On Documentary Evidence In Civil Litigation

Among all types of evidence in civil litigation of our country, documentary evidence is undoubtedly the most important one and it plays a core role in civil litigation, especially in contract disputes. However, in the practice of civil litigation in our country, the evidence rules governing the use of documentary evidence are too simple and too general; besides, the lack of theoretical study on documentary evidence is not proportionate to the importance of documentary evidence in litigious practice. Intensifying the study of documentary evidence is crucial to accurate judgement of case facts and the fulfillment of justice.This dissertation consists of four parts. The first part is an introduction. Beginning with the functions of documentary evidence, it discusses the limitations of documentary evidence, and then puts forward some rules governing the use of documentary evidence. The second part discusses the competency of documentary evidence, focusing on the examination of formal truthfulness, the influence of original copies on the truthfulness of documentary evidence, and the two important -aspects affecting the relevancy of documentary evidence: the delivery of documents and the promise made on documentary evidence by the parties. Since legality has no special significance for civil documentary evidence, it is not included in this dissertation. The third part deals with the probative value of documentary evidence, including such issues as: the effect of substantial truth on the probative value of documentary evidence; the priority of documentary to witness testimony in probative value, the restriction put on the probative value of documentary evidence by witness testimony, and some legal rules on the probative value of documentary evidence (therules concerning the different probative value of various types of documentary evidence, and the rules of corroboration to documentary evidence). The fourth part talks about some special problems related to documentary evidence, including the probative value of defected documentary evidence, the identification of the signature of documents, the investigation into the truthfulness of documentary by the court, the guarantee of objectivity of report documents in an action on contract. In the research of this paper, the writer applies such approaches as comparison and historical study, and combines his theoretical study with the litigious practice in our country, so as to put forward some rules on the use of documentary evidence that are suitable for the practical needs of our country.Documentary evidence is a document or an article which proves case circumstances with the contents recorded in its words, signals, pictures, etc. Documentary evidence has many advantages, including: its relevancy with the circumstances to be proved is obvious, direct and easy to judge; its embodiment is steady, which is good for the maintenance of its probative force; documentary evidence is usually historically formed, and its contents are fixed and thus have high reliability. These advantages meet the needs of civil litigation which stresses on autonomy of will, hence documentary evidence plays a core role in actions on contracts. Of course, documentary evidence has its own limitations. The application of documentary evidence depends on the existence of original copies, which fails the protection of some civil rights because of lack of original copies; the requirement for original copies also obstructs the use of documents formed in some transmission forms, such as fax. Meanwhile, the contents-of documentary evidence can not show the truthfulness and rightfulness of the formation of it. On the contrary, formal truthfulness may disguise the wrong causes of its formation. The limitation on witness testimony in civil litigation which evolves around documentary evidence strengthens the dependence on original copies, and thus lowers the possibility of revealing the truth behind documents. In order to effectively discern case circumstances and exercise justice, the rules on the use of documentary evidence in civil litigation should focus the ability of finding the truth and overcome thedisadvantages of documentary evidence, and meet the needs of efficiency, technological advance and protection of social credit.To gain evidential competence, a document must be true and relevant. The problem of truthfulness that affects the competence of documentary evidence is its formal truthfulness, that is, the document is truly produced by the stated producer, and the words and other signals in the document should be unchanged ever since the birth of the document. The two major law families both require authentication of documentary evidence, and have formed their respective systems. There are three points in their systems that we can make use of: one is to divide documents into official documents and private documents according to the status of the producers, and establish different ways of authentication; another point is that the approaches of authentication are varied; the third point is that in order to promote the authentication of documents, such measures as unfavorable presumption and fine should be taken. In the civil litigation of our country, we should improve our ability of authentication from these three aspects.The original copy of documentary evidence is the most reliable guarantee of its formal truthfulness. However, we should not be too strict on the requirement of originals. The best evidence rule in Common Law evidence codes ever stipulated that only original copies can be used to prove the truthfulness of the contents of documents, but in recent years, copies of documents are thought to have the same admissibility. On the other hand, Continental countries are much stricter on the requirement of original documentary evidence, which is also true in our country. In our country, copies attain their probative value only if they are provided with their originals. It is necessary to expand the use of copies. Fax