On The Pre-trial Evidence-exchange System Of Civil Procedure

Civil Evidence system is a core part of the civil litigation system, the reform in this part would inevitably lead to comprehensive changes in trial mode. With the progress of the judicial reform, procedural justice has been widely accepted,in order to overcome the shortage which is brought by the trial method of "step to appear in court" and achieve procedural justice,the exchange of evidence before the court system was pushed onto the stage of history. It can be said that the exchange of evidence before the court system to achieve a certain degree of procedural justice.The exchange of evidence before the court is a system which organizes by the court before the hearing and exchanges of evidence automatically with each other to know the evidence of each other in the time agreed by the parties or specified by the court. The exchange of evidence before the court system itself embodies fairness and efficiency. However, the exchange of evidence before the court system in China was based on the foreign experience, the legal systems and human environment both in Chinese and abroad have great differences, how to reasonably refer to the foreign exchange of evidence before the court system and make it "localized" are the things that we need to ponder. Courts all over the country have begun to explore, the supreme court issued the "rules of evidence" which established the exchange of evidence before the court system though the judicial interpretation. But the content of the exchange of evidence before the court system in " rules of evidence " is not specific enough which makes the approach in practice varied. The exchange of evidence before the court system can make the points of the dispute definite, prevent the surprise attack, promote the reconciliation of the case, conserve judicial resources. This paper contains the concept, history, value, function and several related concepts of the exchange of evidence before the court system, reviews the development process of the exchange of evidence before the court system in China and the exploration of the courts around in the judicial practice, analyses the operation Status of the exchange of evidence before the court system in our country, then presents the concept to perfect this system.Besides the introduction and the conclusion, the paper has three parts:The first part, the basic theory of the exchange of evidence before the court system. The exchange of evidence before the court system is the core system of the civil pretrial arrangement procedure,and is also the achievement of the civil pretrial arrangement reform. This section describes the content, history, value and function of the exchange of evidence before the court system, and introduces the correlation of this system with the pre-trial procedures, evidence collection, proof time, the explain right of the judge and mediation system. The exchange of evidence before the court system is an important part of the pretrial proceedings, in the exchange evidence before the court, some parties' claims are undefined, inadequate or inappropriate, the Court put questions to the parties with authority and urge the parties for further evidence to prompt to identify the truth of the case. In the exchange of evidence before the court process, as both parties understand each other's evidence, they have a clear understanding of the winning probability, so in this case the parties are willing to end the proceeding by mediation under the court, it can not only save much manpower of the parties , material resources, but also in favor of the social harmony.The second part, the development of the exchange of evidence before the court system. Using historical analysis, it recalled the development process of the exchange of evidence before the court system in our country. From the "Trial of the Seminar on the National Economy" to "Rules of Evidence", the exchange of evidence before the court system from the initial involving the specific application, shows that this system has gradually been adopted by us. Using the empirical analysis method to summarize the research by the courts on the exchange of evidence before the court system. Such as the Shanghai Higher People's Court issued the "Economic Litigation Rules of Evidence" (Trial) which has a bright spot "pay the piper", while Yunnan Kunming Intermediate People's Court issued the "Civil Procedure Rules of Evidence" in which the most unique places " is "the exchange of evidence before the court begin with application by one party". On the base of summarizing the exchange of evidence before the court system, it commented the current situation of this system. The reasons are: on the one hand, the exchange of evidence before the court system produced and developed under the adversary model,but the litigation pattern in our country is always authority principle, so there is no soil for its survival. On the other hand, the exchange of evidence before the court system has not been established in legislation, so that it can not perform its function.The third part, the concept of perfecting the exchange of evidence before the court system. Firstly, it introduces the inspiration that the exchange of evidence before the court system give us . For example, the scope the exchange of evidence before the court system is abroad,and what is about the sanction measures when violate the system Etc. There is reference value for the development of the exchange of evidence before the court system. Certainly, the part that we learn from the United States should adapt to China's national conditions. Secondly, put forward a way that could perfect the specific operation of the exchange of evidence before the court system. As for the scope of the exchange of evidence before the court should be expanded, namely, the evidence all which do not relate to the State secrets, personal privacy, court orders ought to contains in the range of the exchange of evidence before the court. The moderator should be not the judge of the case in the exchange of evidence before the court process, but the assistant judge could have a try. Finally, put forward a proposal to the establishment of the exchange of evidence before the court system. It has to improve the relevant system if people want to obtain the desired effect of the the exchange of evidence before the court. for example, the pre-trial conference system, evidence invalidity and loss of the right of reply system should be built, and the party evidence collection system and the sanctions measures should be improved Etc. These relevant systems are the preconditions or the guarantees of the exchange of evidence before the court system. Only to improve the relevant systems, the exchange of evidence before the court system could operate in practice authentically.As an offspring in the common law countries, the exchange of evidence before the court system an important role on evidence collection, evidence order, protection of the rights of the parties. The actual situation in our country should be analyzed on the base of learning the referential experience from the abroad, and "the exchange of evidence before the court system" should be established in the ",Civil Lawas early as possible. Standard should be unified and the authority of the law should be enhanced. The relevant systems should be improved so that they will run harmoniously with the exchange of evidence before the court system.