Reserch On The Authority Of Judge's Evidence Collection

Finding out the truth is a great support to the judicial fairness, so the collection of evidence seems to be a significant to litigation system. Though the disposal right of the parties is much emphasized in the civil procedure and the burden of proof of the parties is set, it doesn't mean that judge is quite negative in the process of evidence collection. On the contrary, as a mean of truth discovey, that judge collect evidence ex officio is exsited in many codes of civil procedure in lots of countries with different evidence collection patterns, let alone to be the main mean in some countries at the set time. Such a contardiction between the ideal type and the reality institution is a sign of the dissimilar atitudes of the relationship between the judge and the parties in the procedue, while at the same time, the target of the different institutions is quite the same, that is, finding out the truth and realizing the justice.We can get aware of the thought of transform through reviewing the development of the institution of judge collecting evidence ex officio since the establishment of PPC, that is, changing from the model that the judge play a significant role in the evidence collection to one that almost every evidence is provided by the parties. Some code about the evidence of civil procedure" issued by the Supreme Court in the December 2001 is quite an example of the change. After such a provision, the model of evidence collection of our courntry had completed the transform. While, the opinion of many jurist is to strengthen the evidence provide duty of the parties, and the same time, to abolish the power of judge in this territory, so as to attain the target of party-control model in grain.To change doesn't mean to follow, while it needs cautious determination. The institution of judge collect evidence ex officio definites the role of judge in the process of getting the truth, also embodies the pursuing of substantive justice. In the specific procedure, the power of judge guarantees the right exercise of the principle of free proof, also it safegurads the rights and interests without the disposal of the parties. In a sense, it covers up the shortage of the adversary proceedings. However it is not to be neglected that the judge's power of collecting evidence, just as criticized, may causes some problem to the neutral position of the judge in the court. As a consequence, such a power should be restricted in the respect of subject, extent and the admissibility of the evidence collected so as to realize the combination of the target and the mean, the duty and the power of the institution.