A Study On The Applicable Rules To Taking Evidence Abroad

This dissertation focuses on the related matters regarding application of rules to taking evidence abroad, examining evidence-taking legislation in some major countries, analyzing the uniform rules in Hague Evidence Convention governing the evidence-taking abroad and the incidental questions in its application by the contracting parties, and considers whether the Convention is exclusive or mandatory means of obtaining evidence located abroad. In the end, the Dissertation examines the statutory legislation and judicial practice in the People's Republic of China, and answers the questions of how to reform evidence-taking legislation and how to employ the rules under the principle of convenience, generosity, cooperation and reciprocity in obtaining evidence located abroad.The dissertation consists of six chapters as follows:Chapter I outlines the basic rules andpractice of taking evidence abroad, holding that taking evidence abroad falls into the litigants' private rights and responsibilities. The main items of this chapter include: means and norms of taking evidence abroad, taking foreign witness stand, taking evidence by video link in another jurisdiction, characterization of "civil and commercial" matters, foreign law proof, and other related matters concerning the approaches in taking evidence abroad .Chapter II focuses on the conflicts of procedural and substantive rules regarding evidence-taking, and analyzes the causation of the conflicts, especially on the "pre-trial discovery" process which is characteristic of American civil procedure. In this chapter, the "blocking statutes" in some countries concerned is also be examined and discussed.Chapter III discusses the unification and harmonization of the rules for obtaining evidence abroad. The first part of this Chapter introduces the main provisions in the Hague Evidence Convention to the question of taking evidence, and the second part comments on the compromise on the "pre-trial discovery" between America and other countries, and the third part analyzes the factual effect of the Convention and specify the unresolved problems in the Convention.Chapter IV focuses on the treatment of the Hague Evidence Convention by the United States. This chapter consists of four parts: The first part describes the general attitude of America against the Convention. The second part outlines the different approaches to the interpretation and application of Hague Convention by American courts. The third part examines "Aerospatiale" which is an important case decided by the supreme court of the United States. The fourth part discusses such issues as interpretation of the Convention, application of local rules against the convention due to the jurisdiction over intra-parties, and counterbalancing of interests between concerned parties and sovereign states.Chapter V makes a research on the conflict rules determining the applicable law to the evidence related matters, and suggests that in some circumstances even the foreign procedural law can be used to settle the contradict in obtaining evidence and judicial assistance.Chapter VI examines the legislation and practice in China in respective of taking evidence abroad, and analyzes some applicable rules to be modified or reformed in this area. In this chater it is suggested that with the development of foreign relations, evidenc rules be improved and reformed to modernize civil procedure, and China should introduce direct means of obtaining evidence abroad and provide more efficient judicial assistance on reciprocity.Conclusion: The application of rule to taking evidence abroad is a two-sided issue, and sovereign states should commit themselves to the objective of granting generous judicial assistance in foreign related process, protecting the interests of the parties concerned and public interests.