近代中国法律界对自由心证的认识

The Understanding of Inner Conviction Among Modern Chinese Legal Scholars

自由心证是清末移植的法学新名词,近代中国法律界对其概念、制度前提及其与法定证据相较的利弊进行了深入的探讨,为其作为制度进行移植和实践提供了学理支持。在缺失自由心证传统的近代中国,这种知识体系的移植和嫁接难免存在着制度与理念的隔膜,因此,其时法律界对其概念的认知颇为模糊,也未能获得一致意见,不过,对其制度前提及利弊却有共同的认知。新中国成立后,自由心证制度出现了转折与嬗变,这种裂隙,需要我们对历史累积的认知进行认真的反省。

“Inner conviction”is a new legal term that was introduced into China in the end of the Qing dynasty.The legal scholars of modern China had carried on thorough discussions on its concept,its institutional premise,as well as its advantages and disadvantages compared with legal evidence,which has provided theoretical support for its transplantation and practice as a system.However,modern China lacked the tradition to adopt inner conviction,so there was an inevitable gap between the system and the idea in the transference and grafting of inner conviction.Thus,at that time,legal scholars only had an indistinct understanding and achieved no consensus on the concept of inner conviction,but they had the same understanding for its system premise,as well as its advantages and disadvantages.After the founding of the PRC,there has been a transition and transmutation of inner conviction system,which has created a fracture that requires a seriously reflection on the understanding of the system accumulated through a long history.