complex system of rules of evidence during the same period of the research evidence in the development of legal theory the early stages and some research results start to appear, which is the most influential publication of 1754 Gilbert <<law of evidence>> book. Gilbert in the book devoted to the case law, rules of evidence to sort out and systematized in Gilbert later scholars, such as Buller (Bull-er, Pique (Peak, Phillips (Phillipps), who basically followed the idea of ​​Gilbert's study, however, these proposals are basically from the "improved" point of view, the existing institutional framework, through the minutiae of certain rules of reform, to improve the evidence of purpose of the system.

Bentham's ideas for improving the system of evidence and other scholars of the same period has a significantly different point of view this is precisely the value of their research in his view, the evidence of improvement of the system can not be "improved" sweetness and light to achieve, He needs a "overthrow everything and start again" reform storm. {1} (P6)

Bentham reason put forward such a radical reform program, with its utilitarian philosophy advocated a direct relationship in the philosophy of Jeremy Bentham, the utilitarian is the objective reality that people tend to increase or decrease the tendency of well-being and interests, that promote or hinder this happy tendency. {2} (P58) or the behavior of individuals and the government's measures each country's legislation will have an increase or decrease the personal and social well-being of the parties to the effect of increasing social well-being as an act trend than the trend of reduction in social well-being, they meet the utilitarian principle. So, Bentham believed that "the greatest happiness of most people is the measure of right and wrong." [2]

This kind of happiness and suffering to be calculated, and results of the calculation to determine whether the legal system as a method to be reasonable evidence of Bentham's ideas of the philosophical basis of law. He believes that the operation of the judicial process has its own purpose, that purpose can be divided into direct purpose and the purpose of accompanying two-part, directly reflected by the decision of the purpose of the form, obligations and promote the realization of the right. The purpose of the judicial process comes reflected in the judicial process should be avoided by the action of the negative effects of these negative effects mainly refers to the time delay, to bring the parties to the hearing and the annoyance and waste of judicial resources, and so on. {3} (P10 look at Bentham , the evidence system as an integral part of the litigation system should be to maximize the protection of the purpose and included the direct realization of the purpose, but, in Bentham's writing, the British judicial system in the existence of a program complex, confusing rules , delays in the proceedings of the criticism. Bentham believed that the root cause for this situation is that the program's designers did not realize most people's best interests as a legislative goal, but the rulers with a very small number who favored the well-being , as their sole purpose to pursue. {5} (P58) in order to achieve the purpose of this evil, judges and lawyers of the interest groups they are interested in the process of judicial proof techniques, complex. intends to make a variety of exclusionary rule and the evidence required to use the full formal proof system in this way allows the judge to explore the fact restricted, the value of the evidence can not be fully utilized, the system only weak evidence of the direct purpose of promoting the realization of justice, can not be reduced the negative effects of the judicial process, and is therefore advocated by Bentham's utilitarianism requires far. Bentham believed that the only way to change the status quo is to abandon the existing system to a new system to replace the evidence of {3} (P196, P199)

Bentham's writings flashed everywhere inspired the author of light and wisdom, but its theoretical inadequacies of the study is also evident from Bentham's book, find that he has not studied the process of writing the number of precedents for evidence of the historical development of the system has not given due attention, so the lack of system is the historical basis of concern is the theoretical study of Bentham's a fatal flaw, he even radically that "we can only learn from history to the wisdom of ancestors rather than stupid ". {4} (P110) In addition, at the same time for other research results, Bentham was also not very in-depth study of the book is only a handful a few citations. For evidence of Gilbert's view of law master, Bentham made two more concentrated despite the evaluation, but the depth of analysis is clearly not satisfactory. In short, the author is almost the same time isolated in an isolated historical reality of a closed environment, complete build your own system. This makes the book some of the arguments clearly unrealistic or exaggerated. All this, as critics attack the target set for example, Wei Gemo (Wigmore, believes that Bentham was the evaluation of the British judicial system is too extreme, and from the legal development of the social and historical background, with a clear narrow-mindedness. {5} (P147 reflects the evaluation more objective evidence of Bentham's legal theory of the existence of "congenital" inadequate, also represents a number of other scholars on edge Qin's views of research results [3]

Even so, the value of Bentham's research still can not be denied, as scholars have said, the law of evidence for the theory of Bentham's contribution to the development of the key issues is that he does not give a satisfactory solution, but that he evidence of legal theory in the development of the first time with philosophy, logic, psychology and even the method of judicial proof issue, first inspired people to think about different perspectives on certain issues. {6} (P83) of his great expansion of the evidence the perspective of legal research, many scholars of later ages had a significant impact for example, Wei Gemo, believes that in addition to judicial proof and evidence, including the adoption of relevant rules, it also includes the associated reasoning and persuasion process that is each party trying to influence the will of those who tried to convince the process [4] From this understanding, we can easily find traces of Bentham's ideas.

Although the system of Bentham on the evidence studied under a wide range of complex systems, even for the elaboration of some of the issues people feel scattered and lack of logical thinking, but in the seemingly endless criticism of Bentham and runs through unconventional reconstruction with a clear main idea: namely, how to improve the accuracy of the results of judicial proof and minimize the negative effects of judicial proof. In order to achieve the accuracy of judicial proof, Bentham proposed the establishment of naturalized model of judicial proof, to get rid of the evidence requirements of the form use and adoption of the constraints, but also that the judge should ensure objective evaluation of evidence, in order to achieve the purpose of accompanying judicial proof, advocate the use of Bentham's utilitarian approach to avoid the negative value of judicial proof, evidence of the system to play a coordinating function. This article will focus on the writings of Jeremy Bentham's main ideas, try these aspects of Bentham's ideas to sort out, and contemporary interpretation of the meaning hidden in them.

Second, the accuracy of the means of realization - the naturalization of judicial proof mode selection

(I thought of Bentham evidence law "natural" mode of proof

The so-called pattern of judicial proof, proof is in the judicial process to explore the facts found and the mode according to Bentham's understanding of judicial proof as a kind of awareness activities, in essence, with the understanding of everyday life is no different. Bentham promote a "natural" proof of process, against the activities of the judicial from the legislative point of view that intervention.

