Evidence Of Loss Of The Right And The Relief Mechanism

Evidence is the basis and heart of the civil procedural law .It is not only thereason of the judgment, but also the key element in all the procedure. A matureevidence system is the security for the procedural justice and objective justice. So therevolutionary of evidence law has become the focus of the judicial reform. Being thebeginning of the civil procedure, pretrial is always the hot spot problem discussed byscholars. And proof-losing-right system, which is the vital part of the pretrial, getsmuch attention because it directly influences the validity of the evidences.The establishment of the proof-losing-right system in our country's civil lawsuitis an inevitable choice which can effectively solve the disputes and protect the parties'legal rights. The proof-losing-right system is necessary for procedural justice andprocedural efficiency. So the formulation of the proof-losing-right system has greatsignificance both in concept and in practice.But because the proof-losing-right system set up recently, the comprehensionabout it has to be improved. Although it is necessary to build losing-right system, theresult should not be too strict. Compared with the Civil law system and Common lawsystem, American and German all build their proof-losing-right system by severaljudicial reforms. They gave judges much authority for determining the effect of theevidence. Parties lose their right only when they delay the procedure. In our countrywhen "Regulations on Evidence in Civil Litigations" promulgated by the HighestPeople Court, the principle that "evidence must be raised in proper period" becomesthe main evidence regulation in our country. People are all excited for the change inraising evidence from "any time in litigation" to "proper period in litigation". Theyconcentrate their attention on how to make strict time limitation to the action ofraising evidence for the purpose of efficiency. But there is little attention paid to thedisadvantage of proof-losing-right system itself. In fact, proof-losing-right system is atwo-edged sword. We must balance the justice and efficiency then make a rationalchoice before use it.This article has five parts:In Chapter One, I define the concept of proof-losing-right. Then I set myagreement on building this system based on the procedural value.In Chapter Two, I compare the proof-losing-right system both in Civil Lawsystem and Common Law system. With the transversal comparing method, I find thereasons that cause the great difference between two law systems, making it to beuseful experience for our country.In Chapter Three, reviewing the history of proof-losing-right system of ourcountry, I try to give an objective evaluation. The proof-losing-right system in"Regulations on Evidence in Civil Litigations" has great significance in civilprocedure, but there is still some defects needed to be improved.In Chapter Four, I give some suggestions to complete proof-losing-right systemitself.In Chapter Five, I lay stress to formulating the relief mechanism forproof-losing-right. The problems in practice and the conflicts betweenproof-losing-right and subjective rights of parties, conviction of judges compose thenecessary of relief mechanism. Based on it, I set a relief mechanism;I hope this reliefmechanism can help proof-losing-right system becoming one of the most importantparts for protecting procedural justice and procedural efficiency in civil procedurallaw.