should be regarded as original copy, but the party who provides the fax should take the responsibility of proving its truthfulness.The relevancy of certain documents is based on their delivery, and we need the proof of such delivery to establish the connection between documents and case circumstances. The proofs in such cases are divided into two types: the mail-box rule and the arrival rule. Our country adopt the arrival rule, but sets very high standardsof proof for the arrival of documents, which can easily exempt the receiver from his liability by his simply denying the reception of the documents. We should clarify the connotation of the arrival rule and lower the standards of proof to a rational degree, and adopt the mail-box rule in the case of documents claiming rights.The agreement between parties on documentary evidence limits or expands the use of it, or restrict or allow the use of certain documentary evidence beforehand. Based on the adversarial principle and monotony principle in civil litigation, we should not be too strict on such agreements. Generally speaking, such agreements should be regarded efficient, and the court's use of evidence should conform with the agreements, unless they directly violate the court's power of evidence evaluation.Substantial truth of documentary evidence refers to the fact that the content recorded in the documentary evidence is an exact reflection of the fact without any concealment, fabrication, or wrong recording. The problem of substantial truth is often disguised by formal truth of documentary evidence. However, substantial truth is the basis of the probative value of documentary evidence, and has its independent evidential significance. The attention paid to the substantial truth of documentary evidence is in line with the need of litigious justice.Documentary evidence possesses advantages that witness testimony lacks. It's rational to think that documentary evidence is superior to testimony, but we still need to put some limitations on documentary evidence. The two major law families both stress the superiority of documentary evidence to testimony, and require that certain legal acts must be conducted in written form. This is regarded as exceptions to the rule of monotony of wills. In order to maintain the principle of free proof, there are many exceptions to the proof with documentary evidence, among which testimony is used to prove facts that can not be possibly kept in written form. For example, fraud, mistakes made in writing a document, virtual execution of contract, etc. The requirement of written proof is the exercise of the advantages of documentary evidence, and is for the purpose of protecting trade security. Allowing witnesses to use other forms of proof which are in conflict with documentary is another form of trade security protection. To enable testimony to challenge documentary evidence,the reliability of testimony is indispensable. The statement of parties, as an important form of testimony, executes it functions together with the use of other types of evidence, experience and logic. The reliability of statements made by interested parties can be guaranteed by introducing polygraph and forcing the parties involved to court to give testimony and to undergo cross-examination.The rules on the probative value of documentary evidence are an interference with the free evaluation of such probative value by legal evidence. The judicial interpretation of our country has stipulated the differences between various types of documentary evidence, which is not scientific. We should be cautious in citing it. The corroboration rules on the probative value of the copies of documentary evidence can lead to the confusion between formal probative value and real probative value, we should take copies of documents as independent evidence in practice.Defected documentary evidence refers to documentary evidence which has formal defects. Such defects can include defects of carrier, defects of spelling and wording, defects of signature, etc. These defects all affect the competence of documentary evidence to different degrees. They limit the probative value of documentary evidence, or even make it lose its competence as evidence.The signature by the producer can be used to verify the documents. The originality of the document can be judged according to the signature of the producer, and thus establish the relationship between the document and the parties in a case. The signature and seal of the documents are used for the authentication of such documents. To limit the approach of authentication to such traditional ways as signature and seal can no more meet the needs of modern life, and will lead to failure of evidential competence of many documents. We should keep an open mind to the ways of signing a document, and allow the existence of multiple ways to establish relevancy between documents and the parties.Documents are often used for fabrication, which benefits the doer but harms the country and other citizens. It's reasonable to allow the court to investigate in their truthfulness. However, we must set strict conditions on such investigation so as toavoid the abuse of power by the court and thus violate the lawful rights of citizens. The conditions include: reasonable grounds; malicious collusion of the parties; the loss thus caused is great. Meanwhile, the court should be self-controlled in their investigation.The report documents in actions on contracts can rarely be trusted by judges, which limits the full exploitation of documentary evidence materials. Some documents are admissible according to the exceptional rules of hearsay in Common Law countries, which can be enlightening to us. It reminds us that we can increase the use of such documents so long as we have sufficient measures to guarantee the truthfulness of them. The frequently used written proof in Chinese courts show that they are prepared by people unrelated to the case and states certain kind of notice, and can be used written testimony instead of non-report documents.