On The New Evidence Rules Of The Civil Procedure In China

New evidence that was regulated in Several Provisions About Evidence of The Civil Action, which was issued by the Supreme People's Court, has perfected present evidence system to a certain extent, and it is of benefit to grasping and understanding new evidence in the judicial practice. But as an evidence rule of civil action system, it is inadequate to investigate and discuss it no matter on the theory circle or in the judicial practice. This text spreads out the discussion on the basis of this state. The text is divided into five parts, it tries to research and analysis new evidence rules and considering of unreasonable factor in the new evidence rules, it aims to put forward the settlement measure in the guidance of available civil action concept, also provides rational opinions and suggestions for modifying civil action law or perfecting evidence system in our country. Introduction Starting with four lively cases that possess a certain representative, the text introduces new evidence rules truly and perceptually to legislator, practice lawman, the law-abiding person, the judicial practice person and theory scholar who are interested in research of new evidence. Chapter 1 Outline of new evidence The concept of the new evidence seldom has clear definition and generalization no matter on the theory circle or in the judicial practice. The writer tries to put forward the concept of new evidence in a certain degree through summing up and putting scattered thesis materials, existing legal provisions, judicial explanation files in order, Namely while the people's court is hearing a case, the new evidence means the factual materials or evidence material that were not offered to the people's court not because of party's subjective reason before the expiration of quoting time limit or in the first trial, and were not undergone party's cross-examination and authentication of people's court, having a certain influence on cognizance of case fact and judgement result of the case. At the same time the writer puts forward that new evidence possesses four characteristic of the time limit, objectivity, creditability as well as decisiveness in case affect. This part concerning new evidence concept put forward and new evidence characteristic refined is footstone of new evidence rules theories and basis of practice reference. After explaining the concept and characteristic of the new evidence, the text sums up and summaries seven kinds of concrete case of the new evidence, and offers certain reference for the fact that the law is applicable to discerning the new evidence in the judicial practice; at the same time new evidence is divided theoretically into the evidence of the new discovery and the time delay evidence, and it is divided into the new evidence which is agreed to cross-examine by the party, legal new evidence and the evidence that can be regarded as the new evidence in the judicial practice. In addition in terms of legal norm it is divided into exclusionary rules of new evidence, including rules of new evidence, demur rules of new evidence, cost burden rules of new evidence and the rules of impacting on former referee. The dissertation about identification (seven kinds of case) and three kinds of classification of new evidence in the text may guide practice operation, and also devote to theory research of new evidence in future. Chapter 2 The system of new evidence rules in China and related foreign instance of legislation Breaking through the rules of new evidence by the Supreme People's Court, this part has established the rules system about exclusionary rules of new evidence, including rules of new evidence, demur rules of new evidence, cost burden rules of new evidence and the rules of impacting on former referee of new evidence, and lays stress on introducing main content of every rule. At the time of affirming research achievements about the new evidence rules regulated in Several Provisions about Evidence of The Civil Action issued by the Supreme People's Court, it puts forward the relation and linkup among various new evidence rules and between new evidence and civil action system. And advances the writer's ideas and suggestions: (1) The writerdivides again the case which the evidence has appears, but the party can't know, if it can be regarded as new evidence, and points out that"usual people's understanding"is deferent in procedure law and in substantive law, namely belongs to the question of relation between general and special; (2) Explains the subjective and objective reason of the new evidence existence; (3) Has criticized the legislative style that can be regarded as the new evidence, and has pointed out there are destruction to meaning of the procedure and challenge to authority of law; (4) The time that new evidence is put forward in retrial should be before starting the retrial procedure, not be after starting the retrial procedure; (5) Defines the inscape of cost burden rules of new evidence and imagines solving it in a case. In addition the writer advocates that cognizance of the new evidence in the rules should suit more strict explanation. The writer hopes that it can provide some help to law making and justice of our country by expounding of this part, and provided the reference for theory discussion and judicial practice. Related foreign instances of legislation of new evidence. By introduction of the foreign instance of legislation of new evidence,we can understand the rules of new evidence generally. Especially understanding rules of new evidence as well as handle-method in justice practice that exist in other nation, we can analysis the origin of system that new evidence exists in our country and reach the conclusion that we should pay attention to understanding it in narrow sense in justice practice. Chapter 3 Related system and judicial practice of new evidence In this section, it introduces the relationship of new evidence with remand system, withdraw of lawsuit system, the rights of explain system and limitation period of proof system, and brings forward the related problem that should be paid attention to in the judicial practice. It not only has explained that new evidence rule isn't a simple,single and independent evidence system, but also a important lawsuit system interdependent and interact with other systems in the lawsuit program, it also has advanced constructive and rational opinions: (1) Defines the concrete relation between the new evidence and...