Bentham's evidence in legal thought, evidence exists in the way of judicial naturalization naturalization proceedings in his proceedings, although that is a competitive form of start, but should always be to achieve a fair sentence for the program primary purpose. {7} (P283 -285 during the proceedings, the role of judges in family disputes as to deal with the father, he can be exempted from any form of normative influence, by all evidence he believes there to help probe the truth. {8} (P197, P241 naturalization proceedings in the evidence system dedicated to the discovery of truth, its main feature is the exclusion of evidence less and less restricted by the rules of evidence with the naturalization of judicial proof way corresponds to the technical aspects of judicial proof way the latter is characterized by the judge's conduct is subject to the provisions of the statute, that is subject to the legislator's intention and at the same time be constituted by the lawyers and other interest groups under the control of, the interests of these evil with the proceedings of the ultimate goal, and social interests are diametrically opposed. {9} (P7 Bentham in his work procedures and technical procedures on the natural difference from twenty three to do a detailed analysis and comparison, the following several aspects of the difference between the system for evidence of great significance:

First, in the naturalization process, unless cause delays, waste and annoyance, witnesses and the parties shall direct, to appear in person, but the technical program will try to avoid direct contact with the parties and the judge.

Second, the naturalization process, the written testimony is used strictly limited, is considered to be superior to oral evidence to evidence in the form of writing, but in the technical program, but widespread tendency to abuse of the written testimony.

Third, in the naturalization process, the case from start to finish by the same judge, the judges are responsible for the collection of evidence and the evidence to determine responsibility in the technical program, the collection of evidence, listen to the judges and judgments by different responsible to collect evidence, the judge is not entitled to the process of the court to hear evidence, and the judge is not entitled to hear evidence on the effect of the evidence to make judgments.

Fourth, in the naturalization program, subject to the judge accepted the evidence of the need to know the facts, but in the technical program, the use of evidence the judge will have to be subject to strict rules. {9} (P8-P14)

Bentham believed that the UK law of evidence with the typical technical characteristics of the most important sign is the evidence that the system constituted mainly by the exclusionary rule. Bentham believed that the ideal law of evidence should be "guidance" rather than "normative" or "mandatory", the focus should be on evidence system to ensure that evidence is true, reliable, and complete the form is presented, and the judge all the evidence to guide rational evaluation. Because of this, Bentham's thought was the law of evidence called "anti-rule doctrine", but not entirely exclude legislators Bentham facts of the case to the judge to interfere in the process, but he believes that the evidence in the naturalization system, the task of legislators instead of judges of the facts is not to judge, but to create conditions so that the judges have the opportunity to form a correct understanding of the facts, in order to ensure that the results of judicial objectivity, impartiality, lawmakers should complete the following two tasks:

First, he must make the right decisions to ensure that the necessary evidence to put forward, not be excluded. Bentham believed that the credibility of the evidence by the evidence of the correctness and completeness of two parts, the content validity refers to evidence real terms in line with the case. a loss of accuracy of the evidence will reduce the credibility of the whole system of evidence, to prove a direct impact on the objectivity of the results. the integrity of evidence refers to evidence as much as possible the content should include all of the facts have help information. exclusionary rule of evidence the existence of a direct threat to the integrity of evidence is not complete in its content will affect the judge's understanding of the evidence, the judge also will create opportunities for error. In short, Bentham believed that the judge make the right decision on the premise that he considered all the valuable information he thought. {3} (P215 were excluded from the trial will lead to a lack of evidence to make judgments based on. a wrong decision because both parties may provide false evidence, it may be exclude too many legislators evidence.

Second, the judge should help overcome the adverse effects of false evidence. Evidence legislation should prompt some judges may be defective and instructed the judges to determine the evidence of the specific method and system of legal evidence on the strength of the evidence in them mandatory requirement in different ways, Bentham believed that the law of evidence to the judge's standard guidelines should be based, rather than force-type. {3} (P213)

Bentham's concept of evidence that the system is clearly the same time the vast majority of scholars have significant differences. As mentioned earlier, the law of evidence theory in the early stage of development, almost all scholars will focus on case studies of organize and improve the rules, few thought the existence of other modes of judicial proof. Bentham's "natural" model opened a judicial proof of mystery, that broke the judicial highly technical, can only be mastered by a handful of elite myth, from the complicated to the simple evidence system.

(B "technology model" and the "natural model" of the opposition and integration

Patterns of judicial proof of evidence of different choices lead us to think a basic problem areas of law: in fact-finding process, to protect what is most conducive to understanding patterns of accuracy? Exploration of this issue through the development of legal theory at all the evidence process with the "natural model" as opposed to "technology model" of supporters that the law dealing with major issues in social life, so no doubt the correctness of the outcome of litigation is critical. It is only through standardization of data and operation of scientific computing process, will be to ensure the accuracy of knowledge in the operation standardization of data, the European medieval system of legal evidence is committed to the strength of the evidence of various sorts, in the given fixed the value, subtract. the traditional common law countries, also through a lot of evidence system on the exclusionary rule of evidence into the judicial process of standardization requirements in the certification process of the scientific, the technical requirements of the mode of trial by the fact that all knowledge must be in accordance with legal means, through the statutory procedure for obtaining, in addition to the program does not allow the formation of understanding. technical, judicial proof mode, trying to raise the threshold of evidence into the judicial process and the fact that the trial's standard method of thinking process to ensure the accuracy of understanding.

And the mode of judicial proof as opposed to "natural" mode of justice to prove that the process of knowledge reduced to the simplest understanding of the activities, so that full access to evidence in ruling on the basis of judgments and findings of fact in order to protect objectivity.

For the pros and cons of these two models, it is difficult to simply judge. However, with in-depth theoretical study and research perspectives of development, proof of naturalization of justice model seems to be more theoretical support. Psychological research shows that, for each strength of the evidence the judge can not be separated for all take into consideration the evidence, evidence of facts of the case is not the simple sum of individual, who must be allowed full access to the fact that the trial evidence, this is the correct understanding of the key to the point of view of judicial proof is called "holism." {10} ( P519) "holism" unequivocally analyze the evidence against the "atomistic" point of view the latter's supporters believe that the fact-finding process is like building a house, is a brick every evidence, the facts that were first one by one to determine the ability of each to evidence, then by all the evidence together, "piled" into facts of the case. {11} (P183, P185) to this theory, evidence-based design system will inevitably require the evidence to the facts that were before them to do prior filtering, it can be said of common law countries in constructing their system of rules of admissibility of evidence when the largely followed this line of thought, but based on "holistic" point of view was clearly a large-scale reduction of the exclusionary rule should be the conclusion.

