Discussion On The Right Of Investigation And Evidence Collection Of The Parties In Civil Litigation

Investigation and evidence collection rights of the parties in civil litigation was that in a civil litigation, the people's court, the plaintiff, the defendant and the third person with the qualification of proceedings, in accordance with legal scope and procedures, have the right to survey and collect evidence relating to the proceedings. The premise and the basis for parties bearing adduce proof was that the parties were given by law the right to investigate and collect evidence. The right of investigation and evidence collection of parties in civil litigation in our legal mainly reflected in the Article 50 and 61 of Civil Law, but these provisions in principle simply provided the appropriate investigation and evidence collection, but lacked the provisions of how to exercise rights and how to protect the right to exercise effectively. This resulted that the enforceability of this right discounted much which made the parties have many difficulties to proceed during the judicial practice, such as when collect evidence difficultly from the party and the third people outside the proceeding and require the witness to testify, the witnesses would not appear in court for various reasons. Evidence collection and witness testimony were all belong to the scope of investigation and evidence collection rights of parties. Improving the system of investigation and evidence collection in civil litigation was the necessary requirement for guaranteeing the proving right effectively of the parties. This article discussed investigation and evidence collection right of parties in civil litigation from four parts.In this article, the writer discussed the related concepts and relationships between the concepts involved in the investigation and evidence collection right of the parties in the first part. First of all, analyze the concept of the investigation and evidence collection right of the parties. Through analyzing the doctrine of investigation and evidence collection right of the parties by academic, introduce that the investigation and evidence collection right of the parties was the right of investigating, collecting and applying litigation-related evidence in accordance with legal scope and procedure. Investigation and evidence collection was an important procedural right of the parties and clarified the parties covering the range of parties, agents and lawyers. Furthermore, set out correctly the protecting scope of protecting the parties'investigation and evidence collection right. Second, comparing investigation and evidence collection right of parties and proving ability to prove responsibility to distinguish the links with investigation and evidence collection of the court so as to elaborate on the characteristics, scope and nature of investigation and evidence collection right of the parties. Finally, highlight the necessity of protecting investigation and evidence collection right of parties to prove the meaning and status of investigation and evidence collection right of parties.In the second part, discuss the related system of foreign investigation and evidence collection right of parties and provide these systems'revelation of the system of investigation and evidence collection right of parties. Expounding from the theory of continental law and British and American law, introduce the mature system of these two large laws, refer the good system of adversary and authority doctrine and notice that the system of investigation and evidence collection right of parties in our country should focus on drawing on mastering evidence, responsibilities and obligations from the third people, testimonial evidence, witnesses'privileges and other aspects'system.The third part analyzed the status and the causes of the current situation of investigation and evidence collection right of parties in our country. In judicial practice, a lot of investigation and evidence collection problems mainly reflected in: the lack of scientific and reasonable pre-trial preparation procedures; the parties needed to go through the consent of the holder to get written evidence and physical evidence when the third people mastered them, then conflicts of interest of both parties were resulted and it was very difficult for the other party to agree to surrender their holdings of documentary evidence; the rate of witness appearing in court was too low whose causes was not only our traditional official-standardized thinking affected but also the scope of investigation and evidence collection right of the court lack of scientific nature. In the civil litigation, legislation of the status of investigation and evidence collection right for parties'application was relevant perfect and the parties who could not collect or collect nothing could apply the court to get evidence instead. In judicial practice, the statuses of our parties applying investigation and evidence collection right in civil litigation had two extremes, one was the parties'over-reliance on court to investigate and collect evidence; the other was the parties giving up the right to investigate and collect evidence. One of the reasons was that the parties'awareness of the law was not enough, did not know or understand when they could not collect evidence for objective reasons could apply People's Court to collect evidence relevant to the case; another reason was that because of our traditional official-standardized thinking existing for a long time, many parties feared officials psychologically, dared not ask the court to collect evidence which largely affected the exercise of parties'proving right; during the process of applying investigation and evidence collection of our courts, the phenomenon of low efficiency widespread that made the parties cost highly to investigate evidence by themselves while the investigated party refused to provide evidence was also an important reason.The fourth part provided a few ideas investigation and evidence collection right of our parties and hoped to refer by the system of investigation and evidence collection of parties and civil litigation system in our country. Introducing a special Civil Evidence Law was a priority to solve investigation and evidence collection right of parties'problem, according to the application of investigation and evidence collection system and the development of specific sanctions measures to effectively protect the evidence and implement the obligation.In summary, this paper based on the judicial practice, describe the scope and system of investigation and evidence collection right of parties by using civil litigation theory, identify problems in existing law and put forward his own improvement measures of investigation and evidence collection system. Especially in our brewing reform period of the law of evidence, the research on investigation and evidence collection of parties contributed to build a more scientific and rational system of civil litigation. However, well aware that the parties'investigation and evidence collection was very important, but it was not isolated, it was closely related to other procedural rights and legal systems. Only improving the system of investigation and evidence collection right of parties could not achieve the full purpose of protecting the legitimate rights of the parties, must comprehensively and systematically improve the civil litigation system. The author's humble opinion and knowledge might be able to play little role in improving our civil litigation system, but in defending the parties'proceeding right, the author would speak out and hope that the parties'rights and interests in the proceedings could get specific and comprehensive protection and attention in the theoretical discussion.