Research On Control Theory Of Covil Proof Losing-Right

There were two stages experience of proof put forward and proof to limit at any time in our country,《proof provision》which promulgated in 2001 offered as proof term to the party, exceed the time limit to offer as proof of result, devised the explicit provision. The establishment of this system is indeed a great deal to improve the efficiency of proceeding, academic theory on the direction of mostly adopted an affirmative attitude. But because of the Proof Losing-right System is just build up in our country, it is hard to avoid that there are various difficulties and obstacle in the theories and the fulfillment, especially the negative effect of the strict Proof Losing-right have already present, it restricted the realization of the party concerned entity rights in a certain extend. The resistance of this system have fallen cross in the implement outstanding performance is, because of lacking the guarantee of the constitution and organic law level in court and there were no occasion for the assistance integration to follow, some courts and judge did not have enough confidence towards applying Proof Losing-right, and this system is hard to have the function for fixing proof. Such as, the cognizance of the court for new proof, the judge usually would control from the breadth is because of worrying the case to be change to judge. The overdue proof Losing-right caused the law fact with objective deviating from making factually and the party concerned long-term suit and tie up, the judicial candor is facing proof. The regulation rule had already lost the meaning and the value that exist. Therefore, on a further research of proof Losing-right system to take it in to reform, and to find appropriate mechanisms to carry out relief and improve the supplement is of practical significanceTaking a wide view of extra-territorial legislation circumstance in other countries, because of the historical tradition of the litigation culture, the way of the trial and judicial reform of the value side have different characteristics and development track, the using of proof Losing-right in specific have much different in countries. However the proof Losing-right of these countries in the direction of the legislative system has more or less from not Losing-right to Losing-right, From the evidence submitted in a timely manner at any time to put the course of development, evidence and the legal consequences of missing the right side of the application and also show some broad, but the new evidence are more stringent, as the only exceptions to the application. Two Legal compared with the country Losing-right to the evidence, the statute of limitations in the loss of the right side and the Western States provides most of the considerable room for flexibility to the discretion of the judge only when the parties to delay proceedings to the detriment of the other side, only applies to Extremely rigorous evidence of the right to lose. Germany in particular, the court may permit freedom of heart that will not delay the end of the proceedings or the party explanation as a result of non-fault overdue, should be allowed to consider evidence submitted by the party late, the party's reason for the exemption to"explanation". These measures to ease the loss of the right to find evidence of real cases and the negative effects brought about. In addition, the evidence of Germany's Losing-right of the party system in order to"legitimate right to a hearing"to control its measures. We can learn from the civil law countries, especially the constitutionality control for the elements and strict interpretation in Germany. The parties should be given to the full equality of the procedural safeguards under the goal of improving the function of the time limit proof system to improve related measures such as: the right to judge next release, the pre-trial procedures, such as security, Proof Losing-right as a reasonable exception to the provisions of transformation.This article is divided into nine partsThe first chapter missing from the evidence on the concept of the right to procedural law on the origins of evidence-based system in our country Losing-right to civil litigation system will definitely be established. And evidence of the right to lose its basic elements and associated with the concept for the Analysis of the relationship.The second chapter analyzed on the evidence from the loss of the right to a positive value system, including due process, the obligation to promote litigation, the parties to promote reconciliation, stability and procedures in five areas.The third chapter compared the loss of evidence in other countries outside of the right of its legislative status, and to identify differences in the deep-seated reasons for the Two Legal comparison for the research methods and strive for the missing evidence of China's reform and the right to build a useful reference.The forth Chapter of this article for the bright spot lies on the missing evidence in the German constitutional right level of protection to the party's"legitimate right to a hearing"to its control measures, not only in loss of the right elements to carry out stringent requirements The Constitutional Court has the ultimate safeguards, which led to the loss of our right to evidence provided inspiration.The fifth Chapter expatiated the judge to clarify the obligations set out in the missing evidence of the right to the important role of the system, from the legitimate right to a hearing on the request of the judge to clarify the obligations based on clear definition of the scope of the judge and improper exercise of the right to clarify the consequences of the relief discussed.The sixth Chapter advanced the evidence clearly Losing-right environment for the operation of the system-pre-trial procedure, from pre-trial procedures for finishing point and fixed-function on the basis of the evidence put forward by the parties and the court proceedings there are obligations to promote and lost power and efficiency The promotion of legal obligations to prevent a surprise attack of the relationship of the refereeThe seventh chapter advanced the raising questions of the current legislation of the new evidence, and"new evidence"should be regulate, avoiding the parties to use of its broad requirement for evidence of surprise attack.The eighth chapter analyzed the Civil Evidence of China's Losing-right system of the status and the reasons, and reflected on the Losing-right to present evidence to the judicial system of the situation and come to Losing-right to the evidence is too strict in our country, it is lacking legitimacy.The ninth chapter focuses on the evidence of Losing-right to transform the system. In order to clarify the judge's obligation to prove that the degree of division, redefining the elements, missing the right point of failure for the system to build the foundation and support in order to complete the pre-trial procedures, diversification of relief measures, to expect the Proof Losing-right system to maximize the value and effectiveness.