Font Size: a A A

Civil Action In The "new Evidence" Problem

Posted on:2008-12-02Degree:MasterType:Thesis
Country:ChinaCandidate:X X ZhangFull Text:PDF
GTID:2206360215996668Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In the process of the civil action in China, it is very common that the litigant puts forward "new evidence". However, there isn't the term of "new evidence" in the lawsuit system in the early times of human society. The existence of "new evidence" experiences a long changing process in the civil action system. Substantive justice, procedure justice, lawsuit efficiency and procedure stability are the goals of value that the civil action seeks. "New evidence" is the result that the goals of value interact each other. It accords with the legal tradition that the people prefer substantive justice in China. And the present law as well as judicial explanation gives explanatory notes about its reasonable existence. Through the investigation of the related laws outside the country, we can find that whether Chinese legal system or English & American legal system leaves the space of existence for "new evidence" to some extent. Horizontal comparison shows that finding substantive truth and defending substantive rights are the goals of value that the civil action system makes efforts to achieve in every countries. In China, we can't easily give up seeking the substantive truth while establishing the rule of "new evidence". And the acceptance degree of the "new evidence" is different in different countries, mainly because their legal tradition, lawsuit idea, trial model etc are very different. So we can't just copy the foreign system, we should completely consider our national condition.The present civil action law adopts the method that the evidence can be given at any time, which causes some problems: it affects the conducting of questioning witnesses and trail in court; makes it convenient for the litigant to abuse the rights of carrying out procedure policies; and damages the stability of trial and procedure. Several Provisions About Evidence of The Civil Action announced by The Supreme People's Court makes up the mentioned deficiencies to a certain extent, but its limitations are obviously: it breaks through the principles of the civil action and lacks auxiliary system etc. Currently, it is essential to establish the rule of "new evidence" in our civil action system, which will improve and develop our civil evidence system; standardize the measure of judgment and maintain the unity of judicature; restrain judicial corruption and keep judicial justice; and urge the litigant to provide the evidence in time. Meanwhile, the establishment of the rule of "new evidence" is practicable.The general idea of establishing the rule of "new evidence" is that we must seek the objective truth and achieve the substantive justice first, then give consideration to both efficiency and justice. However, the "new evidence" is not isolate which needs the auxiliary system to help it carry out. Consequently, it is necessary to reinforce the clear power of the judge, establish the system of the right of losing effect of defense; improve the preparation procedure before the trial, and establish the system of the obligatory acting of the lawyer and the legal aid. The detail rules of the "new evidence" include: the style which means the rule of "new evidence" should adopt the method of elimination and listing; the "new evidence" includes three kinds of evidence---first trial evidence, second trial evidence and the new evidence that can be regarded as. Based on the consideration of increasing the lawsuit efficiency and keeping the stability of the procedure, the retrial "new evidence" is ruled out; the litigant has the right of counter-pleading during the allowed time limit, and the one giving the new evidence should prove the evidence. The fee that the litigant pays is different according to the reason of giving the evidence beyond the time limit, which is divided into two kinds--objective reason and the negligence of the litigant. The litigant should pay the additional fee of the other side in the former situation; but in the latter situation, in addition to this, the litigant must pay 50%-100% of the mentioned fee as the compensation for the increasing; expense.
Keywords/Search Tags:the civil action, evidence, new evidence, rule
PDF Full Text Request
Related items