CAJ | 학술논문

中国的司法实践对证据的证明力表现出异乎寻常的关注，呼唤证明力规则、创造证明力规则并实践证明力规则。然而，当下的证据法学界对证明力规则往往持一种简单化的批判态度，其对于证明力规则的理性总结与学理思考相较于司法实务界倾注的努力不相适应。在以证明力为导向的证据法中，证明力规则的产生是一种必然。在证明力规则问题上，中国证据法学者在理论层面缺乏主体意识，但法律条文以及司法实践却显示了相当程度的主体性并保持了韧性。
중국적사법실천대증거적증명력표현출이호심상적관주，호환증명력규칙、창조증명력규칙병실천증명력규칙。연이，당하적증거법학계대증명력규칙왕왕지일충간단화적비판태도，기대우증명력규칙적이성총결여학리사고상교우사법실무계경주적노력불상괄응。재이증명력위도향적증거법중，증명력규칙적산생시일충필연。재증명력규칙문제상，중국증거법학자재이론층면결핍주체의식，단법률조문이급사법실천각현시료상당정도적주체성병보지료인성。
Unlike the modern evidence law taking competency of evidence as its core, the traditional Chinese evidence study does not focus on the competency of evidence. Rather, it puts emphasis on weight of evidence. In legal practice, judges call for and create the rules of weight, and put them into practice. Thus forms the image of the rules of weight in China. Judges hope to construct detailed rules of weight to solve the problems of proof and improve the accuracy and efficiency of judgment. The judicial authorities have a common view on the rules of weight and have enacted many new types of rules to alter the main format of the rules of weight. Particularly, there are also hidden rules, such as the rule of negative weight, the rule of degrading weight, the rule of corroborative weight, the rule of prior weight and the rule of presumptive weight, etc. Why do rules of weight remain vigorous in spite of strong criticism from scholars？ The main reasons are as follows. The individual fact-finders long for rules to be relied on to avoid risks and get rid of improper interference. The courts take efforts to restrict trial discretion in fact finding and make it objective. And the traditional litigation culture which emphasizes weight of evidence shapes the rules of weight, which can be widely accepted by the parties. At the same time, the trial model centralized on the files and notes also yields the rules of weight. In brief, rule of weight is a necessary product of the current evidence law. Based on that, we should have a wide view and forward-looking perspective on this issue, rather than unprincipled compromise or criticism. We should take the strategy of pragmatism to find a way out. On the issue of weight of evidence, the academics lack subjective conscientiousness, while the legislation has embodied certain amount of subjectivity, especially in the field of legal practice. The emphasis on subjectivity is not equal to acceptance of the legal practice. The subjectivity in practice reminds us that we should not ignore the rules of weight as they are hard to control like undercurrent. By contrast, they are the power to decide the model of Chinese evidence law. Only through the insight on practice and control over undercurrent, can we truly understand the movement of Chinese evidence law.