Collection Of Documentary Evidence And Procedural Guarantee

The collection of evidence can be divided into three ideal modes according to the different status of the three elements of power, duty and right in the collection process: the government power directed mode, the duty directed mode and the litigant right directed mode. In the power directed mode, government power is at the core among the three elements. Subject of collection, range of collection and use of evidence after collection are decided or dominated by the government or the court. Duty, especially an opponent litigant's duty to put forward evidence, is to serve the operation of government power. Although theoretically, the litigants' right is the source of power, it is not stressed by this mode. It is simply a by-product of the implementation of government power.In the duty directed mode, the court does not interfere with any evidence collection, and the "power element" is close to nil. The collection and submission of evidence is totally in the charge of the litigants. Although the theoretically judicial organizations have complete power on whether and how the litigants should collect evidence, which makes this mode seem to be a "power directed mode", actually this is not a kind of substantial power. On the contrary, in order to avoid the risk of inability to prove, the litigants take evidence collection as a kind of duty. Here all evidence collection activities are directed by this duty. Such duty is a product of the classical liberalism, it is based on the theory that litigants have even capacity to collect evidence. The power directed mode is a reform of the previous two modes. Under the basic premise of "who claim, who prove", and in order to guarantee that the litigants' rights can be realized, this mode stress the power's function to guarantee, In other words, among the three elements of power, right and duty, power is at the center, while right and duty serve power. Between power and right, the realization of rights needs to be guarantee by power; between duty and right, the realization of rights needs to be supported by duty. Hence, in order to enable litigants to collect evidence effectively, the opponent's duty to provide evidence should first be stipulated. This does not only provide a legal basis for the collection of evidence, which increase the predictability of this action, but also makes it legal for the judicial power to interfere when the litigants are not able to fulfill their duty.Since the beginning of modern history, with the increase of modern type litigation, the equality between opponents has been weakened, the formal equality in classical liberalism has gradually become a barrier to the litigants' equal access to justice. Hence, in the 20^th Century, such countries as Germany and Japan began to amend their civil procedural laws, so as to guarantee the litigants' equal access to justice, thus made their litigation mode shift from duty directed mode to power directed mode.First, in order to guarantee the full realization of the litigants' right to prove, they stipulated that the first purpose of the power directed mode is to guarantee the litigants the right to directly or indirectly collect evidence. Take the discovery of documentary as an example, one party has the right to require the other party to disclose documents relevant to the subject matter or relevant to the claims and defenses, In the document submission ruling, one party has the right to apply to the court to order the opponent party to submit relevant documents, which shows that the litigants are granted via legislation the right to collect evidence.Of course, this right of litigants is limited. It is limited in order to help realize itself, In the collection of documentary evidence, such limitation is shown in two aspects: one is the prohibition of searching, the other is the exclusion of illegal evidence. The exclusion is to the discretion of the court according to the seriousness of illegitimacy.Second, the premise for the litigants' right to collect evidence is the clarification of the opponent's duty to submit documents, otherwise this right has no object to apply. Hence, in such countries as the United States and Japan, it is clearly stipulated that the opponent has the duty to submit relevant documents. Especially in the United States, it is required that at the request of one party, the opponent party has the duty to disclose all documents relevant to all claims and defenses. In countries such as Germany and Japan, through extensive interpretation of relevant rules, the range of discovery is close to that of the United States. Moreover, in order to guarantee the effectiveness of this duty, when the applicant party has difficulty to discern the range of discovery, the opponent party has the duty to help fix this range.On the other hand, the fulfillment of duty needs to be ensured by punishment, otherwise it would not have legal binding force. Thus in order to ensure the smooth submission of documents, certain punishment measures such as fine and unfavorable litigation results should be created.In order to balance the interests between opponent parties, legislation has granted certain immunity based on such interests as privacy and secret, especially immunity of documents for self use and work product. Although this bars the realization of litigants' rights to certain degree, on a more profound level, such measures provide protection to the opponent party's privacy and brings rightfulness to the submission of documents by a third party, hence ensure the realization of rights from another angle.Last, after the law has acknowledged the rights, it has become a basic function for the government power to guarantee the realization of such rights. The power usually plays this role in two ways: one is direct guarantee, that is to do this through direct interference of government power; the other way is indirect guarantee, which is to do this through the enforcement of relevant laws so as to guarantee the realization of rights.With an overall view of law amendment in such countries as the United States and Japan, the general trend is to scientifically distribute and balance the above-mentioned three elements, so as to help realize the litigants' rights. When we look at the civil evidence collection system in our country, there is a clear tendency to weaken the court's power while reinforcing the litigants' rights, which is in agreement to the general trend of the whole world. However, we haven't done enough to guarantee the realization of the litigants' right to prove, which has caused a lot of problems in our judicial practice.The main reason for these problems is that in a right directed evidence collection mode, the litigants right to direct the evidence collection is not sufficiently realized: in our legislation, litigants shoulder very harsh responsibilities to submit evidence, but they don't have the right to directly collect evidence so as to fulfill their responsibilities; on the efficiency level, evidentiary investigation is dominated by the least motivated participant—the judge, while the most strongly motivated participants—the litigants, have no right to directly collect evidence. This makes the litigants deprived of their right to prove, and thus there is no really equal access to justice. It should become the basic trend in the judicial reform of our country to establish a sound right directed evidence collection system, and grant the litigants enough right to collect evidence.Since the writ of evidence investigation has been applied in our country for nearly ten years, and since it has been written in the Evidence Rules that litigants should ask the court to collect evidence, and it has been generally acknowledged by the court, the litigants as well as lawyers, we should stick to a "relatively reasonable way" to reform our present evidence collection mechanism. By absorbing the useful contents of documentary discovery and writ of documentary submission, and combined with the evidence exchange system in our country, we should establish a "right directed" document collection system, so as to guarantee that litigants can collect necessary evidence to a maximum degree, and thus realize their right to prove and even their litigious right.