Reflections On The Discovery System In Civil Procedure

The Discovery system is an organic part of Pre-trial procedure and a middle link between the prosecution of litigant and the court trial. The Discovery results from Britain and US, then it has the functions of gaining evidence, reducing or eliminating surprise attack, promoting reconciliation, moreover, it has fairness and efficiency. As the development of the civil judicial system reform, the present judicial system displays the two flaws day by day: the evidence surprise attack and the lawsuit delay. In order to solve this problem, various local courts raised upsurge of the evidence exchange, and the scholars have also carried on many discussions to the Discovery of Britain and US. In fact, there are no relevant regulations among China's civil procedure. The Highest People's Court promulgated the Relevant Regulations on Civil Litigation Evidence (hereafter as the Regulations on Civil Litigation Evidence) on December 21st, 2001, establishing the evidence exchange system to further implement the civil justice procedures. The establishment of the evidence exchange system has the vital significance regarding the consummation civil trial program. Nevertheless, the Regulations on Civil Litigation Evidence are comparatively simple and brief. Basing on this, the thesis intends to research on this subject and provides suggestions on legislation of evidence exchange system.The thesis has been incorporated by 4 parts, besides the introduction and the conclusion.Chapter one clarifies the rationale of the Discovery. Firstly, we talk about the Connotations of the Discovery. There are several kinds of connotations about the Discovery. The meanings of the Discovery was defined in strict and freely ways, and compared with other views in the world. Secondly, we talk about the values of the Discovery. The value orientation of the Discovery is to realize litigation justice, overcome litigation delay, reduce litigation cost and accelerate settlement. The Discovery gives the litigants equal opportunities for the collection of evidence, and can prevent the lawsuit surprise attack. Then the Discovery can make the litigants to debate on the case of fair preparations and finally unfolds the case fact which is fair on the substantive lawsuit and the procedural lawsuit. The Discovery keeps the balance of entity justness and the lawsuit benefit.Chapter two has carried on the objective evaluation of the Discovery in Anglo-American law system and continental law system. The Discovery in Anglo-American law system achieved the value of entity justness and the lawsuit benefit, the reasonable Pattern establishment and the reasonable responsibility establishment. But it causes the over-use of Discovery. The Discovery in continental law system which made the Discovery in Anglo-American law system as the model has the same functions.Chapter three is a review of the present condition of the Discovery in China. This part is composed by two, which are respectively the inspection and the appraisal of the Discovery in China. It is the key point of this paper. In the first place, the author looks back to the developing history and the judicial practice of the Discovery in China, and makes a questionnaire survey of judges, attorneys and populace. Through the discussion of the front part, the author has carried on the appraisal to the Discovery in China. Meanwhile the deficiency of it, by reason of the absence of legislative grounds on civil procedure law, perfect operating rules, relative regulations, the enough right of collecting the evidence for litigants and effective safeguard, is pointed out.Chapter four talks about the suggestions about making the rules of Discovery perfected in China. It is also the key point of this paper. This part is composed by two: First section is theoretical design of the Discovery in China. Thus a series of ideas have been expatiated on legal subject, range, time, and mode and exercising procedures to perfect the current Discovery. In addition, the author suggested setting up evidence collecting system, mandatory wrangle system and consummates the evidence time limit system. Second section is concrete operation sequence regulations.In brief, the author wrote this paper in order to do something to the construction of the Discovery in China.