Study On Evidential Agreement

Nowadays our academic research on evidential agreements(Beweisvertrag) is insufficient and superficial with respect to its definition, theoretical basis, form and validity, requirements, claim and procedural effects, necessity and feasibility of establishment in China and other related questions of great importance. Thus it is significant not only in theory but also in practice to summarize theories of the continent law system which is the cradle in this area, especially that of Germany, Korea and Japan,and go further. This paper will focus on the above questions, including Introduction and——(1)Discussion on definition of evidential agreementsThis part emphasizes introduction and comments on some scholars, points regarding the definition of evidential agreements in continent law system. In my opinion, definition as the instrumentality of theory whose connotation shall be sole and denotation shall be general shall be able to reflect the essence of one thing especially the current status in theory in order to facilitate the further study for scholars. Thus I agree with Jin Kuihong a scholar from Korea, who holds that evidential agreements are a set of agreements concluded by two parties and more beneficial to fact-finding for judges. Concretely, evidential agreements are reached by two parties with regard to means of fact-finding in specified cases, including three categories——confession agreements, burden of proof agreements(including presumption of fact agreements), agreements of means of evidence (as well as agreements related to evidence, agreements of limitations on evidence, arbitration appraisal agreements).Meanwhile I also analyze the relation between evidential agreements and litigation agreements, of which the latter includes but is not limited to the former. In other words, litigation agreements also include substantial and procedural litigation agreements.(2) Relevant legal questions and theoretical classificationsAt first, this chapter explains legal nature and validity of formal evidential agreements and then comes to a conclusion, that is those agreements belong to agreements in procedure law and are legal as to procedure law, based on——Firstly, all formal agreements mentioned above except agreements of means of evidence have one thing in common, that is their purpose is not to put forward objections to certain facts. In other words, they are all in connection with confession agreements, i.e. they all can be reverted to confession agreements.According to original confession agreements, one party takes the responsibility of not bringing forward objections to facts adverse to his or her interest, conditioned on giving up the possibility of proved adverse facts in future case. The aim of agreements is to ensure one party does not object to certain facts.Burden of proof agreements are also agreements about no disputes of certain facts in light of which parties give up the chance to put forward objections to certain facts but retain the right of proving contrary facts. Here what parties concern about is confession other than which party should shoulder the burden of proof.Presumptive agreements are the same with respect to confession. It is an agreement in content, which means when certain facts(preconditions)are proved, people cannot put forward disputes to certain facts(presumptive facts)conditioned on the right to reverse when contrary facts are proved. Thus presumptive agreements and original confession agreements have differences in two aspects, that is the former one deem the proof of certain facts as condition and retains the right to prove contrary facts.Secondly, nothing can be construed to give a different treatment of agreements of means of evidence. Like other agreements, agreements of means of evidence forbid one party making certain conduct in proceeding, i.e. the party who takes the responsibility may not bring forward evidence by certain means, like confession agreements in which the party who takes the responsibility may not bring forward objections to certain facts.Finally, we can classify evidential agreements according to different standards as follows——(1)statutory evidential agreements and discretionary evidential agreements;(2)formal evidential agreements and operational evidential agreements;(3)active evidential agreements and negative evidential agreements;(4)overt evidential agreements and fictional or implied evidential agreements. These classifications do good to master evidential agreements accurately, legislation improvement and application and enrichment of evidential agreements for judges. (3) Requirements of evidential agreementsAs to the establishment requirements of evidential agreements, no provisions are promulgated in the world. Thus it has to use relevant provisions of civil law. And if analogy is not allowed, the most common principles in current world will apply.In foreign laws, no provision of means of evidential agreements exists. If we shall provide for means of evidential agreements in procedure law, we have to prescribe in legislation that evidential agreements are about certain facts to be proved and are in written. Thus we come to a conclusion that people can conclude evidential agreements in any manner as there is no provision in civil procedure law. Like the freedom of means in civil law, means of agreements in procedure law can also be in virtue of freedom of means as long as there is no otherwise provision in civil procedure law.Unlike the establishment and means of procedural agreements, there are provisions of effective requirements of people who do procedural acts. In general, this applies to all procedural acts including procedural agreements. The capacity to come to such agreement belongs to procedural capacity. Therefore the capacity to enter into procedural agreements needs to refer to provisions in procedure law other than civil law which is also proved by this fact that entering into evidential agreements in a case which is pending also requires parties have adequate procedural capacity. Presuming that there is no difference between agreements conducted in court and out of court, the principle above applies too.With regard to a power of attorney, provisions of procedure law apply to procedural agreements too. If we take into account the nature of the subject (evidential agreements are always mixed with agreements in private law), we think sometimes it is proper to apply the civil law in particular cases.Contrary to civil law, procedure law generally does not prescribe for deficiency in expression of parties, ideas. For instance, there is no provision of annulment of behaviors done because of fault, force or fraud. Scholars in many countries are trying their best to fight against application of provisions of annulment in civil law to procedural acts.There is no explicit provision of annulment of procedural acts in procedure law but in civil law there is. To be concrete, legal acts is null due to violation of law, public policy, joking or illusive expression of parties, ideas.Generally speaking, supplementary conditions are not allowed as to procedural acts except procedural agreements, especially evidential agreements the reason of which is since parties may sign an agreement, the anticipated procedural effect of such parties can also be under certain conditions.(4)Claim of evidential agreements and procedural effectsVerhundlungmaxime is the system premise of evidential agreements which means procedural materials to determine certain facts can only be filed by parties or it can not be the basis of judgment. In other words, what materials parties use as foundation of claim and to prove whether a fact exists or not are totally determined by parties themselves. Thus, if the court considers agreements concluded before commencement of the case or out of court, the beneficial party shall claim that such agreement exists.An legal evidential agreement has effects as follows: first, confession agreements can be treated as agreements according to which the party who takes the burden has confessed certain facts. If there is an confession agreement, it is illegal to prove the confessed facts. As to burden of proof agreements and presumptive agreements, if the party taking the burden cannot prepare contrary evidences totally against the confessed facts, even though there are objections put forward, the court generally does not pay attention to it and thus it has no effect on judgment. The reason is that if he cannot prove contrary facts, the facts will be deemed as confessed facts. This principle also applies to agreements of means of evidence. As it is illegal to put forward the evidence, it will be treated outside of law and cannot be accepted by the court.(5)Feasibility of introducing evidential agreements into ChinaThe jurisprudential foundation of evidential agreements is parties, freedom. In other words, evidential agreements are the manifestation of spirits of private law spreading in procedural area and the embodiment of the principle of people who do procedural acts. The "amphibian" nature of evidential rule determines the possibility of evidential agreements. The system within which evidential agreements exists is the adversary system, which incarnates parties, freedom in civil procedure meanwhile evidential agreements as the concrete form of freedom represent it too. Therefore, adversary system is bound to contain evidential agreements. Thus they correspond with each other and the former is just the basis of the latter.The current procedural mode in our country is filled with too much authoritative elements and citizens, right consciousness is still very feeble leading to no basis of procedural mode and actual effect for evidential agreements. However, in the background of the construction of socialistic market economy, the introduction of evidential agreements into civil procedure is inevitable. So we need to take urgent measures to improve citizens, right consciousness and transform procedural mode.