A Study On The Procedural Safeguards Of Parties' Rights For Collecting Evidence

Our Country's civil procedural act has fewer the regulations of the procedural safeguards of parties' rights for collecting evidence, which not only makes legislative contents disjointed, but also makes a paradox of reinforcing parties' burden of proof and stagnating the rights for obtaining evidence in the legislation and judicial practices. Its solution will rely on a study on the procedural safeguards of parties' rights for collecting evidence. Meanwhile this study will be helpful to the reform of our country's litigation scheme and concrete litigating system, the theoretical preparation for deepening the reform of civil trial form and the fulfillment of the value of civil procedure. Starting with the analysis of the legislative stipulations of China's evidence-collecting system and its operation, combining the investigation of overseas means and procedural safeguards of parties' collecting evidence, this paper firstly discusses the necessity of the procedural safeguards of our parties' collecting evidence, secondly discusses the litigating value of the procedural safeguards of collecting evidence and lastly makes a tentative study of perfecting the procedural safeguards of collecting evidence. The whole paper generally falls into six parts:Part I : Introduction . This part, starting from the civil evidence's importance in modern civil litigation, extends the necessity if a study of procedural safeguards of parties' collecting evidence and then points out the writing thinking of this paper.Part II: The legislative stipulation of evidence-collecting system and the analysis of its operation in China. This part makes an analysis of the legislation of evidence collecting system, questions the enactment of parties' applying for the court to investigate and collect evidence for objective causes and then dissects the state when parties will find it hard to collect adequate evidence for lack of procedural safeguards of collecting evidence and its consequent on abuses in the judicial practice.Part HI: The general survey of overseas parties' procedural safeguards ofcollecting evidence. By inspecting the procedural safeguards of parties' collectingevidence in main countries of the two law systems, we have the following enlightenments: The adversary system of the main countries with two different legal systems is bases on parties' procedural safeguards of collecting evidence. Our civil procedural pattern, while transformed into the adversary system pattern, should use foreign countries' corresponding stipulations for reference to perfect the procedural safeguards of our parties' rights for collecting evidence, thus solving the contradictory between the reinforcement of the burden of adducing evidence and the stagnation of the right safeguards for collecting evidence as well as helping the reform of litigation scheme and concrete litigating system in China.Part IV: The necessity of endowing our parties with the procedural safeguards of the rights for collecting evidence. This part, from the angle of promoting parties' procedural dominant position, putting the social benefit into full play, parties' fulfilling the burden of proof and reconstructing our pretrial procedure, expounds on the necessity of perfecting the procedural safeguards of our parties' rights for collecting evidence.Part V: The perfection of our parties' procedural safeguards of the rights for collecting evidence. This part, by discussing substaintive and procedural justice, litigating benefit, reform of trial form and containment of judicial corruption, explores the actionable value of the procedural safeguards of our parties' rights for collecting evidence and then makes a tentative study of the perfection of them.Part VI: Conclusion . This part briefly discusses the litigating conditions of our parties' procedural safeguards of the rights for collecting evidence, further indicating the writing purpose of this paper.