On The Hague Forensics Convention Applicable In China

Taking evidence abroad for civil or commercial purposes is an important legal procedure with State-sovereignty involved,because taking of evidence occurs in another State's territory and the result of taking of evidence will directly or indirectly determine the result of the law suits.Further more,different States have different legislations on taking evidences, which make the taking of evidence abroad hard to be implemented.Therefore,comes the international assistance in the taking of evidence abroad for civil or commercial purposes.The most important cooperation among States in the world is the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters(the "Hague Convention" or the "Convention") signed and effective in 1970.The Convention consists of 3 chapters and 42 articles,stipulating detailed requirements and procedures of indirect taking of evidence(by letters of request) and direct taking of evidence(by diplomatic officers,consular agents and commissioners).However,the Convention doesn't clarify issues of its application in member States,such as the domain of evidence,the domain of civil and commercial issues,and if the Convention is exclusively applied.This paper analyzes the issues of application of the Convention in member States,especially in China,and upon which comes up with suggestions and proposals to further help the application of the Convention in China as well as the improvement of China's legislation in taking of evidence abroad.This paper consists of 5 chapters,in which:ChapterⅠoffers the definition and legal status of taking evidence abroad,analyzes the relationship between taking evidence abroad and the State sovereignty,and upon which puts forward the proposal of diluting the idea of State sovereignty to improve international communications and co operations in the environment of globalization.This chapter then lists the legal sources of taking evidence abroad.ChapterⅡsummarizes the background and contents of the Convention,and introduces in detail the ways,procedures and requirements of taking evidence abroad stipulated by the Convention.This chapter then describes the application of the Convention in the member States and the declarations by the member States. ChapterⅢdeals with normal issues of the Convention's application in member States.The Permanent Bureau of the Convention has held 5 Special Committees to settle down issues and has made great achievements.ChapterⅣdetails the two special problems in the Convention's application:the conflict between the discovery procedure of the USA and the civil procedures of European nations, and if the Convention is exclusively applied.Neither of the two problems has been solved thus far.ChapterⅤanalyzes the application of the Convention in China.China has precedents of accepting foreign State's direct taking evidence in China but now the declaration to apply the Convention has greatly narrowed the application of taking evidence directly.Upon this, comes the suggestions and proposals to further help the application of the Convention in China as well as the improvement of China's legislation in taking evidence abroad.