Research On The Hearsay Rule In Civil Procedure

The hearsay evidence rule, also known as the exclusionary rule of hearsay, it is the addition of illegal provisions; the hearsay evidence is not admissible. As one of the oldest evidence rules in American evidence law, the hearsay rule has been called the "cornerstone" of American evidence law, after its development and evolution of hundreds of years; the hearsay rule has become a large law system. Exclusionary rule of hearsay evidence theory includes the jury system, the adversarial litigation system, and its own defects. But there still be some of them are contained by the case law and legislation, so the hearsay exception is created.As the continuous change of social ideology, the contents of the hearsay rule exception has become much more than the its content. At the same time, its content is in also changing,which has attracted the attention of scholars. However, after twentieth Century, the strict rules of evidence also gradually opened, the hearsay evidence began to be widely adopted, causing a trend of “liberalization of hearsay evidence rules ".As the reform of the judicial system in China, China's civil trial mode has changed from the original completely inquisitorial system into today's adversary mode to some degree. As a result, the academic discussion of Chinese hearsay evidence is on the hit. Prior to this, the scholars in our country have had a lot of discussion in the feasibility of establishing the hearsay evidence rule in criminal litigation, and most scholars support the appinion that it is necessary to construct the evidence system. Affected by this, China's civil majority also in favor of construction of the rule of evidence,to consolidate the current, containing elements of the adversary system mode of trial, to realize the procedure justice of entity value and the value of procedural justice, in order to judge on the basis of the above to make accurate judgment.This paper will start from the analysis of the probative force of hearsay rule, relevant national civil litigation and criminal litigation, combined with China's specific situation in civil litigation, study from the angle of civil litigation. To find out if it is necessary and feasible to simply introduce the hearsay rule into the field of civil litigation, civil litigation and whether the hearsay rule should be or how to be referenced and constructed.These are the questions that the paper attempted to answer.This paper is divided into six chapters. The first chapter is about the basic problems of civil hearsay evidence. Mainly discusses five problems: one, the concept, attribute, the form and elements of hearsay evidence. Hearsay evidence is the core concept of hearsay evidence rules in the foundation, so the issues about the hearsay evidence are the foundation for further study of hearsay evidence rule. Two, the concept for the American evidence rule, hearsay evidence rule, and hearsay evidence rule are analyzed. Three, the principle of direct verbal is an important principle of civil law countries used in the trial phase, it and the hearsay evidence rule in the American legal system have both differences and connections, this analysis is important for the research on the hearsay rule. Four, as an important evidence rule in American law system, the best evidence rule and the hearsay rule from the system background and legal system all have similarities, at the same time, two kinds of rules of each system construction and development because of their unique characteristics, this creates a difference, through the analysis of the similarities and differences of them, we can have further knowledge about them. Five, evidence law and procedural law are the mutual infiltration, mutual penetration and intertwined. The in the jury system, adversary system litigation system and trial system of procedure system produced great influence on the hearsay rule.The second chapter is about the history of hearsay evidence rule. Based on the study of common law rule of hearsay evidence, the origin of the emergence and development of its history, the hearsay evidence rule can be roughly divided into three stages. In short, before the middle of the seventeenth Century, the rules of hearsay evidence although not formally established, but with the development of English litigation system, which has already begun the hearsay evidence rule. From the late seventeenth Century, the hearsay evidence rule formally established in the UK, and with British external expansion and spread to other countries, has become a kind of evidence rule in Anglo American law system of the most complex and the most characteristic. After twentieth Century, the Anglo American law system countries have carried out the reform greatly on the hearsay evidence rule, the trend of development is gradually expanding the exceptions of hearsay evidence rule in Anglo American law system.The third chapter is the history of hearsay evidence. Not only analysis the establish and exceptions of the hearsay law system in the countries of American according to the theory evidence, but also study the question and the advocates of reform of the hearsay evidencerule in Anglo American law system comprehensively, and the new views of theory of the hearsay evidence rule in Anglo American law system. Overall, the theoretical development of the hearsay evidence rule has two development trends. On one hand, with anecdotal evidence of the authenticity and reliability enhancement, the Anglo American law system puts forward a new theoretical trends of easing to apply the hearsay evidence rule; on the other hand, the force of evidence in Anglo American law system from the past emphasis on hearsay evidence emphasizes the hearsay evidence rule to modern procedural justice value this direction.The fourth chapter is applicable to overseas civil rule of hearsay evidence. A detailed investigation of the hearsay evidence rule in Anglo American law system countries(regions) from the point of view of exceptions identified, hearsay evidence rule of hearsay evidence and hearsay rule applicable procedures etc.This paper selects related content, American Britain, Australia and the Hongkong Special Administrative Region as the research object of the hearsay evidence rule is analyzed. The author chosen Germany and France which are the countries of continental law system as an example of the principle of direct and verbal trial use in countries of continental law system is analyzed.The fifth chapter is the civil litigation the hearsay evidence rule and the China. The author analyzes the present situation of our national all the proceedings of hearsay evidence comes to the following conclusions: Chinese legislative spirit and Chinese related civil litigation law embodies the spirit of the legislation of the hearsay rule, but the relevant legislation in China civil action but with the hearsay evidence rule in conflict. Then, the author analyzes the reason that China has not established the hearsay rule, points out the drawbacks of the direct has not established the hearsay evidence rule and reference defects.The sixth chapter is an idea of establishing Chinese civil rules of hearsay evidence and its dilemma. Firstly, the author discusses the necessity and feasibility of establishing civil hearsay evidence. Secondly, the author points out that the hearsay rule in the Civil Procedure Law of our country to build on the existing problems. Finally the author puts forward legislative proposals to construct our country the hearsay evidence rules of civil.The author propose to use “Using hearsay Rule” to differ from the definition used in common law countries.