On The Principle Of Common Evidence In The Civil Procedure

In civil proceedings, the problems that whether the principle of common evidence could be applied and how it applied to the lawsuits will affect the parties' legal rights and legal entitative interests. However, our mainland scholars have little concern in the problems of the principle of common evidence, few practitioners are aware of "the principle of common evidence" either. Therefore, once falling across some problems of the principle of common evidence in the proceedings, judges are either ignoring these existing problems, or pull about these problems by the same token that summarizing and evaluating of evidence are attributed to the jurisdiction of the trial (or by reason of free evaluation of evidence) , which are often lacking in rationality. In this article, I will discuss the basic theories of the principle of common evidence and issues related to systematically, with expectation that these studies could be helpful to academic research on the procedural law and judicial practice.This paper is divided into four parts to discuss. In the first part: via the clarification of the concept of the principle of common evidence by many scholars, it points out that the meaning of the common evidence includes "evidentiary material in common" and "evidence statement in common" and then focuses on discussing the basic theories of the principle of common evidence, advancing the internal relations between free evaluation of the evidence and the principle of common evidence, and points out that the theoretical basis of the principle of common evidence in the procedural sence is not equal to free evaluation of the evidence. Further more, the interrelated problems of the principle of common evidence are discussed in detail, mainly from that two aspects to start theoretical analysis such as whether the application of the principles of common evidence contrary to violate Verhandlungsmaxime or constitute s surprising civil judgement urprise. In the second part: it explores applications of the principles of common evidence in various proceedings, mainly to the issues that can and how to apply the principle of common evidence in the confrontation between the parties, parties in Joint actions, parties and the third party. And then this paper lays claim to providing valuable theoretical references to the problems aforementioned. The third part of the thesis: it discusses the issue of application of the principle of common evidence ("Evidence statement in common") easily. This part of the contents opens out at the preconditions of "evidence statement in common",and tells how to implement "evidence statement in common" in various proceedings. Part IV:The problem of issue preclusion validity is disputed in the academe, but this article discusses the problem of gathering the principle of common evidence with issue preclusion validity in judgment of common issues, and concluded by saying that the theory of issue preclusion validity introduced in the judicial system are rational.