The Research On The Civil Entrapped Evidence Collection

This text is mainly divided into five sections.Section one is mainly discussed in the appellation, definition and classification of civil entrapped evidence collection. With regard to the appellation, some researchers argue that "entrapped evidence collection" is easy to make people misunderstand, and is thought as the illegal way of collecting evidence by mistake, so we should adopt the new words or show the legality and illegality with different words as well as legal or illegal situation. In fact, the author has a similar feeling too. However, this there is no possibility or necessity to do like that. In the aspect of definition, many researchers copy the definition of the criminal enticing investigation directly. Even some researchers use the definition of criminal enticing investigation for reference to make new definition for civil entrapped evidence collection; they commonly restrict the definition's range in civil case of tort or in the aspects of producing evidences. Those are wrong understanding in the range of the research object of the civil entrapped evidence collection. The author points out that, the civil entrapped evidence collection exists not only in the civil case of tort, but also in the civil case of breach; The simple behavior of producing evidence does not belong to the civil entrapped evidence collection but the backdoor screen and record. In the categorized respect, drawing lessons from the method in the criminal enticing investigation, many researchers divide the civil entrapped evidence collection into two modes: opportunity offering type and maliciously tempting type, according tothe person seduced into the entrapment whether have already had intention to implement the tort before luring. This kind of classification in the civil action is meaningless.Because civil entrapment is similar to the criminal enticement, and the practice and theory of the criminal enticing investigation are comparatively mature, so the mainly discussion in Section Two is about the criminal enticing investigation as well as relationship between the criminal enticement and the civil entrapment. Though most countries object to abusing enticement to investigate, they do not forbid enticement to investigate definitely, and the restriction on the enticing investigation is not so strict as we think. Theoretical foundation to limit investigation in enticement is to prevent law officers from abusing the power of investigation. Because the subject in the entrapment settings, the target and the content of the entrapment, the consequence abused are different, so the attitude towards the civil entrapment evidence collection should be more tolerant than towards the criminal enticing investigation.In the laws and regulations of our country, there are no direct, clear prescriptions about the civil entrapped evidence collection. The article No.68 of involved judicial explanation is the mainly legal clause about civil entrapment, so the Section 3 is mainly concerned about it. It will be pointed out, that its characteristic of abstractness and generality determines its ineffectiveness. The exclusion of civil illegal evidence without exception established by that clause cannot be connected with our existing evidence collecting system, and does not accord with our practice of evidence system.Section four mainly discusses the current situation of civil entrapped evidence collection in our country, in including the situation of legislation, judicature and legal research.Section five mainly discusses the application of law and improvement of legislation in the civil entrapped evidence collection in our country. The text points out that, under the existing legal frame, it is very difficult to exclude the evidence collected by civil entrapment in fact. Some methods in practice are rather far-fetched.Generally speaking, it is more desirable to invalid all the contracts concluded between the evidence-collector and the evidence-collectee. The civil entrapped evidence collection and civil illegal evidence exclusion should be absorbed into evidence law, however, at the time, they need to be technically processed in some degree.