关键词: 基层司法, 自由心证, 环境侵权, 法律移植

Abstract: Facts as ground,laws as standard has been China's judicial guideline since the Reform Era,but in reality judges deviate from such principles. In a 2009 air pollution case in Southwest China,the presiding judge willfully misread evidences to reach the conclusion that pollution victims had not proven their case. A closer examination revealed the reason behind the judge's decision was an official finding by the local government denying of any existence of pollution prior to the trial. Whereas China has adopted much of Western style civil law and civil procedure,judges are at same time bounded by the judicial ideology of "serving the overall situation".Hence Chinese judges struggle to meet the two seemingly incompatible sets of judicial goals and institutions. Making compromises in judicial fact finding procedures is a quite common practice. "Intime conviction",originated in 17th Century Protestant England,is an important principle in the law of evidence requiring judges to determine case facts according to their own conscience. It was introduced to China at the turn of the 21st Century and its adaptation was mostly for utilitarian consideration,rather than the establishment of judicial ethics. The legal modernization in China was largely driven by the desire to develop and compete internationally,not noticing the fact that modernization is a process of "disenchantment"(e.g. wide societal belief in "freedom of conscience"). Therefore,the question whether China would see "intime conviction" successfully implemented,and for that matter,whether China can establish a rationalized judicial system in Weberian sense,is as much up to the progress of "individual ethics from below" as to that of "institutional design from above".

Key words: civil justice, intime conviction, environmental torts, legal transplant