"Holism" of the results as early as 100 years ago by Jeremy Bentham expressed in a similar way. Bentham that the evidence is "a relationship", this relationship is only evidence and other evidence in a link between in order to reflect, alone can not demonstrate a proof of their own value, to the exclusion of evidence is equivalent to the relationship between the fragmented evidence, there is no relationship, it does not exist a so-called facts of the case. {3} (P208 -209 contemporary trends in the law of evidence seems to confirm the view of Bentham. That Civil law countries in the litigation process to "free card" is characterized by the judges the right to use or evaluation of the evidence less to intervene. common law countries, because the reasons for the jury system, although originally the admissibility of evidence to make a number of formal requirements, but with the decline of the jury system, the adoption of evidence greatly ease the strict restrictions on the number of excluded evidence rule provides an exception, or by a general requirement to give the judges discretion.

However, legislative change does not mean "natural" model of justice that has won a decisive victory. Of "holism" as an example, scholars believe that the doctrine of the evidence so far does not prove that micro-analysis is neither possible nor necessary, it just emphasizes the analysis of individual evidence should be placed into a broader context , rather than evidence of its existence separated in the environment. {12} (P399) There are other scholars that different types of facts, people choose different ways of understanding, "holism" and " atomism, "to reflect the actual facts of the human cognitive process for different, or more accurately, people in understanding the process of understanding is always integrated use of various methods. {13} (P180-181) This kind of action that the understanding of the nature of the evidence has been reflected in legislation, as mentioned earlier, common law countries, rules for the exclusion of evidence is based on "atomic theory" on the basis of, but in the course of the trial's opening statements and summary submission stage, given a hearing by the parties to fully and completely demonstrate the story of each picture and story of the role of evidence in the opportunity.

From today's perspective, the "technology model" and the "natural model" did not accurately reflect the whole picture of judicial proof, but "natural patterns" and "technical model" is not polar opposites, there is no commonality at all. Both mode "to achieve a rational judicial proof" of this goal performance was highly consistent on that want to ensure that both modes prove the accuracy of the results, it is necessary to exclude as much as possible proof of the "main" factors , including the person's emotions, irrational factors such as intuition and foresight. "technical model" Needless to say, even Bentham support "natural model" is also true, Bentham, in his book <<judicial principle>> and clearly pointed out, the judicial process should be clear and specific, the judge explained the law of freedom is not the existence and use of space. {14} (P17 can be seen, Bentham for the irrational factors in the process of judicial proof is extremely hostile and irrational factors such as the realization of judicial objectivity that the biggest obstacle.

From today's perspective, the irrational elements of the judicial process that there is a clear lack of understanding of Contemporary psychological research results show that the process of judicial proof dominated by intuition and experience, and some scholars have specifically from a psychological point of view of findings of fact to re-build the model, such as under the "rule of the story model" theory, the facts that held liable to get it from the proceedings on the fact that the information (evidence for similar events in common sense and the general structure for the story knowledge, to build a narrative on the facts of the case structure may be heard by more than one story structure, but only one story is considered "best", decide whether a story was "convinced" standard is comprehensive and consistency of the story more fully, as the interpretation of the evidence more likely to be accepted, while the consistency of interpretation has to explain itself and shows the continuity of social cognition, according to the story model, who heard the second phase of the award understand and learn a variety of award options, for an act that should have the legal characterization of the conditions. Finally, the fact that the trial who used classification method to accept the story and match the definition of decision, decided to accept the story areas of decision elements and program elements of the best match. {15} (P233-262) "award story model" theory clearly tells us that in the process of judicial proof, human intuition and experience for the understanding of the formation to play off important role, and this non-rational knowledge is difficult to be bound by the rules or be excluded. It is based on the above findings, in common law countries, some clearly contrary to common sense psychology and human knowledge in general law rules of evidence, it has been increasingly questioned.

In short, Bentham's "natural model" Although the exclusionary rule to judge from the fetters, but he recognized the fact that the process is still not fully understood, especially in dealing with understanding the process of "rational" and "irrational." factor relations, Bentham's "natural model" of the factual findings of the process and the exclusion of irrational factors is a negative attitude, and therefore the system with the contemporary evidence in many of the emerging research form a clear contrast to these emerging research that the process of understanding the experience, intuition, emotion and other irrational factors are help to help understand the formation of a correct understanding of the subject. {16} (P257 based on the concept of building such a system is bound to the contemporary evidence is committed to the right the process of dealing with judicial proof the relationship between rational and irrational factors, so that both the harmonious development of common services found on the facts of the case. not absolutely exclude the role of irrational factors [5] However, in Jeremy Bentham's "natural mode ", the obvious lack of the above.

Third, the accuracy of the ways to realize - on the evidence in the form of requirements [6]

(I thought the law of evidence in Bentham's "anti-formal" ideal

Evidence on the form and admissibility of evidence of the relationship between the development of the system in the process of evidence there are two very different perspectives. A view that the evidence must be based on legal procedures, in accordance with the statutory form, the evidence in the form of determine whether the evidence was adopted. Another view is that the evidence collection procedures and forms of evidence and the evidence is no necessary link between the adoption of evidence can be presented in any form to the court, the judge simply because the evidence form does not comply with the law and rejected. Although the latter point of view in contemporary legislation in many countries to accept, but life in the era of Jeremy Bentham, that view is not recognized. This kind of evidence in the form and admissibility of evidence of understanding of the relationship between the evidence has seriously hampered the study of the perspectives and methods. Gilbert believes that the primary task of the judicial process is to "search the decisive documentary evidence." in his book, Gilbert dedicated to different forms of strength of the evidence for the size of the arrangement, he that different forms of evidence, documentary evidence is the best evidence, because the documentary evidence is "thinking of a serious, conscious activity record." {17} ( P1153 Gilbert's point of view of the same era and the subsequent impact on much of the evidence law scholars who study in different degrees from different angles to strengthen the "evidence must be based on the statutory form, or not to adopt" this idea.

