Research On The Court's Evidence Collection In Civil Procedure

The civil procedure reform of China begins at the late 1980's, paying a great attention to the system of evidence collection. All the different reform suggestions agree to fortify both parties'responsibility of providing evidence, weaken the power of the court's investigating evidence. And the latest legislation reflect this idea. The Law of Civil Procedure issued in 1991 put the litigant's investigating evidence first and the court's investigating evidence secondary in our system of collecting proof."Some code about the evidence of civil procedure"issued by the Supreme Court in December 2001 makes a restraint to the court's investigating evidence. Then, the court's evidence investigation and collection of our country has defections in legislation and very simple articles which result in poor operation in practice. But what disappointed us at the same time is that the research on evidence which starting from model of civil procedure ignored the further research of the court's investigating evidence when it emphasized on the litigant's burden of producing proof. Civil lawsuit is a process of evidences providing, cross-questioning the evidences, verification for evidences and trial. Evidence is the key of civil procedure, and it should be formulated by laws not judicial interpretation. The court's evidence investigation and collection is one part of the evidence collection. Collecting the evidence by the court according to application is just one of methods of litigant's providing evidence and must be cross-questioned. It should be involved in the pretrial proceedings and is applicable to evidence"can't be collected by litigants because of objective reason". Investigation judge who is distinguished by general judge could collecting in person or just sign an investigation code. Meanwhile, the power of procedure control should be emphasized in order to coordinate evidence collection by judge and by parties.