Research On The System Of Exchanging Civil Evidence Of Our Country

To most of our practitioners, the system of exchanging civil evidence is a new thing, before this, although in the "Summary of Discussing National Economy justice"and "Certain Stipulations of holding a Economic court on Ordinary Procedure in the First trial ", the Supreme People's Court proposes that we can call two litigants to exchange the evidence before the trial, but we do not make the procedures and the stipulations of exchanging civil evidence. Therefore only the minority developed local courts implement them and formulate their own implementation regulation, in point of fact the effect is not extremely ideal lacking of the backing of the system. In 2001, the Supreme Court promulgates "Certain Stipulations about Civil Evidences" and establish officially the exchanging evidence as one part of the system of time limits of evidence. With the present system of time limit of evidence, they become important milestone in judicial reform of our country, it is an important step which caused the core of the action pattern transforming from the judgments to the litigants, and the trial pattern transforming from continuously trying to the centralism trying. Our country's system of exchanging civil evidence studies the system of disclosing civil evidence of British and America, but because of the action pattern, the judicial idea, the social background and the other difference, there are obvious differences between them. By the comparatively analysis, this article want to seeks deficiency in the system of exchanging civil evidence of our country and proposed the consummations. This article divided four parts. The first part introduces the present stipulation of our country's system of exchanging civil evidence. the system of exchanging civil evidence of our country is the system that before the trial the two litigants organized by the people court automatically submits respective evidence and exchanges the evidence with opposite party, finds out respective evidence situation mutually in the choosing time assigning time. In the draft explanation of the "stipulation of the civil Evidence", the first civil courtyard of The Supreme People's Court explicitly pointed out that the system of exchanging civil evidence is the constituent of the system of time limits of the evidence. It is a special request for the case, which is complex and difficult, or too many evidence existed, in the system of time limits. Obviously, exchanging civil evidence is a supplement for the system of time limits of the evidence. Moreover, looked from the concept, we only locate the function of this system in demonstrating and exchanging evidence. "Stipulation" makes the applicable scope of exchanging evidence, one kind of situation is that the litigant proposed the application, and judge decided whether carries on the exchanging of evidence or not; Another situation is according to significant and the difficult of the case, the judge decided on his own initiative whether carries on the exchanging of evidence. The umpire manages the exchanging of evidence and the court resides in the absolute dominant position, but the "Stipulation" has not been clear about which department operates it; The time of evidence exchanging has close relation to the system of time limits of the evidence, the time of exchanging evidence is the day that the time limits expired, the time limits of presenting evidence should no less than 30 days after delivering to the both sides. To protect the bilateral litigants' right, the litigant is allowed to presents evidence when the other litigant receives the evidence from him and present the opposite evidence. But except the special case, the time of exchanging should generally less than two times. The second part introduces and evaluates the origins and main content of the system of disclosing civil evidence of British and America. The system of disclosing civil evidence of British and America produces in 16th century in England; it was an extremely mature action system already with the unceasing improvement in the judicial practices. Regardless of the "Civil action Rule" in England or the "Federation Civil action Rule" in the USA, They all exhaustively stipulate the establishment of the procedure, the scope of disclosing and the disposition of the procedure of the system of exchanging civil evidence. the function of the system of exchanging civil evidence lies in reorganizing the issue in the action, preserving the evidence, making the full preparation for the court ,and at the same time making bilateral litigants appraises the case well in the disclosing of the evidence and achieve the conciliation. Because this system has agreed with the goal and the essence of the civil action, and the establishment of procedure is reasonable and effective, looked from the movement the system of disclosing civil evidence has already became the strong character in civil action of the Britishand America, nd the basic function of the system has realized, more than 90% of reconciliation rate was the persuasive certification. Certainly, in the initial period, because of too neutrality and releases authority of the court, it appears the abusing of the procedure right litigant which caused the cost of disclosing evidence increases and the lawsuit delayed. But with the unceasing improvement of the system in every country, the phenomenon of abusing the right is being eliminated. The third part the situation of analyzes the system of exchanging civil evidence of our country and compare it with the system of disclosing civil evidence of British and America, there are three major problems in the system of exchanging civil evidence of our country: the first problem is lacking the procedure before the trial. Our country do not establish the complete procedure of suing and answering, not strictly stipulate the prosecuting and answering of the litigant, and not make the prosecuting and answering as a strict duty. The bilateral litigants not full understand the opinion of opposite party before the evidence exchange, which affected the effect of evidence exchanging. After evidence exchanging, it also lacks the essential procedure to reorganize the conclusion of bilateral litigants, and organizes bilateral litigant's reconciliation. The second problem is the authorities of the judge are too large. The evidence exchanging managed by judge, in fact, it is not the equal exchanging evidence between the litigant, but the bilateral litigants submits the evidence to judge, even some courts also had to question the witnesses. The judge have done the fully preparation work before the trial, which is a bigger beneficiary to the judge but not the litigant. The third problem is the right of collecting evidence lacks the safeguard. The system of disclosing civil evidence of British and America designs the reasonable method and procedure in disclosing civil evidence, it fully safeguards the litigant's right of collecting evidence. But our country's system of exchanging civil evidence attached in the system of time limit, while enlarged the litigant's responsibility to present evidence, strengthened the litigant's right of collecting evidence, the incardination of the responsibility and the right causes realizing efficiency and fair of lawsuit difficult. This fourth part proposes the consummating of the system of exchanging civil evidence of our country. One is to study the system ofdisclosing civil evidence of British and America. Although the model crossing legal system inevitable has many problems, but looked from the development of culture and attorney, this is completely feasible. And looked from the consummating the system of exchanging civil evidence of our country and speeding up the reform our country's civil action system, it is also extremely essential. Two is to establish the effective procedure of evidence exchanging including clearing about the scope of evidence exchanging, the establishment of the working instruction, the establishment procedure of mutually exchanging the evidence. Three is to improves the procedure of suing and answering including the system of losing the evidence, the time limit of presenting evidence and the meeting before the trial. All of this will make the evidence becomes the core in the procedure, and play the function of reorganizing evidence and the action issue, enhancing the efficiency of trial and the promoting reconciliation.