The "Five Auditory" system has a long history in China. Judicial personnel observe the psychological activities of the parties involved through their words, facial expressions, breathing, hearing, and vision to determine whether the statements are true, thus making correct judgments on cases. Using the "Five Auditory" standards to examine the totem of Western legal culture - the Goddess of Justice, with her eyes covered by a cloth, lacking the sensory information of "color listening" and "vision listening", how can we ensure that the sword of justice in her hands will not "go astray"? The Chinese, who follow the principle of "seeing is believing, hearing may be deceiving," find it hard to understand the symbolism of a judge covering their eyes.
However, there will always be times when the parties involved "have reason but cannot express it" and when judges "cannot ascertain the facts." Sometimes, the "objective facts" are as illusory as mirages. Under the principle that "judges cannot refuse to adjudicate," we cannot use the excuse of ancient Athenian judges saying "this court does not understand this case, let's review it in a hundred years" to evade responsibility, nor can we rely on the horn of Xiezhi (mythical creature) to discern right from wrong. What should we do? At this moment, we hope to cover our eyes, no longer entangled in the complicated facts of the case, entrusting our judgment to our ears and leaving the outcome of the case to the rules.
The introduction of evidence rules has simplified many complex issues, and the reform of party-based trials has made it easier for judges to make decisions. We can apply the rules of evidence to make the legal reasoning of the verdict flawless and well-supported. However, an undeniable fact is that such a verdict may not necessarily convince the parties involved. A judgment without legal loopholes, in a sense, widens the "gap" between us and the public.
Because our explanation of "reason" is about explaining the "logic" of the rules rather than the "truth" of the case, our verdict highlights "procedural value" rather than "substantive value." For the parties involved, procedural value is vague, and evidence rules are abstract; they only have one simple yet persistent pursuit - substantive fairness.
As a system, evidence rules cannot be perfect. While reflecting on the defects of evidence rules, we must also see that the real reason is that some judges regard evidence rules as a "safe harbor" to avoid professional risks, failing to systematically apply relevant provisions, viewing them merely as a trial skill.
Court proceedings are not a "arena" for lawyers, and evidence rules are not a "safe harbor" for judges. We should try to avoid mechanically applying evidence rules to rule against parties with the burden of proof when the case facts have not been clarified; while adhering to the reform of party-based trials, we should actively fulfill our duties of investigating and collecting evidence according to our authority; for parties who cannot provide evidence due to objective reasons, we should allow necessary supplements upon application...
Only by leaving the "safe harbor" can we get closer to the people and closer to the truth of the case.
Source: http://www.lawyer126.com/suibi/474.htm
Shanghai Lawyer Hu Kaiyun