In the forms of evidence and evidence of the effectiveness of relations, Bentham stood opposite to its contemporary position of many scholars who believe that the proceedings in the form of requirements for the majority of evidence is wrong, and not conducive to the direct action purpose and the purpose of accompanying for example, Bentham believed that the witness's testimony should not be eligible to make strict rules, minors can testify on the grounds that the child naturally pure than adults, are more likely to speak the truth In addition, the sworn testimony of witnesses is in no sense, oath of judges and lawyers group system is the product of evil interests of its existence has led to delays and unnecessary costs, there is the possibility of misleading the jury, the judge correctly for the promotion of facts is no help. {9} (P201, P207 Overall, the evidence in the form of Jeremy Bentham and evidence on the effectiveness of the relationship between the point of view can be summarized into the following three aspects:

First, the evidence does not affect the evidence in the form of adoption, the evidence in the form of credibility and evidence of no necessary link between. Bentham opposed to the different types of strength of the evidence to compare and draw a general class strength of the evidence than the other evidence the conclusion of practice. Bentham, the direct evidence and circumstantial evidence has some similar characteristics, such as the use of circumstantial evidence without judgments and reasoning, although direct evidence is more witness obtained by direct observation of results, but still can not avoid the witness to observe the process of reasoning and more or less used to determine the method without the use of indirect evidence of the subjective factor, which makes indirect inference based on seem unreliable, but the fact that the trial of those who rely solely on direct evidence of the fact that the formation of knowledge is also dangerous because of false direct evidence will directly lead to misunderstanding. On the contrary, the use of circumstantial evidence necessary to identify the risk of a small number of facts, even if indirect evidence of the emergence of false components, as long as those facts do not hear the error, it still helps to help judge the facts from the opposite perspective of {18} ( P3-4) As another example, with a different Gilbert, Bentham does not generally come to a "written evidence should be superior to oral evidence" or "oral evidence should be superior to the written evidence" conclusion. Bentham documentary evidence into the previously the establishment of documentary evidence (refer to the parties by signing the agreement), informal documentary evidence (refer to stationery, notes or diary excerpts and documentary-type inquiries (refers to other cases of hearing to obtain testimony of witnesses or in the Registry before by declare three kinds of which, the first documentary evidence, that is, the documentary evidence has previously established a high value of the evidence, oral evidence the parties can not be used to overthrow or replace it. The latter two documentary evidence of only low power, they should give witness in person to provide testimony in court. the parties or witnesses in court proceedings to provide evidence of a prior plan without evidence, through cross-examination, the judge or jury can easily determine the authenticity of the testimony. easy to see Bentham has a clear understanding of the rational, by some scholars believe that "found the written evidence and oral evidence dealing with the relationship between the right path". {19} (P180-181)

Second, Bentham admitted evidence in the form of the defect will affect the credibility of the evidence, but his attitude is not right that the evidence has been produced in the exclusionary rule to eliminate it later by, but actively take preventive measures beforehand evidence to prevent the generation of defects in this area Bentham first used the "pre-existing evidence" (Preappointed evidence of the term, refers to the parties to such evidence after the fact that the needs of the legal relationship or legal fact occurs, change or eliminate the process of production or preservation of evidence, such as birth or death records, evidence of a considerable portion of the relevant functional departments of the government produced, due to strict production process, so the evidence has been effectively guaranteed the authenticity of . Bentham that the State should be in the production of "pre-existing evidence" to play a greater role, not only help reduce the incidence of disputes, and help to improve the accuracy of the facts of the case to prove.

Third, have produced evidence of defective in form, should be based on "best use" principle, take advantage of the evidence to guide the judge in the process of studying this problem, Bentham creative use of "expedient evidence "(Make-shift evidence of the term. such evidence generally refers to those who lack one or reliability of the protection thus compares favorably with other evidence on the effectiveness of evidence of evidence is characterized by expediency, usually to ensure that evidence the loss of the authenticity of certain factors, but through cross-examination, submit evidence relevant to penalty of perjury, etc., and can recover some or all of the factors that have lost protection. {3} (P218-219) hearsay evidence that is a typical expedient evidence Bentham before the law of evidence are often unreliable hearsay evidence to direct petitioner has not been ruled out of the sworn advocate in this issue, Bentham's view of the significance of cross-age.

(Two contemporary evidence of the system of "anti-formalism" trend

Since the 19th century, evidence of the development trajectory of the system has been clearly confirmed Bentham's view. National evidence system in the form of demands for evidence are gradually reduced. Testimony of witnesses the gradual relaxation of eligibility requirements, written evidence to the tilt policy has been fundamentally correct, especially hearsay restrictions less and less, scholars believe that this change is closely related with Bentham's ideas. {20} (P932, first in the United States <<Federal Rules of Evidence >> 803, 804 focus on exceptions to the hearsay rule provides, with the exception of reasons, including overall appearance does not matter whether the petitioner and the petitioner does not appear in court two. [7] Then, in December 1997 a new increase in the Federal Legislative Council use of a hearsay exceptions, the provisions of the past, the new regulations generally adopt the hearsay evidence in certain circumstances to grant rights of judges. {21} (P849 UK <<Civil Evidence Act 1968>> started exclusionary rule against hearsay reform. This reform, although not completely abolished hearsay exclusionary rule, but made a lot of exceptions, the hearsay rule significantly limits the role of space. "Civil Evidence Act 1995,>> the implementation of the marks hearsay rule areas of Civil litigation in the United Kingdom has undergone fundamental changes.

Bentham's views, and the law of evidence of anti-formalist tendencies should cause us concern. I believe that the law of evidence of this change can not simply be positive or negative. Evidence in the form of legislation and relevant rules of evidence can be divided into three class. different rules of judicial proof is different in meaning, so we treat them the attitudes and policies should be differentiated:

The first rule is based on improving the credibility of the evidence considered, requests must be proof of a specific form of the fact that other forms of evidence against it. Such rules is that a purely legal norms, only that the proceedings play a role in the process, such as, <<French Civil Code>> Section 1341 provides that, where over decree to determine the amount or value of things, even the voluntary register should be made of the certificate before a notary public or signed by the two sides made of private certificate, while made of the certificate, the certificate of the content with different content or matters beyond the certificate shall not be certified as a witness, nor made of the certificate before or after the statement as a witness to prove the various matters, even if the amount involved or the value is less than the amount or value of the law, not to be witnesses to prove before provision shall not prejudice the commercial transactions law. {22} (P1026 Obviously, the law on certain legal acts of the content must be written the provisions of that form of legal action is not established or effective these elements, not to take legal writing does not make the law invalid. The rule limits the parties in the proceedings only to prove the existence of a fact that documentary evidence must be used when such evidence form is the significance of the existence of such rules, the party advocated a particular form of record with the legal relationship between the occurrence of change and the eradication, but such rules to some extent limit the freedom of parties to choose forms of evidence, so contemporary goods prevailing economic and social principles of freedom of contract there is a certain degree of tension, so the modern countries are reduced as much as possible the number of such rules or weakening of mandatory rules of the color itself {23} For example, according to Italian law, the parties To prove that the two sides after the signing of the contract entered into a supplemental agreement, in general, the parties must be written evidence of the contents of the supplemental agreement, but the judge in considering the nature of the contract and can adopt a variety of indirect evidence, oral evidence. {24} (P217, P219

