A Research On Evidence Exchange System In Pre-trial In Civil Action

With the purpose to improve and standardize evidence exchange system in pre-trial, this article makes a study on the concept, history, modes and functions of evidence exchange system in pre-trial, and a comparison is made with related systems in foreign countries. Furthermore, the present situation of application of this system in China is analyzed in this article and a discussion on the improvement of Chinese evidence exchange system in pre-trial is given.I an introduction to evidence exchange system in pre-trialEvidence exchange system in pre-trial refers to such codes of conduct that parties exchange facts and information of the case before the trial, and makes acceptance or not to with evidences showed by the opposite party. It is also called evidence discovery system. Through the evidence exchange in court, evidences can be stabilized, controversial focus can be clarified, and the efficiency of trial can be improved. Thus, it is contributable to just trials.Due to differences in national conditions, historical backgrounds of the emergent of civil proceedings and in legal culture traditions, the Evidence exchange system in pre-trial can be divided into two types in general. The first is the adversary system of Common Law which is represented by America; the second is the ex officio doctrine of Civil Law which is represented by Germany. These different Evidence Exchange Systems in Court have their own characteristics, but basically have the same commitment of realizing the litigation function of"just procedure". The significance of its proceedings value is unquestionable.Evidence exchange system in pre-trial can date back to the judicial practice of Britain's law of equity in 16 century. Before the establishment of Evidence exchange system in pre-trial, there were only two procedures included in the Common Law, which were pleading and holding a hearing. The pleading procedure mainly handles with the controversial focus of two parties while the hearing procedure is to adjudicate on the focus. Such a proceedings mode is easy to lead to undesirable phenomenon as litigation raid, which is not conducive to the discovery of true situation.For the sake of justice and efficiency of litigation, the Evidence exchange system in pre-trial came with the tide of fashion. In 1938, America's Federal Rules of Civil Proceedings formally stipulated the Evidence exchange system in pre-trial as a statutory procedural system and improved it gradually. The Evidence exchange system in pre-trial provides system security for clarifying controversial focus, preventing evidence raid, encouraging conciliation between parties and realizing judicial justice in the end. From then on, judicial circles in various countries attach more and more importance to it and include it into civil proceedings laws or evidence laws.The Evidence exchange system in pre-trial embodies vital functions and values: firstly, it is conductive to the realization of judicial justice. It guarantees parties equal confrontation and equal right in litigation, meanwhile, it is conducive to discover the truth of the case and entity justice. Secondly, it is helpful to improve the efficiency of trial. Through the fixing of controversial focus, the trial procedure is concentrated to reach quick trial and quick settlement in order to reduce litigation cost. Fourthly, it contributes to the respect and protection of human right. The complete evidence exchange system can give full play to the participation of parties, which reflects the protection requirement of parties'procedural rights. Fifthly, it is helpful to make parties submit to a judgment. Evidence Exchange in Court makes judgment more open and transparent and contributes to increase the rate of submission to a judgment.â…¡comparison of evidence exchange system in pre-trial of two big law systemsThe evidence discovery procedure of Common Law is based entirely on the automatic discovery of parties, usually without any interference of the judge. This is a typical mode of adversary system. It has both positive side and negative impact. Positive factors are: firstly, the expected function of evidence discovery is basically realized; secondly, the setting of subjects'rights and obligations conforms to the purpose and nature of civil proceedings. Negative impacts include: parties'abuse of procedural rights by taking use of evidence discovery system appears in the implementation process, which is showed in aspects of abuse use of evidence discovery and circumvent of evidence discovery.Traditionally, city law countries implement Evidence Exchange in Court rules of ex officio doctrine; however, in practice, with gradual reform and with the prerequisite of adherence to the Court functioning proceedings, it have absorbed the advanced experiences of common law countries, and is gradually close to the mode of adversary system. From the perspective of present substance, it is similar to the mode that combined adversary system and ex officio doctrine together.The Evidence Exchange Systems in Court of these two law systems have their commons and differences. The common points are that: the pre-trial period is charged by the judge, while the Court doesn't collect evidences in the preparatory period .The court is endowed with certain effects of evidence right loss, and the controversial focus of the case must be clarified before the trial procedure. The differences