Obligation of proof with bonds and freely evaluation of evidence

The rule of "Proving by Deed" is a rule of the Law of Proof that consists of two rules, which obliges the proof of legal transactions exceeding the amount imposed by the law again with the definite evidence imposed by the law, and the proof against definite evidence regardless of the amount to be performed over definitive evidence. The rule is generally expressed as the "Proving by Deed" because of the wide application area of the proof by a promissory note, which is one of the definitive proofs. There are disagreements on many points in doctrinal and judicial decisions about applying the rule despite its substantial history in our law (1879). This not only prevents the Stare Decisis but also causes legal uncertainty. This legal uncertainty caused by the rule alone causes a loss of rights. The rule of "Proving by Deed" has the quality of being a limitation on the right of proof because it limits the activity of proof. Since the right of proof is the element of the right to be heard, and since the right to be heard is the element of the right to a fair trial, the right of proof is the limitation of the right to be heard, and the right to a fair trial, in this order respectively. The rule is also an exception to the principle of a judge's free evaluation of evidence, which is accepted in our law because it does not allow a judge to evaluate and appreciate the evidence freely. Since the rule of "Proving by Deed", which is a limitation on the right to proof, legal hearing, and ultimately, fair trial, is a fundamental right of the right to a fair trial, the limitation must comply with the procedures and criteria imposed by the constitution regarding the limitation of the fundamental rights. However, the constitutionality of the rule is still controversial. When the purpose of the trial and the rule are considered, the disadvantages of the rule of "Proving by Deed" are more than the advantages it provides to civil justice. It will be more appropriate to abandon the rule completely and to give effect to the principle of the judge's free evaluation of evidence. Keywords : Deed, Proof, Fair Trial, Evaluation of Evidence.