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第二类规则是对不同形式的证据的证明力进行比较的规则.比如我国<<最高人民法院民事诉讼证据的若干规定>>(以下简称<<民事证据规定>>第69条、第77条即属于此类规则.总体而言,此类规则建立在日常生活经验的基础上,有一定的合理性,但是却易导致以有限概括无限、以过去判断现在的问题.比如<<民事证据规定>>中"直接证据的证明力一般大于间接证据"的规定,是否科学就存在很大的疑问.同时,此类规定严重侵蚀了法官自由判断和评价证据的权利,与现代自由心证原则的意旨相悖,因此该类规则在当今证据制度中存在的范围日益萎缩.大陆法系国家通常只规定公文书应当优先于私文书被采纳.而英美法系国家则规定应当优先采纳原始证据.我国的证据立法在对待此类规范时,也应当持谨慎态度,尽量不要对证据力的大小作出定性的规定,确有必要规定的,也应当允许法官基于个案的特殊情况,不受此类规则的制约.

第三类规则是基于程序的正当性考虑而对证据提出的形式性要求.比如,排除证人传闻证言的最主要理由是无法通过交叉询问确定其真实性,从而剥夺了对方当事人重要的程序性权利,因此,即使在当代社会,要求证人亲自出庭作证的规则也是有存在的必要与基础的.再比如,在刑事诉讼中,对侦查机关提供的证据提出的形式性要求也主要是基于程序正当性的考虑,此类规则在各国的司法制度均受到不同程度的认可.笔者认为,此类规则存在的主要意义并非实现司法证明的客观性,而在于保障司法证明结果的正当性,此乃程序公正原则的应有之意.因此,此类规则已经成为所有现代法治国家证据制度中不能缺少的内容,否则必将导致程序的虚化与空洞.

由此可见,边沁反对所有的证据形式性要求的观点是值得商榷的,他显然没有将证据法对证据的形式性要求与司法证明结果的正当性联系在一起,也没有从诉讼法自身价值的角度考虑"形式"对于司法证明的重要意义.这与边沁对诉讼法的作用与价值的认识有关.因为在边沁的法律思想中,实体法是"主法",程序法是"辅法",程序法的全部价值就在于实现实体法的内容.{14}(P5, P9)这一认识无疑直接影响了边沁对"形式性"证据规则的看法.笔者认为,证据制度中基于证明程序的正当性的要求设置的规则是有存在的价值与必要的,但是对于基于可靠性的考虑而制定的排除特定形式的证据的规则以及证明力大小的比较规则,则应谨慎对待,即使确有必要做出规定也应当充分考虑刚性过强的规则可能对司法证明造成的不利影响,允许法官在满足特定条件的情况下不受此类规则的约束.

四、精确性的实现途径—证明力评价的客观化

(一对证明力进行量化评价的可能性

边沁对证据的证明力的论述是其著作中占据篇幅较大,也是影响颇深的一个组成部分.边沁将我们熟知的证明力的概念用Probability与Plausibility两个词来表示.其中证据的"可能性"(Probabili-ty表示证据本身的真实性与客观性,而"说服力"(Plausibility一词表达证据对事实审理者产生的心理效果.边沁认为,事实本身是不具有说服力的,对于客观事实而言只有存在与不存在两种可能,存在与否没有程度上的差别.但是证据的说服力却有程度上的差异,说服力要表达的是证据证明待证事实存在或不存在的可能度.既然证据的说服力是有程度上的差别的,因此对证据的"说服力"进行量化的分析是有可能的.

边沁的上述认识为数学方法在证据法学领域的运用打下了伏笔.边沁本人也尝试将证据的说服力用0-10数字表示.0表示证据无法从肯定或否定的角度证明某一事实是否存在.10则表示证据使事实审理者产生确信的最高程度.在0与10之间,证据的说服力可以被进一步无限地加以区分.边沁进一步认为,每一个证据的可能性都应当与一个确定的数字对应,以证人证言为例,证人应当告知法庭自己对所陈述的事实形成的确信程度的具体数值,如果证人的品格以及观察记忆能力没有缺陷,那么证人提供的其对事实的确信程度的数值将直接转化为法官被说服的程度.同时,如果一个案件中不同的证人证言存在矛盾,则法官应当综合考虑所有证言的"确信度"后,决定支持哪一方的主张.{3}(P224,P227

(二对证明力进行量化评价的技术障碍

虽然边沁的研究为从数学角度对证据的证明力进行量化评价提供了可能,但是,对于数学在司法证明中究竟能够发挥多大作用,边沁的态度不甚明了.一方面,他采用了数学的方法表示证据证明力的大小,这一思路由于增加了司法证明的理性色彩,因而受到许多学者的推崇.但是另一方面,边沁并不赞成对证据的证明力进行加减的运算,也不赞成在司法证明的过程中使用概率的方法.这似乎又与他前述的观点矛盾.柯恩(Cohen教授就曾尖锐地指出边沁理论的这一重要缺陷.因为既然"说服力"具有程度上的区别,并且审理者被说服的程度还会随着新证据的提出增加或者减少.{3}(P224,P227这无疑就等于对证据进行了加减的运算,而这种运算在司法证明领域是没有存在的空间的.{25}(P55,P57

但是笔者认为,边沁在证据价值评估领域的贡献并不在于他帮助我们解决了某些棘手的问题,而在于他启发人们开始思考一个证据法领域的重要问题,即如何实现对证据价值判断的客观化.这是一个到目前为止尚无定论的问题.学者们提出的解决问题的方案无非三种:通过立法的方法解决、通过消除事实审理者主观差异的方法解决以及通过数学计算的方法解决.

