Explore On Civil Perpetuation Of Evidence

Civil perpetuation of evidence is a procedure of investigating evidence which is played by the court before the case's procedure of investigating evidence starts.Its function is perpetuating evidence, confirming the facts, discovering the evidence, contributing to settle the dispute not by litigating.This system not only safeguards and realizes the right of collection and provision of evidence for the agent,and ensures that the court which has jurisdiction make an impartial judge; and also has benefit to get a alternative settlement to the civil dispute.Most countries'civil procedure law of civil law recognize the system of Civil perpetuation of evidence plays an important role in avoiding or resolving disputes, and stipulates the types of perpetuation of evidence,the applicable procedure, the effectiveness clearly. As our country's basic procedure Law, Civil Procedure law stipulates the perpetuation of evidence just by a single provision, and is about the perpetuation of evidence in the proceeding. At the same time, it doesn't stipulate the perpetuation of evidence before the proceeding starts by any of the provisions, and its provisions are too simple to put them into practice. In recent years, our country has added the perpetuation of evidence before the proceeding in the "Special Procedure Law of the Marine litigation", some related intellectual property laws and the judicial interpretation. And they have also stipulated the procedure of the perpetuation of evidence to some extent. Thus they have enriched the system of perpetuation of evidence. But there is disadvantage of the present system, for example, there is no convincing law for applying the system of perpetuation of evidence before the proceeding starts to the ordinary civil and commercial cases.The function of our country's perpetuation of evidence is too sole to give full impact on confirming the facts and contributing to settle the dispute not by litigating in the modern civil procedure; The court doesn't value the agent's procedural rights in the procedure of perpetuation of evidence.The disadvantage of the present system of perpetuation of evidence will impact on the civil trial to make a correct judge and the procedural and objective interests of the parties.So this article attempts to research the system of perpetuation of evidence, and restructure our country's system of perpetuation of evidence on the basis of referring to extraterritorial general clauses to meet the double demand of improving the legislation and promoting the practice.