The Study On System Of Spoliation Of Evidence In Civil Procedure

In order to pursue the case real discovery and realize the goal of centralized trial,the civil procedure should give the opportunities and means to parties to collect thecase based evidence of judgment. To make this procedure protection given to asubstantive role，the parties should have the full right to collect evidence relevant tothe case for the actual attack and defense，otherwise procedure safeguards that wouldhave increased the risk of only limited form. Moreover, to further protect thedominant position of the parties, the procedure gives its balanced opportunity ofpursuit in questioning entity interests and procedure benefits involved in the dispute,and the parties badly need to obtain the evidence held by the other party or a thirdperson.However, with the social and economic conditions change, pollution, productliability and medical malpractice damages and other modern dispute are increasing, inits proceedings there is no shortage of evidence existing only in the hands of one partyor a third person, thus causing the other party proves difficultly. In order to implementthe principle of equality of arms in real terms between the parties and between theparties and the court, they should equally approach and commonly use the data relatedto the case claims as litigation materials, evidence materials and relevant legal andfactual information, so that on the one hand it has sufficient information as a basis toform appropriate referee, on the other hand it helps clients independently choosetreatment and resolution of disputes. In this context, the civil procedure law field ofspoliation of evidence system emerged. The one party who hinders the activities ofthe other party or a third person activities by the way of the implementation of thedestroying, concealing or refusing to submit proof of evidence etc.is given somecertain no interests. In order to eliminate the spoliation of evidence conduct and replyto the parties in legal status of essencial equality.The body of this thesis consists of five chapters:The first chapter is about the basis content of spoliation of evidence system In thecivil procedure and its legal basis. Our domestic scholars in general define spoliation of evidence relatively simple, a’nd they dont distinguish among spoliation of evidence,proof of prejudice and proving prejudice, they are in the same semantic use of thesewords. In reference to the usage by the scholars of Japan and the majority of ourdomestic scholars, this thesis adopts the phrase of spoliation of evidence. Spoliationof evidence system is that the party can attribute to the other party or a third person inor out of proceedings, intentional or negligent act or omission, resulting in his ov/nactions proving difficultly or impossibly, so the court decides on the assured fact tomake a beneficial adjustment system for the impeded parties. Furthermore, before ouranalysis of what elements of spoliation of evidence to meet its establishment and ofhow the court assesses spoliation of evidence conduct, we must firstly discuss whythere is spoliation of evidence system itself, that is its legal basis. Theorists whichhave discussed theory about legal basis of the spoliation of evidence system mainlyhave substantive law damage compensation obligation theory, theory of expectationof possibility, rule of thumb theory, against the civil procedure good faith doctrineprinciple theory, fair and sanctions theory and litigation together duty violatesdoctrine. However, legal basis of the spoliation of evidence system is not limited toone side, but inclusive. Although the above theories not independently explain legalbasis of the spoliation of evidence system, but the introductions of the theories are toprotect the evidence right of the parties. Therefore, the efficiency of litigation and thevalue of procedure is the goal of "protecting the evidence right", which constitutes thelegal basis of the spoliation of evidence system.The second chapter is about the spoliation of evidence system in the civilprocedure comparison inspection. German civil court deals with the spoliation ofevidence behaviors in civil procedure originated from the practice of the Court of theGerman Empire on November19，1887，the decision to create the German judicialpractice, the rules on the spoliation of evidence conduct to new insights. From thelegislative cases point of view, Germ’any "Civil Procedure Law" doesnt make generalregulation in the spoliation of evidence system, but in the form and legal effect of thedocumentary evidence, reconnaissance and interrogated parties part. Japanese "CivilProcedure Law" by its parent law Germany "CivilProcedure Law" in order to draw the blueprint, the same with its corresponding regulations. In the U.S., the wholesystem of legal norms makes highly negative evaluation on the spoliation of evidenceconduct. With the evolution of the historical development of American law, thequestion to the spoliation of evidence is originated from the law of evidence, butAmerican law for the regulation of the spoliation of evidence is not limited to thisareas, the law of evidence, to be treated. Accordance with its provisions, according tothe patterns and weight of the spoliation of evidence conduct, it may constitute acriminal offense, civil violations and acts of violating lawyers’ ethical norms. While inChina, Taiwan revised "Civil Procedure Law" in2000earlier than Germany andJapanese " Civil Procedure Law" regulation, adding to the general regulation of thespoliation of evidence system, which makes the spoliation of evidence system from afix in the field of individual provisions to the evidence area in civil procedure law ofgeneral theory. Moreover, with its echoing, the "Civil Procedure Law" presentedindividual regulations used in the field of documents putting forward its orders,inspection assistance obligations and asking the parties.The third chapter is