第一种方案我们在欧洲中世纪的立法中可以找到其典型的表现形式.通过立法的方法对证据的价值作出抽象的规定固然有助于限制司法人员的恣意妄为,在一定程度上保证了判决的确定性和可预见性,但是却牺牲了裁判的灵活性和司法的能动性,因此已逐步退出历史舞台.

第二种方案为边沁所提倡,边沁承认同一个证据在不同事实审理者的心理上可能产生的说服程度是有差异的,同时认为偏见、迷信和疏忽是产生这种差异的原因,因此,只要消除这些因素就可以统一人们的认识.{3}(P240, P260)但是这一方案实施起来的难度是可以想象的,而且仅凭借这一方案也很难达到理想的效果.所以边沁的这一构想虽然是合理的,但是却很难有效地解决问题.

最后一种方法,即数学方法,是到目前为止争议最大的方案.在司法证明领域使用数学方法的思想被学者们称为"帕斯卡尔主义",它的产生最早可以追溯到法国学者Blaise Pascal的研究成果中.[8]在此之后,将数学方法用于司法推理的研究从没有停止过,特别是在英美法系国家,此研究领域已经取得了令人瞩目的丰硕成果.[9]然而对这种研究方法的非议也自始存在着.边沁曾在其著作中使用赌博与保险的例子来说明司法证明与数学计算的相似之处,这一比喻引发了学者们的深入思考,许多人认为边沁的这一比喻是不恰当的.学者Dumont一针见血地指出了司法证明与概率计算之间的差异:"对赌博进行概率计算时,人们关注的是未来某个事件发生的规律,而司法证明关注的是过去曾经发生了什么."{3}(P234, P235另一位学者Postema更进一步认为,是否关注过去并不是司法证明与赌博的区别,二者最本质的区别在于,赌博必将产生一个确定的结果,这使得对赌博结果的概率计算具有可验证性.而对案件事实的概率计算却是无法验证的.{26}(P30, P31)

对于在司法证明领域是否可以使用以及如何使用数学方法在我国的理论界尚未引起足够的关注.但是立法却走在了理论研究之前.我国<<民事证据规定>>第77条对司法实践中常见的证据的证明力进行了价值大小的比较,显然有对证据的证明力进行定量分析的色彩,这一规定在实践界与理论界引发了不小的争议.对于这一问题,笔者认为,数学方法的运用使得审理者对证据进行定量分析成为可能,也使对证据价值大小的表达更加清晰明确,因此如果使用恰当,有助于实现司法证明的确定性.然而,社会科学与自然科学的差异决定了数学方法不可能在司法证明的所有领域都发挥积极的作用.现有研究证明对于那些属于纯粹的统计学领域的问题,或者在证明损害赔偿的数额方面以及在帮助审理者理解科学证据的证明力方面,数学特别是概率的方法是有帮助的.[10]但是,数学方法不是在任何情况下都是有益的,比如,已有的研究结果表明利用贝叶斯定律计算事实的可能性忽视了审理者的观察在形成认识的过程中的作用,同时也没有在双方当事人之间正确地分配说服责任.{27}(P604)同时,在证明行为或人的动机、主观因素时数学的作用也会受到限制.因为每个人的行为或主观因素都是由其意志自由决定的,而决定个体意志的因素是千差万别的,这无疑给概率计算设置了几乎无法逾越的障碍.

将数学应用于事实认识的局限性还不止于此.特别是采用概率计算的方法确定证据的价值或某一事实存在或不存在的几率,有时甚至是危险的.一方面对案件或证据进行概率分析总是建立在过去经验的基础上,而经验仅仅是对过去事件发生规律的总结,将以往的经验适用于当前的案件中,总是存在错误的可能.另一方面还存在着如何对案件事实的所有决定性因素加以数学运算的问题.有学者曾用以下例子说明这种计算的难度:假设某剧院有1000名观众在观看演出,现剧场管理者发现有501名观众没有买票就进入了剧院.假设管理者对剧院中的某一名观众提起了诉讼.根据概率计算,这位观众没有买票的可能性为50. 1%,超出了他买票的可能性49. 9%,因此在此种情况下,法院应当判决原告胜诉.但是,这显然是不公平的,法院的判决意味着管理人可以依据概率起诉每一名观众并获得赔偿.{28}(P80, P91)产生这样错误的原因在于,剧场中每一位观众的实际情况是有差异的.社会地位、经济状况、受教育程度以及道德水准方面的差异使得每个人逃票的可能性都是不同的.从数学角度看,决定某个特定的人是否逃票的变量是无穷无尽的,法官不可能掌握全部的变量,任何一个变量的缺失或不准确都将直接导致最终计算结果的错误.因此,可以毫不夸张地说,忽视这些变量的数学计算,在事实证明的过程中是没有任何意义的.

总之,笔者认为在证明力的问题上,数学无用论以及数学万能论的观点都是错误的.欲想将数学方法科学地运用于事实认定的过程中,我们必须首先明确该方法在司法证明过程中的应用范围,同时还应清醒认识其负面效应.对于这些问题,还需要进行更深入的理论探讨.

五、司法证明的精确性与其它价值的协调

虽然边沁将提高司法证明的精确性作为证据制度追求的直接、首要目的.但是这并不意味着边沁忽略了事实认定的精确性与其他诉讼价值之间关系的协调.这也正是边沁证据法思想最具价值的部分.边沁认为,任何证据的采纳都会导致一定程度的拖延、烦扰以及费用的增加.因此,立法应致力于尽可能减少因采纳证据给司法程序带来的负面效应,也即实现司法程序的随附目的.当采纳某一证据所产生的利益小于该证据给诉讼程序造成的负面影响时,应当允许法官排除该证据.边沁在其著作中详尽论述了在何种情况下,允许法官以拖延、烦扰以及费用增加为由排除证据.比如,边沁认为,以费用为由排除证据的情况有两种:

第一,费用不是由提出证据的当事人承担而是由其他人或第三人承担,显然,边沁认为,由其他人为当事人收集证据支付费用是没有道理的.

