On The Contract Of Civil Evidence

"Evidence contract" is mainland civil procedural law in the theory of a concept, in Germany, its experienced from sure to deny to certain development process. And now, on the our country civil litigation theory, scholars generally thought of civil action should be implanted "contract" concept, procedural contract this concept has been universally acknowledged. "Contract" as evidence contract concept in evidence in civil proceedings, also the embodiment of the field by the attention of scholars gradually, but there's little evidence of systematic theoretical results, contract of the basic theory of evidence contract problem still exists great controversy. Therefore, there are two aspects to contract research evidence of meaning: one is the system of basic theory of comb evidence contract, on the evidence of contract nature, constitutive requirements connotation, and the effectiveness of such issues were discussed; it is based on the evidence from other countries has contract system based on the investigation of the actual conditions of our country, puts forward the perfect our evidence contract system conception.In view of the evidence which contract theory and the practical significance, therefore this paper established a "civil evidence for the subject of contract research. Full text is divided into five parts:The first part of the main content: in Germany, Japan, South Korea and Chinese scholars to the concept of evidence contract analysis based on the assessment of evidence, and sums up the connotation and basic features of contract, the contract is evidence of the method to determine the facts of the case and to agree the effect produced procedure. Analyze the types of evidence contract, evidence can be divided into legal contract and any evidence of evidence contract, also can be divided into contract evidence of dynamic and static evidence of contract agreement. From the perspectives of civil procedural jurisprudence based, the legitimacy of evidence contract that evidence contract is the principle and the debate program subjectivity embodies the principle of socialism, and meet the requirements of the diversity in lawsuit parties pursuit of value.The second part of the main content: evidence contract nature, theoretical analysis of evidence of the contract is a procedural contract, both on the essential attribute of should be the same. Perspectives on litigation contract nature exists mainly litigation actions said, private law behavior said, to procedural contract compromise said, mainly around the nature lawsuit act and private behavior, the author thinks that launched in identifying evidence before contract nature of litigation actions and private law must have a clear understanding of behavior, clear its judgment standard. Private behavior of litigation actions and comprehensive analysis of the contract that evidence is essentially belongs to litigation behavior, but with general litigation actions and differ somewhat, main show in effective elements: evidence contract submitted to the court evidence request the parties this behavior, and contract with general litigation actions of feminism to principle, once said to the court to make can produce legal effect; Some evidence contract can not only produce the validity of the procedure, but also to the substantive law of the parties may also affect the rights and obligations; And the litigation actions and private behavior in-depth comparative analysis, establish the essential attribute of evidence contract for litigation actions.The third part, the main content: evidence contract belongs to litigation behavior, unlike private contract, the establishment and effective elements also have different. Established condition including: there are two or more than two of the interest relationship with relative subject; To create the effect of procedure for the purpose; Mean consistent. Effective elements include: the parties to a contract concluded evidence to comfortable mesh; Evidence contract both parties mean true; The content of the contract the legitimate; evidence The evidence shall sign a written contract; The parties to a court advocate exist by evidence contract, evidence contract after court review of legal and valid, negative elements that have evidence to contract not allowed time or attach conditions attached.The evidence has in effect for parties and court all contract has produced legal effectiveness, the validity of the procedure. Party breaches of contract of evidence should assume corresponding responsibility in accordance with the evidence, the court can the relevant procedures prescribed contract breaching party to continue, and the negative effects, or by the behavior of evidence contract shall be directly court approval. Evidence of defects including program contract mean bugs and blemishes, program shall be corrected flaws can, if the parties shall not be corrected, the court can ignore this behavior. Evidence of contract shall remedy defects mean if you don't allow for litigation actions mean said flaws, will damage remedies the legitimacy, will program for the realization of the substantive justice impact. Relief conditions including: the flaw of the court's referee consequences will influence; Apply for relief of the party concerned produce evidence to prove existence mean defective; The applicant should be filed within a reasonable time relief applications. Relief way include: withdraw flawed evidence contract or contract for defects of making up evidence; Through the evidence contract ratification remove defective; Treatment of the flawed evidence contract.The fourth part, the main content: analyses present situation of relevant evidence contract system of our country law, according to the evidence, the parties based on contract type of less agree the sanctions relevant rights are not wholly for law or the judge accepted, and puts forward practical problems such as perfecting the idea of evidence contract system. Perfect our country's evidence contract system in legislation and judicial practice shall be two aspects of China's evidence of contract; rich used dispersive type, the legislative model, the evidence for existing contract specification modified. In judicial practice of expressly judge cohabitancy right, give full play to the honesty and credit principle in civil practice the guidance function.