about the spoliation of evidence system in civil procedureconstituents， It includes the subject element, the object element, the subjectiveelements and the objective elements. In terms of the subject element, whether theparties or a third person may constitute the main body, which includes the partiesholding and not holding the burden of evidence. Elements for the object, five kinds ofevidence such as documents, inspection materials, witnesses, parties and experts canbe proven method of obstruction of the object. Fault is the subjective element of thespoliation of evidence. Fault is a kind of psychological state that can be attributable tothe actors, manifested in two forms of intentional and negligent fault. The objectiveelements is relatively complex, which is subdivided into four aspects of time elements,the behavior elements, the result elements and causation elements. Elements in termsof time, whether pre-litigation or proceeding that may constitute the spoliation ofevidence conduct. The behavior elements, the acts and omissions may constitute thespoliation of evidence conduct. To the result elements，the parties shall prove unablyor prove difficultly and leave the facts of the case identified. In terms of causality, the spoliation of evidence conduct and the situation that the facts of the case is provedunably or difficultly should have a causal link.The fourth chapter is about the legal effect of the spoliation of evidence systemin the civil procedure. The spoliation of evidence conduct in the civil procedure leadsto the facts not identified, which not only goes against the entity and procedureinterests of the parties, but also seriously disturbs the normal conduct of the procedure.Therefore, many countries have punished the people who conduct the spoliation ofevidence in the civil procedure with adverse legal effect. In addition, with thespoliation of evidence theory developing so far, scholars have the various theoriesabout the legal effect of the spoliation of evidence, mainly including proofresponsibility conversion said, free heart card said, standards of proof reduce said,compromise said, implied admission said, presumption proposed establishment saidand compulsory measures said. It is because of the legal effect is the key to thespoliation of evidence system, then the scholars are divergent on this matter and put itto a hot dispute. That the diversity of the procedure practical operation and differenttheories about the spoliation of evidence system leads to a discussion about the legaleffect of the spoliation of evidence system turned from one side to diversification. Inother words, the type and flexibility of the legal effect of the spoliation of evidencesystem is an important direction for future development. Therefore, we’d better nottake a uniform approach to punish the obstructionist, and the court should adhere tothe principle of good faith doctrine, carefully considering the subjective mind of theobstructionist, the implementation methods, attributable to the extent and theimportance of the impeded evidence and so on, in combination with other evidencebased on the way to take free heart card for facts to make a determination. That is,when the court can choose to presume evidence of people’s claims to be true, ordirectly to identify the obstructionist’s implied admission, or to reduce the standard ofevidence for those facts, even when necessary to converse burden of evidence, or totake coercive measures, such as fine, detention and direct force.The fifth chapter is about the construction of the spoliation of evidence system inthe civil procedure. China’s "Civil Procedure Law" Article102punishes the destructive conduct of important evidence. From the legal effect of sanctions point ofview, setting mandatory judicial sanctions and criminal sanctions to punish theconductors is on the hope that through public law punishment to stop the occurrenceof such obstruction. However, only from the aspect of public law is not enough toregulate the conduct of the spoliation of evidence, and it should be from the privatelevel to relieve those affected by prejudice. Supreme People’s Court "On a Number ofProvisions of Evidence"(the following referred to as "the civil rules of evidence"),Article75states:"there is evidence to prove that one party concerned holds evidencewithout warrant refus, if the other party concerned claims that provide the contents ofthe evidence against the evidence holder, this claim may be inferred established."Thus，in our civil procedure if the parties or other participants in the implementationof the spoliation of evidence, the people’s court may adopt both aspects of the publiclaw sanctions and aspects of private law sanctions to make the conductors bear on theno interests. Thus，the spoliation of evidence system can be established. However, inthe whole view, China’s current the spoliation of evidence system is very shallow,which not only made the non-unified understanding between practitioners andtheoretical circles not yet formed, but also raised a lot of discussions and explorationson the issue of the spoliation of evidence. It is obvious that building the spoliation ofevidence system in line with our national conditions has become an urgent problem.Firstly, China’s "Civil Procedure Law" should provide general terms of the spoliationof evidence, as a principle to deal with the spoliation of evidence conduct, in order toprovide general guidance for constructing the spoliation of evidence system and tomake up for the shortcomings of individual system. Secondly, China’s "CivilProcedure Law" should establish and improve the command system of proposedevidence, system of expert inspection to help identify and the parties inquiry system,thus forming "general terms of the spoliation of evidence system, the commandsystem of proposed evidence, system of expert inspection to help identify and theparties inquiry system’1the four-in-one spoliation of evidence system.