Formal theory of evidence

If the formal force of evidence is recognized in the legal system, then the function of the court in a case is to establish that the facts of the subject of evidence have been confirmed by evidence established by law.

The assessment of the evidence of each available evidence is not made by the court, since it is defined in law and cannot be changed in court. As a result of this, part of the facts has a predetermined positive force (that is, they are considered unconditional evidence in favor of the prosecution), part - a set of negative force (that is, they are considered unconditional evidence in favor of the defense, such as the defendant's alibi ).

The formal theory of evidence is opposed to the principle of a free assessment of evidence by the court, according to which any evidence available for the case and legally permissible under the law can be used as judicial evidence, and the assessment of each judicial evidence is made by the judge based on his own internal conviction and depending on the circumstances of the particular business.

The formal strength of evidence was recognized in the laws of some European countries until the 19th century . She served as the basis of the so-called. inquisition (search) process . Currently, most countries have switched to a free trial of evidence. However, in reality, in most civil disputes, as a rule, a predetermined set of facts is subject to proof, which is proved in a limited, and often the only way. Also, the formal procedure of proof in individual cases can be directly established by law.

Russia

In Russia, the formal force of evidence was finally consolidated during the time of the judicial reforms of Peter I and was abolished under Alexander II in the Charter of Criminal Procedure of November 20, 1864 . It is also not recognized by modern Russian law.

The acceptability of the formal theory of evidence has in the past been the subject of quite a long discussion of jurists. Proponents of a formal attitude to evidence argued that only clearly defined by law criteria for the evidence of each fact and a set of facts proving a crime can exclude the possibility of a biased attitude of judges to the case. In their opinion, allowing a judge to evaluate evidence turns the court from a process based on law into an act of adjudicating an individual, as the judge is entitled to accept and reject any evidence and, thus, can make a decision based on his own opinion, and not the law.

The main arguments against recognizing the formal strength of evidence are as follows:

1. The significance of a certain fact can be very different for decisions on specific cases. The law, establishing a fixed significance of evidence, in some circumstances will still turn out to be inconsistent with reality.
2. The established formal force of certain facts compels a judge to pronounce a sentence on the basis of evidence established by law, even in cases where he has reasonable doubts about the correctness of such a sentence.
3. Facts that cannot be construed as valid evidence provided for by law are forcibly discarded, although in specific circumstances they may turn out to be very significant.
4. The judge is provoked to a formal approach to the consideration of the case: instead of examining the circumstances in its entirety, he is prompted by the system of legislation to mechanically collect the grounds recorded in the law.
5. The provisions of the law that determine the evidence of certain facts, in order to achieve the completeness necessary for their use, inevitably acquire a very large volume, which complicates their use and increases the possibility of discrepancies, contradictions between different rules, arbitrary interpretations.
6. The formal strength of evidence does not protect against the arbitrariness of a judge either, since he retains the recognition of certain facts that fall under the data in the law for determining valid evidence.

Based on these and other considerations in modern law, the formal strength of evidence, in most civilized states, is not recognized.

• Averina Yu. A. The theory of formal evidence and judicial enforcement // Jurisprudence. - 2006. - No. 5. - S. 233-242.

• Judicial duel