The Research Of Difficulties Presenting Evidence In Lawsuit Divorce Damage Compensation

It is a widespread phenomenon that the burden of proof is very difficult in the divorce action for damages, resulting in the divorce action for damages because of"marital infidelity". Although the Civil Procedure Law provides for seven classification of evidence including documentary evidence, material evidence, audio-visual reference material, testimony of witnesses, statements of the parties, expert conclusions and records of inquests, some of the above mentioned evidence do not usually apply to the divorce action because of"marital infidelity"and the damages raised under the general circumstances, such as expert conclusions, records of inquests and testimony of witnesses which are not easy to obtain. And it is extremely rare that the default parties would take the initiative to acknowledge their faults. In this way, there are only documentary evidence, material evidence and audio-visual reference material which are powerful evidence to prove the fault of the default party. However, as for these types of evidence, the parties usually are required to find by themselves in the Civil Procedure Law. The concealment of the extramarital affairs, the parties'weak awareness of evidence and the limited methods of evidence collection, usually lead the innocent party cannot provide sufficient evidence so that the sure win case lost at the end. The principle of protecting the innocent party's legitimate rights by law becomes void. In addition, although the law stipulates the effective forms of evidence, the law does not allow the evidence obtained through illegal means. In accordance with the principle of Civil Procedure Law, the method of evidence collection shall be legitimate. And the evidence obtained through illegal means should not have probative force. In this way, the evidence for a divorce action because of marital infidelity is difficult to obtain, while the rules of the evidence has ruled out some of the illegal evidence so that the evidence obtained by the innocent party through illegal means has been ruled out and thus the innocent party lost the case, although such evidences are true or at least some of the them are true.Based on the above mentioned difficulty in the burden of proof in judicial practice, this paper will focus on the analysis and research of the burden of proof and the evidence collection angles on the basis of the summary and detailed analysis of the main reasons of the difficulty in the burden of proof. First of all, with regard to the burden of proof, the author analyze the four aspects including the establishment of the standard of advantages of proven, the adjustment of burden of proof, the strengthening of guidance on the burden of proof and the expansion of the judges'discretionary power, so as to appropriately and reasonably reduce the innocent party's burden of proof. Secondly, as for the evidence collection, this paper will discuss in the four aspects of the ruling out and recording of audio-visual material in private, the court's investigation and evidence collection in the appropriate situations, the standardization of evidence collection of the civil investigation industry and the parties'firm awareness of evidence, so as to clarify the legitimate means for evidence collection. Finally, the author will think in the law-making standpoint and expect to reduce the innocent party's burden of proof and confer the legitimate means to the parties in the evidence collection through law-making or judicial interpretation, so that the innocent party is able to prove reasonably, legitimately, timely and effectively; the difficult problems of burden of proof in the divorce action for damages will be gradually eased and finally solved; and ultimately the default party will be punished and the innocent party's legitimate rights will be guaranteed.