On The Exploration Prove In The Civil Procedure

In the civil law countries and regions, the law requires the parties apply for evidenceinvestigation must contain the will-be-proved facts and means of proof. So lacking of thiselement is called to be exploration prove. While there are some differences about the title ofexploration prove in Germany, Japan, Taiwan and mainland China, the same place about thedefinition of this situation is that the request for evidence investigation aiming at acquiringinter-related information. In civil law countries, the traditional debate principle and thespecific obligations made the exploration prove be prohibited. Until the introduction of thesocial action and the modificatory principle of debate, the civil action’s attitude towards theexploration prove became relative ease. In civil law countries and regions, the scholars beginto recognize the value of the exploration prove. The absolute ban on this is not be desirable.The Chinese scholars has just started to research the exploration prove. The works aboutthis title in mainland include “On the Exploration Prove in Civil Procedure” by ZhouChenghong,“Analysis of Exploration Prove in Civil Procedure” by Liu Xianpeng and thepaper by Zhou Wei who is a master graduated in2010. In Taiwan, Jiang Shiming and ShenGuanling, two famous scholars, research on this title.This paper is divided into four parts. The first part is theoretical overview about theexploration prove. The author proposes the definition of the exploration prove which is moreappropriate for this paper by listing the definitions during various countries and regions. Onthe basic of analysis of the classification during various countries, this paper thinks theexploration prove should include three parts. Finally, the author compares the explorationprove with the fishing expedition to indicate the differences between these.The second part discuss the attitude about the exploration prove in the civil law countriesfrom absolute prohibition to the relative ease. This section analyzes the historical backgroundand the reasons of this change.The third part analyzes the theoretical basis for the legalization of the exploration prove.Development of the classical principle of debate has broken the prohibition on the explorationprove. The judge is no longer in a passive position and the power of the judge is strengthen.The materialization obligation requires parties to make a true and complete statement. All ofthese should be consider to legalize the exploration prove.The fourth part analyze the prosecution system and the system of evidence application and so on, which are related to the exploration prove, in order to propose how to use thissituation: explore whether exiting reasonable basis, apply this situation for different case anddifferent stages.