Guarantee For Right Of Proof In Civil Litigation

Right of proof is a series of rights of litigation that the party can collect and produce evidence for his/her own insistence, apply to the court for its investigation and collection, argue about the weight of proof, request the court to judge the proof equitably and open its process and reasons. Being a basic right for parties, right of proof is guaranteed by many systems.On the basis of a series of scientific methods, the paper starts from the basic theoretical issues and takes a deep study in every aspect of right of proof. Meanwhile, comparing with the relative foreign systems, the paper analyses the objection in Chinese system of the guarantee of right of proof, and brings forward some personal suggestions.The purpose of this study is to solve such problems as how to reach the consensus among the court and the party, complete the preparation procedure of issue in action, conduct a concentrated proof investigation and produce the external ad judgments. The implement of believable truth and the purpose of civil procedural law should be based on the decrease of unfair ad judgments related to evidence, and the essential carrying out of principle of equality on weapons. The content is divided into seven chapters as following.Chapter one, the basic issues of right of proof. Being a basic procedural right, the right of proof is not only one of important parts of cooperation ligitation, but also included by constitution. The purpose of system of civil proof should be to pursue the acceptable truth by parties. The relative systems of guarantee of right of proof should be established onthe basis of the duty of cooperation which fits for China.Chapter two, the study on the guarantee of right of proof and burdenof proof. The paper thinks that right of proof should be protected before the burden of proof, the establishment of both the systems of essential qualificatory negation and burden of proof should be based on the protection of right of proof.Chapter three, the study on the system of the guarantee of right of proof and the collecting evidence (part one). This part focuses on the discovery system in Anglo-American genealogy of law, and the collectingevidence system in Japan, Germany, and Taiwan.Chapter four, the study on the system of the guarantee of right of proofand the collecting evidence (part two). This chapter mainly reviews the history of the system of collecting evidence in China, thinks that the theory of Chinese civil system of proof collection should be shifted from duty of investigation to duty of cooperation, from "objective truth" to "believable truth", but the operation mode is exception. Furthermore, the author brings forward some suggestions on idiographic construction of system of collecting evidence.Chapter five, the study on the guarantee of right of proof and judge's responsibility.The author claims that judges should open their legal opinions to parties instead of simple clarification. Under the necessary circumstances, the judges should collect the evidence by their responsibility.Chapter six, the study on the guarantee of right of proof and the cooperation duty of parties. The paper defines the parties' obligation of truth and the obligation of proving probability which belongs to one side that doesn't have the burden of proof should be established, the guarantee of right of proof and the obstruction of civil proof, and the theory of fiction of admission.Chapter seven, the guarantee of right of proof and testimony of witnesses.The existing system should be reformed to encourage more witnesses to appear in court, accept the eligible recite from the absent witnesses.Chapter eight, the study on other systems related to guarantee of right of proof. It includes the perfection in system of preservation of evidence, the relaxation of the limit to the credibility of evidence, the establishment of general principle of evidence.In epilogue, the author indicates that right of proof should be guaranteed adequately by civil procedural law and the purpose of system of civil proof should be to pursue the acceptable truth by parties. The relative systems of guarantee of right of proof should be established on the basis of the cooperating litigation which fits for China.