Notarization Evidence Preservation Research

The traditional civil procedure theory holds that preservation of evidence is protective and security measures taken to prevent evidence from being lost or unobtainable in the future, however, controversies remains in the theory circle in regards to how to make a distinction between preservation of evidence and collection and investigation of evidence from the perspective of systems. With the development of theory of evidence, as well as the transformation of the judicial function of the court, the parties find it increasingly harder to collect evidence. At present Chinese social economy appears in development process of all kinds of economic disputes and violations of intellectual property rights means are more and more complicated and subtle, court" limit preservation" trend makes the infringee depend entirely on the court for preservation of the evidence has been unable to meet the current needs of the development of the society.The notary public, as the independent third party taking the responsibility of proof and certification, perfectly meet the needs of preservation of evidences in prior to most of the civil proceedings, which take the social responsibility and plays great roles in securing social stability. To be specific, sometimes evidences so preserved turns out to reach its legal consequences as expected in settlement proceedings. In recent years, based on Notarization has high social credibility, evidence of effectiveness and superiority of notary public accountability and other characteristics, our country witnesses an increasing growth of notary business of evidence preservation, however, it often occurs that the notarized documents certifying evidence preservation is refused to be recognized by the court in litigations. Although evidence notarization exist certain defects or deficiencies, but the main reason lies in until now it is not promulgated by the Supreme Court a unified judicial interpretations in regards to the legal force of the notarized preservation of evidence, and in judicial practice, courts around China adopt different views on the same. Some are in the view that it is a legal document whose effect are exempted from being proved, others hold that it is just one piece of evidence, and the judge may exercise his own discretion to decide on its proof to the case. To sum up, especially for the defects certificate validity of each district court there is a huge difference, the understanding difference led directly to the outcome of the proceedings is disparate, the same evidence notarization in different provinces and cities use may have on the case to demonstrate the role of completely different. First, from the preservation of evidence in this paper notarized legal analysis expounds the basic theory of the preservation of evidence notary:the concept of preservation of evidence, notarization, significance and principles of the concept of evidence theory, characteristics, classification and effect, the concept of civil security, species, China legislative situation, the comparison with the court to preserve evidence, preservation of evidence highlights the notary in contemporary China has an important practical application of significance (Chapter). Then focus on analysis of the effectiveness of preservation of evidence, notarization, the effectiveness of the basic content from the notary, notary evidence of attribute analysis, notarized evidence of comparative research and preservation of evidence, analysis of four aspects of notarial effect notarized evidence of the effectiveness of preservation:the judge is essentially a binding, the judge can not arbitrarily based on the principle of free evaluation of evidence to deny the validity of notarized documents, but the judge in the trial process should still have the preservation of evidence, the evidence must be notarized if the objectivity, relevance and legitimacy of the substantive examination. Notarized documents to prove against the party for the defense of the authenticity of the object, the court should adhere to more stringent standard of proof, not because of the relatively simple side the possibility of some sort of defense to deny the existence of the effect of the preservation of evidence notary must require the parties to put forward more fully, credible negative evidence, negative evidence standard of proof should be higher than the ordinary civil standard of proof (chapterⅡ). Again from a practical point of view analysis of the preservation of evidence, summarized the current status of notaries:the preservation of evidence showing a notary in recent years the trend of rapid growth, the main areas covered are: intellectual property (trademarks, patents, copyrights, etc.) and economic disputes (contract, tort, breach of contract), etc., in our trial courts in civil and commercial matters, preservation of evidence, evidence of notarial acts are increasingly being used for various types of intellectual property rights and economic litigation, the court adopted the letter rate is very high. And from the practical point of impact of the preservation of evidence leads to the effectiveness of the main problems notary (ChapterⅢ). Finally, the judicial from the legislative and supporting measures for the preservation of evidence of China’s notary at this stage to improve the effectiveness of possible proposals put forward effective (Chapter IV).