On The Right Of Investigation And Evidence Of The Parties Of Civil Procedure

The right to investigate and obtain evidences of civil litigants means those rights that civil litigants have to invest, gather and confirm evidences related to the litigation in the litigious process. Since it is the prerequisite and foundation for the litigants to assume the burden of proof, the right to investigate and obtain evidences should be entitled to the civil litigants to fulfill their burden of proof. Stipulations in the Civil Procedure Law concerning the right to investigate and obtain evidences of civil litigants have changed with the reform and development of the system of civil litigation especially the system of evidence in our country, and they have also been strengthened with the strengthening process for the system of burden of proof. There have been three phases for the process: the phase of no right, the phase of defining right and the phase of strengthening right. The most prominent problem concerning the right to investigate and obtain evidences of civil litigants now is the lack of systematic safeguard for the exertion of the right. Although it is definitely stipulated in article 50 and article 61 of the Civil Procedural Law that litigants and his agents have the right to investigate and gather evidences, there are no according stipulations in the Civil Procedural Law and other laws in force about the procedure and the punishments on how to exercise the right and how to get rid of the obstacles when exercising the right .In judicial practice, it is difficult for litigants to investigate and gather evidence, especially to obtain evidence materials from the other parties and the third party outside proceedings and when proposed witness can not appear in court for various reasons. To perfect the system of the right to investigate and obtain evidences of civil litigants, we should learn and lend successful experiences and measures abroad and combine them with actual situations in our country. I put forward three measures. The first is to perfect the rule of disclosure of evidence, stipulate the system of record of inquiries and document of address questions additionally, entitle the litigants to apply to the court for the other party to bring forth and provide related evidence. The second is to push the system of writ of inquiry to safeguard the rights of the litigants to investigate and obtain evidences from the thirdparty outside the proceedings. The system of writ of inquiry should be concretely designed and stipulate in law to define such things as the subject and condition of the applicants, the reviewing and issuing procedure, the requirements for obtaining evidences, and the legal consequence for breaching of the writ. Furthermore, we should perfect measures forming a complete set with the system, deal with the relations between investigations carried out through the writ of inquiries and those by judge according to his authority, strengthen propaganda and coordination of the system to ensure its running smoothly. The third measure to perfect the mechanism for the witness to appear in court to safeguard the realization of the right of applying the witness to appear in court owned by the litigants .At the same time, we should define the scope of circumstances under which the witness can be allowed not to appear in court to prevent him from refusing to do so in excuse of special circumstance, to change the way of informing the witness to appear in court and strengthen the witness of his consciousness of duty and responsibility. If a witness refuses to appear in court without justified reasons, he will be punished for obstructing civil proceedings and will be reprimanded, constrained, imposed of a fine or detained according to the seriousness and if the act constitutes a crime, the offender shall be investigated for criminal responsibility according to law. We should also perfect the measures to protect the witness from economic losses because of appearing in court, safeguard the witness for the security of his personality and property, establish the system of protecting witness by defining the organ to protect, detailing the procedure and measures and crack down seriously on actions of making vindicative attacks on or injuring witnesses and their near relatives, and stipulate definitely the privilege of refusing to testify, with which those witnesses who have certain domestic or employment relations with the parties in the litigation may refuse to appear in court.