On The Procedural Guarantees Of The Parties' Right To Obtain Evidence

Though the Civil Procedure Law prescribes the parties' right to obtain evidence, it is still an unwarranted right because of the lack of procedural guarantees. In practice, the problem of evidence obtaining has not been solved thoroughly. As the reform of litigation system goes forward, more and more essences of adversary system has been introduced, and the position of the parties in litigation has been reinforced. The burden of proof of the parties is consolidated, but this consolidation has got no corresponding premises. We find no adequate procedural guarantees of the parties' right to obtain evidence. It's very hard for the parties to fulfill the burden of proof, which may make the intention of the reforms of trial mode and litigation system fruitless. To solve this problem, we should promote the study on the procedural guarantees of the parties' right to obtain evidence, which will do good to both the reform of civil litigation system and the theoretical study of civil litigation. Beginning with the analyses of the problems in the evidence obtaining system, this paper reasons out the values of the parties' evidence obtaining, and points out the necessity of procedural guarantees. After the general overseas review of the procedural guarantees system of the parties' right to obtain evidence in practice and in theory, it puts forward the design of that in China. Finally, it points out the social conditions for the realization of the procedural guarantees system. This paper consists of five parts.Part One: Introduction. Because there are still many problems in the legislation and practice of the evidence obtaining system, it is significant to study on the procedural guarantees system.Part Two: Setting forth the necessity and the significance to establish the procedural guarantees system. Discussing the relations between the parties' evidence obtaining and litigation proof, litigation efficiency, procedural justice and litigation justice, it reasons out the values of the parties' evidence obtaining, and argues for the necessity and the significance to establish the procedural guarantees system in theory.Part Three: Reviewing and Analyzing the Overseas Procedural Guarantees System Practically and Theoretically. In this part, it probes into the effects of litigation ontology, the theory of litigant and the theory of litigation proof on the procedural guarantees system. It displays the appearances of the procedural guarantees system in adversary system, ex-officio litigation pattern and ultra ex-officio litigation pattern. It also introduces the overseas procedural guarantees system in details. Through these reviews and analyses, it concludes that the procedural guarantees system is more a certain choice of evidence pattern supported by some certain litigation theories than a system design. As more and more essences are introduced into our civil litigation theories, we should nail down the pattern of evidence system, and then make up the procedural guarantees system.Part Four: the Design of the Procedural Guarantees System in China. The paper figures that we should choose a suitable pattern of evidence system, which consists of the legal evidence system as the main body and the free evaluation pattern as the complement. By perfecting the regulations of civil proof through the legislation of Civil Evidence Act, the pre-trial process and some corresponding systems will be formed, and the procedural guarantees system can be established.Part Five: Conclusion. The paper points out that the conversion of people's traditional concepts and the social belief in law are indispensable for the written system to be put into the practice.