سلطة القاضي في تقدير الأدلة وفق قانون البينات الفلسطيني
Date
2020-06-14
Authors
انطون عبد الله انطون ابو جابر
Anton Abdallah Anton Abu Jaber
Journal Title
Journal ISSN
Volume Title
Publisher
Al-Quds University
Abstract
The subject of this study is the authority of the judge in appreciation of the evidence According to the Palestinian Evidence Law; given the importance that the judge exercises his authority through the evidences contained in the Evidence Law; in which, His role is to undertake a set of activities and efforts that he exercises by passing the law itself in order to protect the right and settle the dispute before it.
The judge has the authority to assess evidence through facts and evidence presented during the lawsuit; In order to reach the truth and issue a court ruling consistent with the provisions of the law, that includes protecting the rights and legal positions of individuals; so that, the judge enjoys this power and derives it through the evidentiary legislation. Thus, the basis of that authority is what is authorized by law; so, the judge shall have freedom of judgment during the conduct of inference and the work of evidence
The law defines the Judge’s authority concerning evidence, whereby anyone who resorts to the judiciary has to present evidence regarding the claimed right, and in return his opponent denies the existence of such right. In view of the importance of the evidence and the role of the judge thereof, I discussed in this study the general regulations of the Judge's discretionary authority in assessing binding evidence and the nature of this authority, in addition to the principle of impartiality of the Judge, its basis and supervision by the Court of Cassation.
The law defines the Judge’s role and position on evidence, as it differs from one evidence to another. We find that the judge’s authority in non-conclusive binding evidence, such as written documents and acknowledgments is different than conclusive evidence such as the decisive oath in which the judge’s authority is restricted and limited. The more the determinative effect of the evidence, the more restricted becomes the judge’s authority in its assessment.
As for non-binding evidence, such as testimony, suppletory oath, inspection, and referral to skilled experts, the judge has a broad role in assessing such evidence including excluding certain evidence and weighing pieces of evidence over others, provided that it is mentioned in the judgment the reasons that prompted the Judge to do so.
The researcher concluded that the Palestinian legislator that adopted the mixed evidence system gave the Judge a positive role in applying assessing evidence without departing from the basic principle, which is the principle of impartiality of
the judge and equality between the litigants, in addition to the supervisory role of the judge regarding all pieces of evidence, where the Judge has a broad authority in this
regard.