第二,费用虽由提出证据的当事人承担,但是该费用过高,会不恰当地增加证据提供者的负担.当然,只要当事人认为自己需要这一证据并自愿负担费用,则以上排除规则不发生作用.在边沁的时代,英国普通法在决定应当由谁负担证据提出的费用方面,判例很混乱并前后矛盾.功利主义法学理论再次为边沁提供了解决问题的思路,即当采纳证据所带来的费用负担远远超过该证据所产生的利益时,当事人有权利拒绝支付.此外,边沁还对如何减少采纳证据带来的费用的增加提出了自己的构想,比如,设立方便的法庭,采用对席不间断审理原则,如果双方当事人距离遥远,则允许通过书面方式进行证据调查等等.{18}(P224,P227

为了减少司法证明给诉讼制度带来的负面效应,边沁还提出了建立双方在正式开庭前在法官面前的预先调查制度的构想.在预先调查程序中,每方当事人应当提交证据的清单:包括证人的姓名、证言的内容、书证、物证以及提交这些证据的目的,法官根据当事人提供的上述资料对证据进行筛选,排除那些可能导致拖延和浪费的证据.边沁认为,英国当时的司法制度中由于缺乏这种预先的调查制度,所以必然产生由于时间紧迫而导致的混乱,许多本不可缺少的证据被排除了,而另外一些通过预先调查将被认为多余的证据却被采纳了.但是,如果引入预先调查制度,则多余的证据将被排除,必要的、有利于实现司法最终目的的证据则会被采纳.

边沁在如何协调司法证明的直接目的与随附目的方面提出了许多具体的制度构想.尽管这些构想中的许多方面并没有在当代立法中得到明确体现,但是边沁提出的应注意协调司法证明的直接目的与随附目的的关系的理念却受到了普遍的认可.当代证据法的发展也明确体现了边沁的观点.在立法方面,各国证据立法中协调性规则的数量不断增加.比如,<<美国联邦证据规则>>第403条规定:"虽然证据具有关联性,但是若其证明价值实际上被下列因素超过,即导致不公正、偏见、混淆争议或误导陪审团的危险、或者考虑到不适当拖延、浪费时间或不必要的出示重复证据,则仍然可以排除该证据".{21}(P598

显然,立法者要求法官在采纳某一证据时,综合考虑该证据的采纳可能对其他诉讼价值或社会价值产生的负面影响,当采纳该证据给诉讼公正带来的收益小于该证据给其他价值造成的损害时,就应当排除该证据.这正是边沁所主张的功利主义法学思想的集中体现.

然而,遗憾的是,边沁并没有将他对证据法功能的这种先进的认识贯穿于研究的始终.比如,边沁激进地反对几乎所有的证人免证特权(只有神职人员以及国家秘密特权除外,特别反对律师与代理人之间的免证特权,理由是此类特权的存在妨害了司法公正的实现,因此对社会整体利益的保护是不利的.{18} (P472, P476)显然在证人免证特权的问题上,边沁忽略了该制度更重要的社会价值,即以牺牲个案当事人的利益为合理代价来保护某些更为重要的社会关系的健康发展.同样,在对待传闻证据的态度上,边沁狭隘地认为,几乎所有的传闻证据都是可以采纳的,因为它们都或多或少地有助于法官认定案件事实,但同时却忽视了由于无法通过交叉询问的方式进行质证而产生的程序上的不公正.因此可以说,边沁虽然找到了司法证明的另一种思路,并且意识到了证据法的功能应当是多重的,然而他仍然没有将司法证明置于更广阔的价值空间中,使其不仅仅服务于诉讼制度,同时服务于社会的整体利益.

边沁对于证据法的协调功能的认识对于我国证据制度的完善同样具有重要的启示作用.我国证据制度的发展正处于起步阶段,应当按照何种思路完善我国的证据制度,特别是应当如何处理司法证明过程中的各种诉讼内外的价值之间的关系,是当前必须认真思考的问题.对此,我们认为,证据法应当将实现精确的事实认识作为其首要目标与发展的直接动力.但是同时不能忽视的是,司法证明不是在真空或孤立的环境中进行的价值无涉的认识活动,在这一过程中,认识主体的价值观、社会价值观必然与司法证明所追寻的价值目标发生互动作用,并产生交互影响.因此,司法证明在追求证明结果的客观性的同时,应当关注证明结果、证明过程与诉讼内、外其他价值的协调.使诉讼证明不仅仅作为一种司法活动而存在,更是人们社会生活的一个组成部分,与其他社会活动一样,有着共同的价值取向.为了实现证据法的这一功能,我们应做以下几个方面的努力:

其一,在证据制度增加原则性规定.与其他规范相比,原则性规定虽然没有直接明示法官使用、认定证据应当遵循的规则,但是,它们却指导法官作出决定.比如<<美国联邦证据规则>>第102条指引法官:"解释本证据规则应注意到确保执法的公正,消除不合理的费用与拖延,促进证据法的成长与发展,以实现确定事实真相,公正处理诉讼."{21}(P566)

有时原则中包含了法官作出决定时应当考虑的因素,比如,在英国的民事诉讼中,在决定非法取得的证据的可采性时,由法官根据实际情况,综合考虑证据的性质、使用该证据的目的、取得该证据的方式、采纳该证据是否会对被取证方造成不公正以及该证据的采纳是否会对法院查明事实作出公正的判决有所帮助等方面的因素作出裁决.[11]证据法中的原则性规定的价值体现在两个方面:一方面,在法律没有明确规定或规定含糊不清时,它给法官的判断提供了依据,另一方面,该原则性规定的存在使证据规则成为一个开放的体系,可以随着实践的发展不断充实、完善.{29}(P413)

其二,增加证据排除规则的例外.英美法系国家的证据制度原本是以排除规则为主的,然而实践的发展表明,司法证明中的事实都是个别、具体的,排除规则笼统地排除某一种类型的证据极易导致个案审理的不公正,同时也不利于法官基于诉讼效率、社会正义等因素的考虑、灵活地处理司法证明过程中的问题.因此针对排除规则的例外性规定不断增加.而在我国,<<民事证据规定>>颁布以后,我国初步形成了证据规则体系.这些规则主要由排除规则与证明力大小的比较规则组成.然而<<民事证据规定>>中针对排除规则的例外性规定却少之又少.比如,<<民事证据规定>>第69条规定,不能与原物原件核对的复印件、复制品列为不能单独作为认定案件事实的依据.该规定就没有考虑到在文书原件非因负有举证责任的当事人的过失遗失或灭失时,或原件掌握在对方当事人,或其他第三人手中而对方当事人或该第三人拒不提供时,或原件属于官方文件或历史档案,举证人无法取得时,以及在文书复印件的真实性已经过法院先前判决或公证机关的公证文书确认的情况下,允许当事人使用派生证据证明案件事实的必要性与合理性.再比如,<<民事证据规定>>第69条明确规定,与一方当事人或者其代理人有利害关系的证人出具的证言不能单独作为认定案件事实的依据.实践中曾有这样一个案例,甲向乙借款两万元,有借据为证.借款期满,甲与其父一同前往乙处,甲要求看一下借据,乙出示了借条,甲趁乙不备将借条烧毁,并声称钱已还完.甲乙遂就是否还款发生争议,乙诉至法院.此时甲父动了恻隐之心,于是出庭作证,证明其子在未还钱的情况下烧毁了借条.此案按照最高法院的规定,甲父的证言是不具有可采性的,但是,任何一个有正常理智的人都会认为从日常生活的经验来看甲父的证言其实是很可信的.在缺乏例外性规定的证据制度中,由于排除规则的严苛性,将不可避免地产生司法僵化以及判决明显违背日常生活经验的现象.为避免这一问题,就应当考虑通过增设例外规定的方法,协调司法证明的确定性与灵活性之间的关系.

