Response To Softening Demand Of Applying The Exclusion Rule Of Late Filed Evidence In Judicial Practice

At the very beginning of the Evidential Rules in PRC Civil Litigation was adopted by the Supreme People's Court, the court assumed that such a stringent rule would be a cure-all for increasing efficiency and eliminating undue delay in introduction of evidence. However, it turned out to be a double-blade sword. Empirical evidence shows that the efficiency-enhanced rule could also led to unjust results in mobile and complex judicial practice. Many judges, including the author, feel confused when applying exclusion rule of late filed evidence. This paper aims to discuss this dilemma from a practical point of view.As a judge rather than a legislator or a legal scholar, the best way for me here is to focus on applying exclusion rule of late filed evidence in a flexible way in order to guarantee access to just results in stead of on perfecting it. In this sense, this paper is an empirical study, not an academic research. Some legal scholar may argue softening exclusion rule of late filed evidence is outside the ambit of discretion conferred upon the court and contradicts with the observance of time limits. However, in judicial practice, the court does apply the exclusion rule of late filed evidence in a flexible way and achieve a positive outcome. This paper is divided into five main parts.The first part gives a definition of the exclusion rule of late filed evidence in civil litigation. It is an exclusionary rule under which evidence is not admissible when whoever bears the burden of proof fails to observe a time limit set out in law or fixed by the court without reasonable grounds. In most cases, the late filed evidence is beyond the scope of other party's cross-examination and is excluded by the court. Such an exclusionary rule includes three basic elements– a time limit, the fault of the party and the consequence of inadmissibility.The second part discusses the justification of the exclusion rule of late filed evidence in civil litigation. In general, such an exclusionary rule is helpful to maintain due process, increase efficiency and achieve justice as well. However, the exclusion rule of late filed evidence, with more focus on efficiency, runs the serious risk of producing unjust results.The third part analyses the reasons for various late filed evidence in judicial practice. Exclusion of late filed evidence arises out of situations where evidence is submitted after the expiry of the time limit set out in law or fixed by the court. This part first lists eight main kinds of late filed evidence circumstance, followed by an analysis of the reasons for these late filed evidence in judicial practice.The fourth part examines the necessity for softening demand of the exclusion rule of late filed evidence in judicial practice. It is a necessity for accommodating legal environment and public legal awareness in our country as well as offsetting the risk of unjust results to apply the exclusionary rule in a flexible way.The fifth part focuses on the countermeasures for softening demand of the exclusionary rule. Since there are a lot of late filed evidence existing in judicial practice, strictly applying the exclusion rule of late filed evidence in civil actions and proceedings would have led to unjust results. In this case, it is necessary and meaningful to soften the application of the exclusionary rule in judicial practice. In this part, it puts forwards three main countermeasures for softening demand of the exclusionary rule, among which two are illustrated by a case study with one case held by the Supreme People's Court and another held by me. And particular focuses put on the following two countermeasures: One is exclusion of applying the exclusion rule of late filed evidence with due diligence, another is applying the exclusion rule of late filed evidence in a flexible way in judicial practice.