On China's Distribution Of Evidence Achievement Right In Civil Proceeding

The distribution of evidence achievement right in civil proceeding developed by two aspects. The first is distribution of the range of evidence achievement, the second is about how various subject of evidence achievement right to achieve evidence successfully. Concerning how to distribute evidence achievement range, the civil procedure law gives excessive power over the evidence achievement right to court, which causes serious potential problems, such as judges may be prejudiced by first impressions, and abuse the evidence achievement right. Regarding how various subject of evidence achievement right to access right, there is no clause to help litigant to achieve evidence in current civil proceeding, which drives the litigant to rely on private force totally in practice, and put the litigant who is responsible for burden of proof in an disadvantage situation. It's also detrimental to realize entity equity and construction of harmonious society. Therefore, it's quite urgent and necessary to improve our evidence achieve system, so that litigant could own truly right to achieve evidence.The main text composed of three parts, totaling 32 thousand words.The first part is the distribution problem of evidence achievement right in civil proceeding in our country and the analysis of its reasons. In order to reflect the problems, the writer points out that the distribution of evidence achievement right in civil proceeding in our country exists two kinds of problems. One is that the range of evidence achievement between different subjects is unreasonable. The other is the litigant's evidence achievement right is not carried out well. To analyze the reasons, the writer points out that the influence of litigation patterns of doctrine of function and power, the influence of the judicatory style of Ma Xiwu, the wrong definition of the evidence achievement right, the influence of flexible procedure concept, the influence of no litigation culture and information monopoly lead to the problems.The second part is the investigation and enlightenment of foreign evidence access system in civil proceeding. The writer introduces the evidence act of Anglo-American law system and civil law system respectively, and analyses the enlightenment we learn from evidence achieve system of foreign civil procedure law. As to evidence achieve system of Anglo-American law system, the thesis mainly recommend evidence discovery system in America and Britain. As to civil law system, the thesis mainly recommend order for production of a document in Germany and Japan, and independent evidence procedure in Germany. In writer's opinion, the foreign evidence achieve system not only states that the litigant has evidence achievement right, but also stipulates some specific practical means to exercise the right. Another thing is it regulates sanction measure to subjects of duty who against produce evidence. The last thing is it regulates that in some condition the evidenced man has the right to refuse to witness or to produce related evidence.The third part is how to improve evidence achievement right in civil proceeding in our country. It mainly concludes three parts, namely redistribution of evidence achievement range, improve aufklarung system, and make litigant be girt with practical way to achieve evidence. Regarding redistribution of evidence achievement range, the writer hold an opinion that it should give litigant and his attorney the right to obtain evidence of issues except rejection testifying right causes. Evidence achievement range of court should be limited in procedure verity which has no relation to entity dispute, and verity of proved identity by checking document like household register or by checking information with department like the civil administration department or police. Concerning the improvement of aufklarung system, the writer focus on requirement and methods of aufklarung, and remediation when incorrect aufklarung happens. Regarding how to help litigant realize evidence achievement, the writer hope by promoting evidence investigation order system, to improve the system of judge achieve evidence as litigant demands, to improve testify system of witness and surveyor, to improve evidence achievement system of litigant's presentation, to improve evidence preservation system, to improve evidence exchange system, and to improve publication system of social information in order to guarantee litigant's evidence achievement right, and help litigant to realize their evidence achievement right fully.