On The Procedural Safeguards Of The Parties' Rights To Gather Evidence

Evidence is the premise that parties can get their fair judge. And only by protect litigants'rights on collecting evidence can we ensure that the trial is fair in procedural and substantive. Although the Civil Procedural law strengthen burden of proof of the party, it has not stipulated how to protect the rights for litigants on investing and collecting of evidence, which is unfavorable for the development of the law itself but also the protection for the legitimate rights on collecting evidence relevant to the case in hand. With such a tremendous flaw in the Civil Procedural law of The People's Republic of China, the litigants cannot effectively collect evidences, which not only deceases the efficiency of the proceedings, but also hinders the reform of civil procedures. Therefore it is of great theoretical and practical significances to safeguard the rights of party to collect evidence. This paper is divided into the following sections:Introduction: starting with the importance of evidence-collection on the trial and pointing out the shortage of prescribing rights of evidence-collection procedural safeguards in our civil procedure law and the impact on the party.Part I: introducing and giving comments on our country's evidence-collection system from two aspects: present legislation , practice, pointing out as the parties lack of procedural safeguards in the law that leads the party gather evidence difficulty in practice. This section specifically describes the performance of the parties who collect evidence difficulty, analyzes the reasons for its formation and thus leads to the importance in protecting the rights of the parties to gather evidence.Part II: Introducing evidence-collect mode in the Common Law system and the Civil Law system. the Common Law system of evidence-collect model is the mode that the party dominate evidence-gathering , the body of investigating evidence is the parties and legal representatives, not judges,The duty of the judge is to safeguard trial 's order, not to discover the truth of facts of the case.The evidence model in Civil law is the model that the judge mainly dominates evidence-gathering surveys, characterized by emphasizing on the activities of the judge's which can command and control the proceedings, the court holds the initiative whether in the trial court or in the activities of gathering evidence. The establishment of any type of litigation is revellent with the country's social and cultural background . In this section,it mainly introduces the United States, Germany and other countries' mode ,then analyse the meaning of protecting the rights of parties to collect evidence.Part III: Discussing the rights of the parties to collect evidence from two aspects: function, value , then make a conclusion that it is necessary to guarantee the rights to the parties who collect evidence .Part IV: Constructing the rights of the partieswho have the procedural safeguards to gather evidences. This is the focus and also innovative point. Building the procedural safeguards of the rights of party to gather evidence mainly from two aspects:the system design, mechanisms . System design includes interchangeable prepare pleadings, documents submitted command system and procedures for collecting witness testimony ,on the other party statements and evidence collection procedures and so on。Mechanism of protection includes the legal aid system, accountability mechanisms , the protection of the rights of witnesses mechanism and so on. With the design of these systems and mechanisms and connecting with the external environment that affect our parties' the right to collect evidence to ensure the rights of the parties to collect evidence to be implemented.Conclusion: Making a brief analysis of the conditions that the procedural safeguards for the rights of the parties to gather evidence operation needs , and further indicating the intention of the author's writing.