On The Scope Of New Evidence In Civil Procedure Of China

The phenomenon of disorder legislation and non-uniform practice in the scope of our new evidence lead to reducing the prospective ending of the case and increasing the confusing use of new evidence. In order to overcome these drawbacks, we should study factors to the scope of new evidence and determine the reasonable scope.Because new evidence is considered as a type of late attacking and defending methods, so we can analysis the scope of new evidence through the three principles of stage, adequacy and equality of attacking and defending methods. Under the study of the scope of new evidence of United States and Japan, we can analysis the scope of new evidence what we should choose, combined with legislative and judicial status of our new evidence, and using the above analysis. Based on the above analysis, we can conclude which type of new evidence should be contained in our country and put forward to the related systems.Preface and postscript apart, this article fall into six parts, stated briefly as follows:Part I: Sum up the concept and classification of new evidence. New evidence is the material or evidence that the parties does not provide to the court and influence on founding the facts or judging the case before deadline of limitation of production of evidence or original trial. According to the cause, the new evidence can be classified into the new evidence produced by time, by objective reasons, and by subjective reasons. The new evidence produced by time is the material produced after deadline of limitation of production of evidence or original trial. The new evidence produced by objective reasons is the material not provided to the court because of objective reasons before deadline of limitation of production of evidence or original trial. The new evidence produced by subjective reasons is the material not provided to the court because of subjective reasons before deadline of limitation of production of evidence or original trial.Part II: Introduce the theoretical framework of anglicizing the scope of new evidence. Because the new evidence is considered as a type of late attacking and defending methods, so we can analysis the scope of new evidence through the three principles of stage, adequacy and equality of attacking and defending methods. The stage refers to the application of the preparation procedures. Not application and the strict application of the preparation process is to determine the two extremes of the scope of new evidence. Between these two extremes, the more strict application of the preparation process, the smaller the scope of new evidence. The contrary is the greater. Sufficiency and reciprocity refer to the result and the process of the evidence collection. Under the premise established in the stage, the more sufficient and the more equal of the evidence collection, the wider the scope of new evidence. The contrary is the greater.Part III: Investigate the scope of new evidence of extraterritorial law by The United States and Japan. The United States strictly limit the emergence of new evidence, because it has the strict two-phase structure of the procedure, as well as the well-established protection of the adequacy and equal of evidence collection. The emergence of Japan's new evidence is relatively loose, with the lack demand of Japan's strict two-phase structure, as well as some restriction on the adequacy and the equality of evidence.Part IV: Introduce our legislative and judicial status of the scope of new evidence. The legislation (including judicial interpretation) refers to different levels, and judicial practice is also confused. The scope of new evidence is the widest in"Civil Law"and the narrowest in"rules of evidence". Since the implementation of the"rules of evidence", the confused scope of new evidence has gone through a narrow to wide process in judicial practice.Part V: Analysis our scope of new evidence. Our preparation procedures and court procedures are not strictly divided, with higher tolerance for the new evidence. In addition, because the requirement of preparation procedure time (the limitation of production of evidence) is unreasonable, and the evidence collection, the evidence exchange and the interpretation by judges is lacked, so these is not conducive to the adequacy and the equality of our evidence collection. In the absence of strict two-phase trial structure, the more incomplete of the adequacy and the equality, the wider scope of new evidence. Therefore, we should be a wider range of new evidence, at least wider than Japan.Part VI: Define the specific scope of our new evidence and put forward to the related systems. The scope of our new evidence at least includes the new evidence produced by time, the new evidence produced by objective reasons, and the new evidence produced by general fault. The new evidence produced by willful misconduct or gross negligence should be analyzed separately. This paper argues that the new evidence should be recognized firstly, also including the new evidence produced by willful misconduct or gross negligence, unless the other party's allegation. The counter-argument is only limited to the new evidence produced by willful misconduct or gross negligence. Disagreeing new evidence by one party, the other can still use as those reason to refute, such as not explain by the judge, or not collected evidence by the objective factors, or not identify the true circumstances of the case without this evidence, or the efficiency of sub-impact litigation with this evidence, etc. And to combine the cost of sanctions and procedural safeguards is to protect the implementation of the scope of new evidence.