A Study On The System Of Civil Pretrial Evidence Preservation

The system of pre-civil-trial preservation of evidence, an important part of the system of evidence preservation, plays a vital role not only in protecting evidence from being destroyed before a trial, but also in guaranteeing appellate courts to make impartial judgment, or enabling interested parties to be aware of the status quo of the dispute, and even facilitating a settlement of the dispute before a trial. In these years a few terms or provisions have been found sparsely in such laws as Special Maritime Procedure Law, Trade Mark Law, Patent Law, Copyright Law, Mediation Law, as well as in some judicial interpretations which is, to some extent, an improvement of it in legislation, yet contrary to the increasing appearance of new disputes, there are still no systematic law in China prescribing the actual practice and proceeding of evidence preservation before a lawsuit, a failure to meet the requirement of judicial practice. In academy few deep-going researches have been made on the mechanism of pretrial evidence preservation, neither has any universal acknowledgment been reached concerning the legality of pretrial evidence preservation, especially for common civil and commercial cases. Some scholars claim that it is legal for a court to take safe measures afore to preserve and fix evidence, while some others refute otherwise. With regard to the deficiency, this thesis attempts to make a further study of the system of pretrial evidence preservation on the basis of a survey of its status quo in legislation and judicial practices in China, a comparison and contrast of the legal systems between Britain-American laws and continental laws, and an illustration of its values and functions, and thus to contribute a little to the establishment and improvement of the system. The paper consists of the following parts:Part 1 briefly reviews researches in this field within and without China after a general presentation of the status quo in China, and then puts forward the thesis as well as states the purpose of the paper.Part 2 focuses on its conception, characteristics and nature, attaching more importance to its significance and functions, and thus to provide an overall view of the system from the perspective of theory.Part 3 first compares and contrasts the status quo and judicial practices of the system inside and outside China, pointing out the defects of it in our country, and then analyzes what brings about them.Part 4 summarizes what has been written above, reemphasizing the urgency and significance of establishing and improving the system of civil pretrial preservation of evidence in our country.