证据制度类型的研究日渐成为学界的关注点,众多学说的背后既隐藏了对权力滥用的担忧,也显现出证据制度类型界定的“漂移”现象:概念批量生产造成理论混乱、理论界定与司法实践严重脱节。诸多学说并未真正突破法定证据与自由心证的二元类型框架,中国实质上应被纳入自由心证的制度范畴。但“谁的心证”和“如何自由”则需结合中国司法场域的运行实践,进一步认真追问。 The research on the type of evidence system has gradually become the focus of academic circles. Behind many theories, it not only conceals the abuse of power, but also reveals the phenomenon of “drift” defined by the type of evidence system: the concept of mass production causes confusion in theory, Judicial practice is severed. Many doctrines did not really break through the dual type framework of legal evidence and free testimony, and China should be essentially included in the scope of the system of free testimony. However, “who’s heart certificate” and “how to be free” need to be combined with the operational practice in China’s judicial field to further seriously question.