Академический Документы
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Jerzy Wr6blewski
I. INTRODUCTORY OBSERVATIONS
tive research supports the view that there are two types
of normative regulation of the reasonings operative in the
decision of evidence. Firstly. there is the so-called free
evaluation of proofs in which the rules of evidence are
the rules of the extra-legal sciences and of knowledge
based on common experience. The rules in question are the
empirical rules of evidence ERE. Secondly. there are legal
rules of evidence LRE which determine what facts have to
be treated as proved if other facts occur. The LRE are
typical for the so-called formal theory of proofs. Contem-
porary statutory law regulation of proofs combines both
theories. but LRE are exceptions in the prevailing domain
of the ERE rules. The decision of evidence is. thus. jus-
tified by reference to ERE en LRE rules.
Further. the legal regulation is relevant because of
the way of determining the facts of the case. The theore-
tical analysis demonstrates(21) that there are two oppo-
site types of the determination in question: on the one
hand the facts are determined descriptively. positively
and simply (e.g. "a birth") and there are also. on the
other hand. facts determined eva1uative1y. negatively and
re1ationa11y (e.g. "faulty omission of a statutory duty").
For some determinations of a fact a reference to evalu-
ation is needed. and. hence. this should be expres~ed in a
justification of the decision of evidence.
The decision of evidence is based on the material of
evidence. The decision-maker. according to the rules of
evidence and his own conviction. accepts some of them and
rejects the others. Even within the theory of "free
eva1ution of proofs" which is aimed at determining the
material truth(22). the decision of evidence should be
internally consistent. i.e. it cannot contradict the
accepted evidence and rules evidence. The normal formula
of the decision of evidence is:
The facts of the case F exists in spatio-tempora1
dimensions SF according to the evidence E I •
E2 ••• En and the empirical rules of evidence ERE I •
ERE 2 ••• ERE and/ or legal rules of evidence LRE I ,
n c c c
LRE 2 ···LREn • and/or evaluations V l' V 2.··· V n.
Of 12'.1 •• 011
I' .01
2 l' 01 2 2,···01 2n an d eva 1uat i ons
V l' V 2,··V n
and the directives of the choice of consequences DC l'
DC 2 , ••• DC n and/or evaluations vc 1 , VC 2 , ••• vc n
taKing into account the must-sources MS 1 , M8 2 , ••• M8 3 ,
and/or the sould-sources 88 1 , 88 2 ••• 88n ana/or the
may-sources C8 1 , C8 2 , ••• C 8 3 and/ or evaluations VS 1 '
s s
V 2'···V n·
judicial decision"(27).
I will formulate my observations as hypotheses without
referring to empirical comparative material of legal norms
and decisions.
v. CONCLUDING REMARKS
FOOTNOTES