The Blemish Evidence Of Civil Litigation

Theory of the blemish evidence has been the concern of civil procedure law in recent years. In judicial practice, the judge often encounters the problem of the blemish evidence. The traditional theory of evidence sometimes can’t make a reasonable explanation. In this paper, through the study of the blemish evidence, writer wants to help people to understand the blemish evidence, improve the practice of using blemish evidence and the development the theory of evidence."The Blemish evidence" usually is seen as "illegal evidence" in criminal litigation and administrative litigation, or we can say it is used as "illegal evidence" in the same sense. But in this article,"blemish evidence" has independent meaning which is different from the meaning in the criminal litigation and administrative litigation."Blemish evidence" in civil litigation can be defined as:the method of the collection or the representation of evidence has defection. The aim of this paper is through the definition of "blemish evidence", the forms and the characteristics of the blemish evidence to conclude that the rule of corroboration is very important to blemish evidence.In this paper, we draw the blemish evidence problem through the analysis of typical cases first. Blemish evidence sometimes is significant to justice, so the discussion of it is very necessary. Summarize experience in practice, we can summarize the blemish evidence into the following two categories:the first evidence is that there is defect in the means of obtaining evidence which cause the ability of evidence is undetermined. The second category is evidence which proof ability declined because of defects in the forms. It needs other evidence to support its ability. But one party is unable to provide evidence to support the evidence, or the other party can’t provide evidence to oppose it. In the early development of the countries of The Civil Law System and The Common Law System countries, the blemish evidence is classified as "illegal evidence "which is illegally. But in the development of the legal system, the blemish evidence is separated from legal and illegal. In this part, we will know how to make a distinction between illegal evidence and blemish evidence in order to serve the judicial practice. Judge can review the proof ability through free evaluation in the countries of The Civil Law System, and through the debate mode in the counties of The Common Law System. Then we analyze the advantages and disadvantages to lead to our judge model which is the rule of corroboration about "Blemish evidence". Through the discussion about the corroboration rule of "the Blemish evidence", the deficiency of corroboration, we can know it is important to establish the rule of corroboration in both theory and practice. At present the rule of corroboration in our country has its insufficient place and it needs to be improved in order to serve our country’s legislation and judicial practice better.