The Current And Civil Cross-Examination System Completing In Legislation In Our Country

Cross-examination system is a very important component if civil lawsuit system and a very important means of examining the facts of the case, protecting the lawful right of the clients as well as realizing the judicial justice. After being modified, Civil Lawsuit Law of PRC has set up the lawsuit model like the client doctrine, stressing cross-examination. However, for a long time, due to the lack of procedure as well as rule of cross-examination, the realization of the civil lawsuit goal is affected. Based on this, it is necessary to reflect the civil cross-examination system of China. Seek for the rational and effective track by referring to the foreign legislation and judicial experience to perfect the civil cross-examination system of China. The author looks forward to the attention paid by the theoretical and practical field of China to this issue to perfect the proof system of China.This thesis is about thirty thousand words and is divided into four parts:In the first part, the author discusses the lack of legislation of cross-examination system, mainly including the lack of connotation of cross-examination, legislation lack of set of rule of cross-examination, that of proof cross-examination by the court, that of the conclusion as well as the witness and testimony and that of rule and procedure of cross-examination. The author takes the view that while analyzing the connotation of cross-examination, we should make clear that: (1) cross-examination is served for the examining and judging the evidence and these two are not equal; (2) cross-examination is the acts of the two parties concerned, not the act of the judge; (3) cross-examination is for affecting the affirmation within the heart of judge to achieve that the judge takes the evidence as the gist of the judgment, making the judgment good for one's own; (4) the nature of cross-examination lies in the doubt, that is, interrogating the evidence. This doubt has the quality of the counterview of the two parties concerned. 2. In order to exert the function of cross-examination, the two set rules—providing the proof timely and proof exchange must be perfect and this is the lack of the legislation at present. 3. The proof gained by the court should also been through cross-examination of the clients before being taken as the proof of the case. 4. The cross-examination of judging conclusion should respect the objectivity as well as science. 5. As a grave act, the witness in the court should obey certain rules. While giving the testimony, the witness should swear in the court, promising not to give the false testimony. In addition, the client should be the main interrogator and the judge should be the assistant one. 6. In the procedure and rule of cross-examination, providing proof and cross-examination can not be separated simply by the people into several stages. The reply to cross-examination is not only yes or no, recognized or not recognized. The connotation is to demand the clients to counterview the proof to judge whether the proof has the efficiency and its strength of proof. It can not be assured whether the proof is true or false, whether it is related to the case or whether it is lawful without the interrogation of the two parties concerned. As long as the proof becomes the evidence by means of lawful procedure, it can become the gist of the judge.In the second part, the author illustrates the necessity of the perfection of the present civil cross-examination system in China. The progress of lawsuit procedure is a delicate set. It quarantines the argument in a certain range, forming a"sound insulation space". With the development of the procedure, the participants suffer the restriction from the"past of the procedure"and the result of the system appears. With the participation of the procedure, especially participation of the active cross-examination, the two parties concerned argue about the proof and absorb the irresistible though bad for them facts. They adjust their position and proof, forming a proving cycle in reflection. The fact steps into light in this cycle. The result is bad for one party, but they must recognize the judgment due to the cross-examination set of procedure. The justice of judgment is thus realized. Therefore, the two parties concerned stop the argumentation and recognize the judgment, making the judge justice and effective. This is the function orientation of cross-examination system. The legal principle of cross-examination lies in: it is not only the embodiment of the subjectivity of the lawsuit body and the procedure assurance, good for the effective participation and the production of judgment recognition based on this, but also can release and dull the opposing mood though the result is opposite to the anticipation of the lawsuit; meanwhile, the cross-examination process is the forming process of the proof in the heart of the judge, setting up the justice of the judgment and embodying the efficiency. More important, cross-examination can embody certain deep legal consciousness, which is a reflection of the position of the function.In the third part, the author states the reference of civil cross-examination system. Through the comparative research on cross-examination system of Germany and Japanese law in the Anglo--American law system as well as the civil law system, the author provides the reference for perfection of cross-examination system by associating the state situation of socialism with the means of developing the useful and discarding the useless. The traditional Anglo--American law system applies for the cross-examination of client procedure model and the activity of cross-examination is the activity of the clients. Of course, this kind of model provides the interrogation space as well as the convolution room, resulting in the delaying of the lawsuit. German belongs to the typical civil law system. The lawsuit principle in German is to check and judge the proof freely. The main body examining the proof is the judge. Viewing from nature, the process examining the proof is the process of making judgment for the argument about the fact and forming the evidence in the heart. The court must consider the whole trial process as well as the result of the proof examined to assure that all the issues involved are testified. Another trait of the lawsuit principle of German is to apply the doctrine of proposing the proof at any time. Although the lawsuit law in German regulates that there is a period for examining the proof after the argumentation between the two parties, the clients can propose the proof at any time in the trial in court. This kind of model may result in the issue of sudden judgment. Due to its special historical reason, in 1998, Japan established the new civil lawsuit law with the goal of to make it easy for the citizens to understand and apply to make the lawsuit procedure become a kind of system suitable for the modern society. It absorbs the outstanding outcome of the reform in German with the purpose of reforming the civil lawsuit procedure comprehensively. It modifies the relevant aspects of cross-examination and realizes the unification of effect and fairness in some degree.In the fourth part, the author proposes the assumption of perfection of civil cross-examination system legislation. Firstly, the basic definition of cross-examination must be made in order to construct harmonious cross-examination system centered on this. Secondly, build up the set rules of cross-examination, perfecting the present proof timely and evidence exchange rule, including perfecting the relevant regulation of the proof timely, that is, hope rule of cross-examination can clearly regulates when the clients should starts to provide the proof and when it ends, or the clients should undertake the burden of losing right of the proof. The judge should make full use of this principle, asking the clients to provide the proof before the trial or within the rational period in order to assure the opposite party to have the enough participation time and chance of cross-examination procedure. This can reduce the time and improve the efficiency. The proof exchange system before the trial should be perfect. Before the trial of people's court, the clients should be organized to exchange the kinds of proofs in certain time and place. Through the exchange of the proof, the clients have enough understanding of the proofs provided by the opposite party. In addition, they can have time and chance to check and examine the proofs of the opposite party in order to avoid the situation that in court, they do not know the proof of the opposite party at all. The court gives the clients time to check the proof which saves the judicial resource. The exchange of proof also embodies the demand of procedural justice. Set up the rule that the court has right to survey the proof. Then perfect the cross-examination rule of the two kinds of testimony including the judging result and testimony of witness; finally, further set off cross-examination rule and perfect the cross-examination procedure to make the practical performance of cross-examination obey certain criterion, shown in the supervision of the client and society apparently.