are: first, ways of collecting evidence are different before the trial. The ability of city law countries to taking in evidences is weaker than common law countries. Second, these two systems are different in"irreversibility"and"reversibility". The irreversibility refers to that the first trial procedure composes of preparatory period and adjudication period, in which the preparatory period is an absolutely independent process. In principle, the adjudication can make final judgment based on one-time evidence investigation and reply. The reversibility refers to the structure of adjudication, that is, the preparatory procedure and adjudication procedure can be underway alternatively. If it is found that evidences are not enough during the process of adjudication, the preparatory work can be repeated, and then hear the case again.The judicial systems of western countries are precious materials for China to absorb and use for reference in order to reform its traditional judicial system. However, due to the differences in politics, economies, cultural backgrounds and perfection levels of related judicial systems, we must base on China's national condition when transplant judicial resources, and analyze the reasonability of their kernel and complementary rules in order to incorporate them organically in to the reform and improvement of China's litigation system.III evaluation on the present situation of China's Evidence exchange system in pre-trialAt present, the Evidence exchange system in pre-trial of China's civil proceedings can be seen in judicial interpretation and many courts in basic level have had a try in judicial practice, however, there is not yet a stable mode. Since it is in the preliminary period, problems must be discovered correctly by comparing with experiences of advanced countries in order to explore the Evidence exchange system in pre-trial which is in accordance with China's national condition. Major problems exist are: first, the Evidence exchange system in pre-trial is not sound, that is, its rules are not perfect and stipulations on scopes of evidences exchanged and judicial officers who charge evidence exchange and the way of exchange are not clear. What is more, the related provisions are not reasonable and there is lack of feasible institution setting mode. Second, related complementary measures are not completed, which is showed in lack of forcible system of evidence discovery, unsound system of reply and no regulations on the unfavorable results of no reply, and also unsound system of loss of discovery evidence right. These problems severely obstruct the concrete implementation of the Evidence exchange system in pre-trial.Restrictive factors when implementing Evidence exchange system in pre-trial are: first is the deviation of understanding and deficient law awareness, and the result is that one can not jump out the mindset of such a trial mode of"presenting evidence in court"; second, the Evidence exchange system in pre-trial have not yet been systemized and its functions are restricted; third, the restriction of the environment of system implementation. There are certain inadaptable aspects in judicial system, legal environment, political and economic environment and judicial conceptions, which add difficulties to the implementation of system.IV the envision of improving China's Evidence exchange system in pre-trial(I)amplifying the preparatory procedure of the Evidence Exchange in Court The first thing to do is that the application scope of the Evidence exchange system in pre-trial must be clarified and the applicable range and standard of judge should be defined in detail. As to its content, it can take America as a reference, which puts all items relating to controversial focus in to the exchange range, including the facts of procedural law, facts of entity law and information involved in the case and so on. Second, the subject of the Evidence exchange system in pre-trial must be defined and who is in charge of Evidence Exchange in Court. Third, there should be detailed stipulations on the time, frequency, place and mode.(II)clarifying rules in period of Evidence Exchange in CourtIt should be clarified that: firstly, Evidence Exchange in Court can not replace the adjudication procedure. The"degree"must be controlled during the period of Evidence Exchange in Court for fear that it is mixed up with the adjudication procedure. Secondly, there must be strict restrictive stipulations on Evidence Exchange in Court. The right of requesting must be established and mechanisms of discovery and punishment must be mandatory. Thirdly, the implementation procedure of Evidence Exchange in Court must be tightened and specific implementation rules and regulations of Evidence Exchange in Court must be defined clearly.(III) Strengthening the system security of Evidence Exchange in Court.A complementary system with the preparatory procedure as the core must be established through ways that: first, setting up compulsory evidence-obtaining system and legalizing the investigation procedure; second, the system of loss of evidence right should be set up, provisions of"new evidence"should be revised to reduce and strictly define the standard of"new evidence"and make compulsory stipulations on the loss of evidence right; third, the system of loss of reply right should be set up. The reply can not be consider as that the defendant accept the pleading of the plaintiff, which embodies real procedural justice.