其三,关注证据规则中一些基于政策的考量而设置的规则.任何一种诉讼制度都不是孤立存在的,它的形成必然考虑到与其他法律制度以及社会政策的协调.比如,美国<<联邦证据规则>>第407条规定:"凡是因某事而引发所称的伤害或损害,行为人采取了那些若事先采取本来能减少该伤害或损害发生的可能性的措施,则关于这些事后措施的证据,对于证明过失、犯罪行为、产品缺陷、产品涉及缺陷、或者关于警示或命令的需要而言,无可采性."{21}(P612-617该规定的政策性导向就非常明显.再比如,关于证人免证特权的规定并存于两大法系国家的诉讼制度中,之所以有这样的巧合,是因为在任何社会中,保证某些基本社会关系的健康发展都是必需的,只有这样,才有利于实现各种社会关系的和谐发展,有利于实现司法的人性化.相反,我国的证据制度中却明显缺失基于政策性考量而设置的规则,因此才会基于发现事实真相的目的,要求当事人的亲属"大义灭亲",才会发生南京彭宇的案件中,法官以当事人事后采取补救措施的证据证明该当事人实施了侵权行为.[12]

综上所述,在两个世纪以前,边沁为我们绘制了一幅证据制度的理想蓝图.在这幅图画中,边沁通过构建一个"自然化"的司法证明模式,使法官得以摆脱形式性规则的束缚.蓝图的绘制者显然认为,司法证明结果的客观性的保证并非来源于程序本身,而是源于程序之外的对于事实认定者主观偏见与利益的排除,同时也源于程序之外对证据真实性的保障制度.在程序之中,所有的证据对事实的认定都有价值,因此也都有平等的机会接受审理者的裁断.同时也许更为重要的是,边沁看到了证据法功能的多重性,发现事实并非证据制度的唯一目的,司法证明结果的正当性必须被置于一个更广泛的价值空间,接受更多标准的检验.两个世纪以后,我们发现边沁图画中的部分内容已经成为立法的现实.边沁也因此被载入证据法学理论发展的史册中.但是笔者认为,边沁对于证据法学理论的主要贡献并不在于其研究成果中的具体内容,也不在于他的思想在多大程度上被实践验证,而在于他通过自己的研究提示给我们的证据法学研究的新思路.这也许正是边沁留给我们最为宝贵的精神财富.同时,我们必须清醒地意识到,在证据制度发展、完善的过程中,我们需要的不仅是边沁的勇于批判的勇气,同时更需要一种冷静思考,审慎决策的态度.





Notes:
[1]关于边沁的生平参见[英]边沁:<<政府片论>>,沈叔平等译,商务印书馆1995年版,编者导言.

[2]参见[英]边沁:<<政府片论>>,沈叔平等译,商务印书馆1995年版,序言.

[3]对于边沁的其他批判参见:Jeremy Bentham, Critical Assessents, Bhikhu Parekh(ed.,Routledg, 1993.

[4]See John Henry Wigmore, The Principles of Judicial Proof, William S. Hein＆Co.,Inc.,2000, Introduction.

[5]关于当代证据法发展的决定因素,参见纪格非:<<论证据法功能的当代转型>>,<<中国法学>>2008年第2期.

[6]本文中"对证据的形式性要求"应做广义理解,包括对证据的收集、提供的程序方面的要求以及对提交给证法院的证据的外在形式的要求(即证据的法定形式两个方面.

[7]参见何家弘、张卫平:<<外国证据法选译>>(下卷,人民法院出版社2000年版,第767页以下.

[8]帕斯卡尔和费玛是概率论的创始人.17世纪的数学家们从计算赌博的机遇中开始奠定概率论的基础.帕斯卡尔的友人兼赌客默雷提出了如下的问题:赌博进行到任何一个阶段中断时,其胜负机遇应当如何计算,这个问题在当时的学者中引起轰动,帕斯卡尔就这样被引入概率论研究的历史过程中.

[9]赞成将数学方法应用于司法领域的观点参见Michael 0. Finkelstein and Willian B. Fairley, A Bayesian Approach to Identification Evi-dence, Harvard Law Review83(1970,pp. 489-517; Rita J. Simon and L. Mahan, Quantifying Burdens of Proof: A view from theBench,the Jury, and the Classroom, Law and Society Review5 (1971),pp. 319-330.

[10]关于数学在司法领域的运用,参见[美]肯尼斯·R·福斯特、彼得·W·休伯:<<对科学证据的认定>>,王增森译,法律出版社2001年版.

[11]该原则体现在1963年的Duke of Argyll v. Duchess of Argyll案中,审理该案的法官认为:"这里没有绝对的规则,应当根据每个案件的特定情况决定是否采纳某一用非法手段取得的证据,这些应当考虑的具体情况包括:相关证据的性质、使用该证据的目的、取得该证据的方式、采纳该证据是否会对被取证方造成不公正以及该证据的采纳是否会对法院查明事实作出公正的判决有所帮助."
[12]2007年11月,南京市民彭宇在公交车站救助一位摔倒的老太太并将其送往医院救治.事后,伤者及家属指认彭宇为加害人,并将其诉至法院.一审法官以"如果被告是做好事,根据社会情理,在老太太的家人到达后,其完全可以说明事实经过并让老太太的家人将她送到医院,然后自行离开.但彭宇未作此等选择,他的行为显然与情理相悖"为主要理由判决彭宇承担民事责任.

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