Analysis On The Proof-losing-Right In Civil Lawsuit

Proof-Losing-Right System is put forward with evidence raise timely, mainly toovercome disadvantages, such as the action of delay, judicial resources waste,program defects and so on, caused by the evidence is allowed to present at any time.Proof-Losing-Right System refers to the system that the party should put forward theevidence within the period fixed by law or appointed by the court, and after the periodthe party losses the right to put forward the evidence and certification rights. It is onthe premise of time period and makes the lost of the right to put forward the evidenceand certification rights as adverse consequences, in order to urge the party submitevidence actively, avoid evidence raid suddenly, make the trial go smoothly, andguarantee the stability of the program and to enhance the efficiency of lawsuit. Atpresent, to set up Proof-Losing-Right System has become the development trend ofthe civil litigation; most countries have established this system. The judicialdepartment after many years of exploration, finally in December2001, the SupremePeople’s Court issued Supreme People’s Court Certain Provisions ConcerningEvidence in Civil Procedure just initially set up this system. However, because thepresent Civil Procedure Law is not involving this system, the legitimacy andjustification of the Proof-Losing-Right System are questioned. By the influence of theChinese traditional litigations culture, the public also tend to exclude this system. Andthe system itself is designed too coarse, and there are many fuzzy points andloopholes. Related guarantee measures and relief system are not improved. All thesedue to the system emerge a lot of problems in operation process and make the systemworse still, someone even propose the repeal of this system. In my opinion, don’tnegate a system when it has some problems, but undeniably, the request of constructand perfect our current Proof-Losing-Right System is very urgent.This article adopts two kinds of research methods. One is comparative method.Including horizontal comparison, that is about legislation and research of foreign Proof-Losing-Right System, in order to provide some significance to our system. Andlongitudinal comparison, that is about the development history of Proof-Losing-RightSystem, and the course of establishing this system in our country. In order to clearestablished background and trend of the system. Another is combining theory withpractice. In this paper, we will profile all kinds of problems appeared in the process tofind the insufficiency of the design and to try to improve.This paper is totally divided into five parts:The first part is the basic theory about Proof-Losing-Right System. Through theanalysis about academic definitions, clear the relation between Proof-Losing-RightSystem and Evidential Proof System. Introduce this system include period andconsequence, the substance of lost the right to put forward the evidence andcertification rights. And then through its development of history, clear that the systemis set up in the trend.The second part is the value of the Proof-Losing-Right System. This part mainlyintroduces the value system of civil lawsuit. Point out that the Proof-Losing-RightSystem tends to pursuit efficiency and order. And the Proof-Losing-Right Systemplays an important part in maintaining procedure justice, maintaining procedurestability, promoting the parties reconciliation, and perfecting civil litigation system.But true, this system also exist defects, and need cooperation of the relatedsafeguards.The third part introduces foreign related legislation. Include United States,Germany and Japan. Through the contrast of the two legal systems’ relevantprovisions, clear their differences and causes.We hope to find suitable model andimprovement methods for our country.The fourth part is present situation and disadvantages of our Proof-Losing-RightSystem. This part investigates the establishment and operation situation of this systemin our country. Chinese Proof-Losing-Right System is established by the department.But because the concept is not mature and design is not thoughtful, there are manyshortcomings in the system itself. And the safeguard measures are not perfect, lendinga lot of problems in operation process, and the existent value of this system is beingquestioned. The last part is consummation of our Proof-Losing-Right System. According tothe deficiencies of Chinese Proof-Losing-Right System, provide feasible suggestions.Include to set up the procedure justice philosophy, and improve the specific measuresof the Proof-Losing-Right System, but also to build perfect related security system.In short, in this paper, by expounding theoretical connotation and value pursuitof the Proof-Losing-Right System, and a comparative study of foreign legislation, andaccording to our country’s legislation about this system and operation situation, givethe existence of Proof-Losing-Right System full affirmation, and give targetedsuggestions to various problems of current Proof-Losing-Right. Hope it will behelpful for reasonable construct and perfect operation of our Proof-Losing-RightSystem.