A Study On Evidentiary Agreement System In Civil Litigation

As a sort of litigation agreement, evidentiary agreement (Beweisvertrag) is a fairly new conception in China. It means that both the involved parties in one case, before or during the trial, for the purpose of influencing the judge's fact-ascertaining and processing of the civil procedure, conclude agreements in respect to evidence collection and the ways of putting forward evidence as well as how to make use of the evidence, etc. The author focuses on addressing and discussion the application of the evidentiary agreement both in theory and practicing, hoping that it will be good for the further development of the evidentiary agreement system. The dissertation includes five chapters, the briefing is as follows:The first chapter is about the general introduction of the history and definition of the evidentiary agreement. Dated back to the processing litigation phase in Rome law, the evidentiary agreement had been getting in form. And in nowadays, all sorts of evidentiary agreement can be seen in the major two legal systems in the world. As a sort of the litigation agreement, the evidentiary agreement belongs to the conception of litigation act when considering the intention of getting in an evidentiary agreement and the content and the effects of the agreement comprehensively, which can influence the fact-finding process directly. The second chapter is on the foundation of setting up the evidentiary agreement system. The evidentiary agreement system has its sensibility and feasibility since it accords with civil procedural theory and practice as well as our traditional cultural values. The trend of civil evidentiary agreement has influenced civil procedural theory, relevant legal provisions as well as trailing practices to some extend. In the reform of trial mechanism, these made the study of evidentiary agreement as a necessary choice.The third chapter focuses on the basic principles in evidentiary agreement. Principle of free will, principle of integrity, principle of equity and principle of disposition constitute the principle system on this issue. The first principle emphasizes the parties' free will on getting an agreement. The integrity is the high level principle in civil dispute resolution under the market economy, which great influence the functioning of evidentiary agreement system. The equity guarantees the equal rights and responsibilities in civil litigation. The disposition principle establishes the rights' foundation of bargaining for the evidentiary agreement.The fourth chapter is concerned on the forms and constituting elements of evidentiary agreement. There are various forms of evidentiary agreement, which include agreement on evidence exchanges, agreement with respect to burden of proof, evidentiary means agreement, appraisal agreement, time limit agreement on putting forward the evidence, proofing standard agreement as well as confession agreement, based on which the dissertation get an conclusion of constituting elements, restraining force on parties and judges as well as the basis of the removing of the agreement. In the final part, it analyses the relationship between the evidentiary agreement and the judge's discretion.The fifth chapter discusses some suggestions for perfecting China's evidentiary agreement, including the area of legislation, legal practice, judicial reform and public's recognition for law. This system enables the easier practice, guarantees equal rights and duties. What's more, it helps the judges exercise their authority of trialing the case more objectively and effectively, and at the same time, it is beneficial to the construction of a harmonious litigation order.