Discussing On The System Of Evidence Collection By The Parties In Civil Procedure

As a further deepening of Chinese judicial reform of the civil trial, the burden of proof of the parties has been emphasized, but the rights of the evidence collection has been ineffectively protected. The strengthen of the burden of proof and the lag of taking proof are in sharp contrast. It is critical to establish a protective system, which revolves around the effort of the evidence collection that mainly conducted by the parties, to protecting the exercise of their right of action. Such system confers the parties various methods and resorts to collect evidence. Another significant demand for such protection rests on a regulation of the judicial behavior of evidence collection under special conditions, excluding any obstruction that might hampering the parties' right of gathering evidence. Both the mechanism and the regulation work as a safeguard of due process and efficiency. and with them a substantive due process must be implemented as possible as it could be.Based on this, the subject of the article is to study the procedural guarantee of the right of collecting evidence for the civil action parties, start with the basis of legal principle and the value analysis of the system of collecting evidence, research the foreign procedural guarantee, as well as analyses the legislative regulation and operation in Chinese current evidence collecting system, and conceive a plan on how to perfect it: parties' collecting evidence as primary, and the court's support for evidence collection as a assistant. The article is composed by five sections:Section 1: Introduction. Start with the importance of Civil Evidence in the modern civil proceedings, educe the necessity of the procedural guarantee for the party to collect evidence in our country currently, and introduce the thinking of this article.Section 2: The basic theory of the system of the party to collect evidence .Simply summarize the system of evidence collecting in civil action, introduce the theory of the system of the evidence collection, which is based on adversary system, and analyze the value of the evidence collection in procedural justice and procedural interest.Section 3: Investigate and consult the foreign system of evidence collection. Introduce the system of evidence collection of the USA, Germany and Japan, from which we can see: although there are many differences between China and other country in evidence collection, they are all based on adversary system, dominated by the party, the count remain neutral and guarantee the right of evidence collection.Section 4: Historical evolution and present situation analysis of the evidence collection system of China. Introduce the legislative development of evidence collection in three period: Civil Procedural Law (trying out), Civil Procedural Law, Civil Procedural Evidence rules 2001. Analyze the advancement and limitation of legislation, investigate the difficulty of evidence collection in practice and analyze the reason.Section 5: Perfect the system of evidence collection. First, how to choose and establish the system mode of evidence collection ought to adapt to the situation of our country. The author suggests the evidence collection system should be dominated by the party, assisted by the judge. Second, give some suggestion on how to perfect the system of evidence collection: establish the procedural guarantee to protect the right of evidence collection and regulate the investigation and obtaining evidence.