International Civil Evidence Outside Review Finds

Evidence is a core issue of trial in civil litigation, and only when it is clear and definite can an evidence seemed as a basic fact of a case, and help the judges to identify the facts and clarify the legal relationship thus make a final decision of the case. Because of the existence of foreign legal relationship in the international civil litigation, in order to make prove the legal relationship, which is sometimes in abroad, much evidence abroad is needed. From a wider perspective, even the identification of the litigants can be seen as a kind of evidence, so the evidence abroad in international civil litigation is ubiquitous, which makes it even more crucial. Based on the particularity of the evidence abroad, the judges have to identify and select the real evidence from all the materials handed by litigants and choose the ones that can be rely on to the final judgment. This process of the job is called examination and assumption of evidence abroad.Because of the nature of international of the evidence abroad, nations make the evidence rules different from each other, and along the lines of the logic of from the subject of gathering evidence, to the ways of gathering them, till the standard of assumption and examination of evidence abroad, every nation has their own special way of legislative and judicial practice. Gathering evidence is an issue which cannot be avoided in examination and assumption of evidence abroad, because the logic line is a coherent one. On the issue of gathering evidence abroad, although there are still many arguments over these questions above among most nations, the variety of bilateral treaties and international conventions , such as the 1970 Hague Evidence Convention and many regional conventions over the issue of evidence abroad make this problem reasonable. The concept and skills of legislation of these conventions along with the solution of the examination and assumption of evidence abroad is the things worthy studying.This article gives a theoretical discussion on the issues of legal conflict of the evidence rules, trying to use the ancient conflict rules in international private law to solve this problem as the subsidiary of all the international conventions. Because the conventions are relatively closed and many parties have made conservation when they joined the treaties, and because the conventions seem helpless faced on the new conditions in practice, this article discuss the possibility and feasibility of solving the problems bravely.The legislation and judicial practice of our nation started late comparative to the western nations, so the assumption and examination of evidence abroad is relatively not mature. The shortcomings of legislation practice includes the vague of basic concept, and the rigid and unclear of the rules. Because of the shortcomings of legislation, the judicial practice of our nation staged on a relative closed state, which called the evidence abroad to go through a process of notarization and attestation strictly, which ignores the specific situation of a case. At the end of this article, the writer make a opinion of consummating the relevant rules from the aspect of cooperation of nations, improve the system and details of legislation, and renew the judicial practice, hoping can make help on giving a systemic analysis and a fresh angle of view on the examination and assumption of evidence abroad.