The Study On Evidentiary Contract System In Civil Litigation

Evidentiary contract is one kind of litigation contract in the areas of identified of the facts, it refers to the two parties involved in the case of evidence collection, and use in the pre-litigation or litigation agreement, in order to influence the judge of the facts, trying to produce the effect of the procedural law meaning consensual. The evidentiary contract reflects the trend of convergence of public and private law and benefits to improve the effectiveness of the proceedings and litigation democracy.The current evidentiary contract legislation of our country are scattered throughout the Civil Procedure Act and the Provisions of Evidence in Civil Proceedings. The lack of theoretical foundation and legislation of the scattered evidentiary contract exist in the field defect. In this paper, the theory of the evidentiary contract starts from the civil law, on the background of integration between public and private law. It tries to explore the meeting point of evidentiary contract with China’s traditional legal culture, and strives to find the support of the theory and practice to establish evidentiary contract both at home and abroad for our country, combined with the theory and practice of foreign countries. In the specific operation to build evidentiary contract system in China, this paper seeks to the boundaries of the scope of the rights from the court and the parties entered into evidentiary contract. The evidentiary contract reflects the autonomy and the disposition of the parties under the guidance of the court. The aim of the paper is establishing the evidentiary contract under the supervision of the actual court, instead of copying foreign systems of establishing of a fully free and open evidentiary contract system.The first part is the overview of the evidentiary contract. This paper starts from the concept of litigation contract which combined with a similar system in the provisions of civil law and common law, and with reference to Taiwan and mainland scholars’ viewpoints, to put forward the concept of evidentiary contract. Meanwhile, the first part of this article rationalizes the evidentiary contract arising from the history of the development and reasonable evidentiary contract from the history attitude to the evidentiary contract legislation. The rational analysis of introduction of the evidentiary contract to the civil litigation field is mainly from relevant legislation and the amphibious of rational analysis.The second part introduces the theoretical basis of the evidentiary contract from five aspects of the mode of adversary proceedings, the contractlization of power, the right of disposition, the autonomy, and the idea of "no suits" in the ancient time of our country. Adversary litigation model is designed with respect for the subject of litigation status which the two parties can affect the trial. The judgment and the court just play the role as a passive third party in the litigation process. The disposition of the principle is the disposition of the two parties’ procedural rights and substantive rights. It is the basis for the evidentiary contract. Freedom of contract is the core of autonomy. Moreover, the autonomy principle in civil law provides a theoretical support for the establishment of evidentiary contract system. The establishment of evidentiary contract accords with the trend of convergence of public and private law. The concept of "no suits" in the traditional legal thinking provides the local culture basis for the evidentiary contract, which reflects the reduction in social conflicts and the ideal of social harmony.The third part is the value of the evidentiary contract. Evidentiary contract have tremendous positive value, but it is inevitable with negative impact. The positive value of the evidentiary contract is mainly reflected in three aspects of the equity of justice, the efficiency of proceedings and the litigation democratization. The basis of the evidentiary contract is the free will of the two parties. Because the parties have greater predictability and acceptability for their choice, the verdict and the implementation are easier to be accepted by the parties. The contract of the collection and use of evidence, as well as the burden of proof allocation can shorten the cycle of litigation. At the same time, free will of the contract is conducive to the realization of judicial democracy. Of course, the abuse of the evidentiary contract may impede the judge’s free evaluation of evidence, or even shaken the public law property of the procedural law.The fourth part mainly expounds the classification and effectiveness of evidentiary contract. This section defines the property of the evidentiary contract, combined with the theoretical circles on the doctrine. Meanwhile, I put forward my own claims on contract classification of evidence joined the different points of view both at home and abroad. This section discusses the contract from the establishment of the contract, the entry into force, as well as the scope of their legal effect.The fifth part is the idea to establish evidentiary contract system in China. This section analyses the necessity of establish evidentiary contract and the obstacles both in the theory and practice. This section puts forward the proposal to establish evidentiary contract system in China through combing with the first four parts of the analysis and the extra-territorial legislation. In the system build process, the evidence rules of the contract system should be established on the basis of the adversary litigation mode and on the established proceedings and litigation rights and obligations of the parties. It should don’t violate the prohibition provisions of the law or the social and public interests. The right division between court and the parties mainly reflected in the provision that the evidentiary contract should not prevent the exercise of the free evaluation of evidence and the evidentiary contract should reach the court acknowledgement. At the same time, it is necessary to improve the supporting systems, such as the judge’s obligation of inform and the legal system to protect the establishment of evidentiary contract system.