On The Civil Discovery System Of U.S.A.

Discovery system stemmed from England, then its tradition was followed by the colonists in northern America, which made discovery system rooted in many states of U.S. established later on. Since the American discovery system became a statutory procedural system in 1938, it has gradually occupied the core position in American civil pretrial preparing procedure. In recent decades, the scholars of Chinese mainland have done a lot of research on American discovery, also there are many fruits of it. Pursuing the elders'tracks, the author put the physical and mental examination, one of the discovery methods provided in American Federal Rules of Civil Procedure, as his analyzing object. Since becoming the statutory procedural system, the American discovery grew in a adversarial circumstances in which the involved parties have been regarded as the leading role, and experienced several amendments; its main aim is to make the parties get prepared for the trial and encourage settlement; its scope is rather broad, except the statutory privileges and litigant documents prepared by attorneys. Since 1938, the method of physical and mental examination got its crucial amendment in the year of 1970, 1987, 1988 and 1991. Many precedents concluded by federal courts formed a set of convoluted effect and construing rules. It was established to resolve three problems, firstly, to break through the doctor and patient privilege; secondly, to harmonize the dual judicial system in U.S.; thirdly, to discover the truth, and build a fair litigant circumstance and achieve justice. Before the action brought to the court, this kind of examination can be started by the agreement or stipulation between the parties; if the action was brought to court, one party can't start examination of this kind through agreement or stipulation between the parties, instead, the requesting party must apply to the judge for an examination order, after the judge check if the case is in controversy, if there is enough good cause, if the examinee and the examiner's ID or/and certification is satisfactory, the judge will make full use of its discretion to decide whether to give an order or not. If the judge makes an order, the examinee and the examiner must obey it, otherwise, they will be punished. By presenting the researching fruits of this examination, we can fully understand the background of its start and development, the operating procedures and principles in practice, so that the secret veil of this examination is discovered and more concrete, deep and comprehensive information about it is shown before the scholars in Chinese mainland. After the presentation of initiated research mentioned above, the author find out defects in like system of Chinese mainland, referencing the situation of Chinese mainland and the developing trend of other countries, the author brings forth some suggestions to improve the like system of Chinese mainland.