A Study On The German Independent Evidence Collection Procedure And The Enlightenment For China

The German Independent Evidence Investigation Procedure emerged on thebasis of the integration of the Continental Law System and the Common Law system,which results from updating and developing the traditional civil evidence preservationsystem so that it can be adapted to the changing features of civil disputes. TheProcedure has perfected the structure and expanded the functions of the traditionalevidence preservation system while having added such multiple functions and effectsas evidence disclosure, fact confirmation and dispute resolution out of the court, etc.to the original system. It has been a pretrial evidence investigation procedure with anindependent position and multiple functions, making a great contribution to theworld’s civil evidence system as a good example in the reformation of civilprocedural system. As for China’s Evidence Preservation System, relevant stipulationsappear in different laws and regulations, and differences exist between the general lawand the special law. Therefore, disputes come along in law practice as a result of theimperfection of the system, especially in pretrial evidence preservation. Although thenewly-revised civil procedural law has defined the pretrial evidence preservation, thesystem still has its flaws. Therefore, this article proposes that Taiwan’s route on thisissue could be adopted, that is, we can adopt some of the regulations of the Germanevidence preservation and make some reformation on them according to the actualsituation of China. Given this, the article will introduce the emergence and value ofthe German Independent Evidence Investigation Procedure, discuss its structure andfunctions and make a comparison with relevant systems in other countries and areasin detail. Then, it will propose some suggestions on the perfection of the System ofChina. The main body of this article is made up of four parts, about thirty thousandwords.The first part of the article mainly introduces the source and significance of theGerman Independent Evidence Investigation Procedure System. The System emergedduring the time when Germany modified its civil laws, realizing the transformationfrom original evidence preservation to evidence collection on function and agreeingwith the needs for solving the modern lawsuits. As a result, it has great significance:on the macroscopic level, it can be deemed as a successful model on integration of the continental law system and the common law system; on the microscopic level, ittransformed the logic in civil litigation, breaking the traditional application for urgentcondition and reaching an independent status and multiple functions.The second part mainly discusses the constitution of the System and therelationship with other related systems. This article, starting from the conception ofthe System, expounds the range of application, procedural requirements, potency andcosts of the System, exposing its independent position and multiple functions on itstraditional mode and comparing and distinguishing it with evidence collectionprocedure and evidence investigation.The third part makes a comparison analysis of the German Independent EvidenceInvestigation Procedure. In this part, the German Independent Evidence InvestigationProcedure is compared with evidence disclosure system of the U.S., prevention ofpretrial measures in France, evidence preservation in Japan and Taiwan area in aspectsof constitutive requirements, procedural matters, objectives, functions and costs. Inthis way, similarities and differences between the topic system and others are easilyfound.The forth part discusses the inspiration of the System on developing theevidence preservation of China. This part of the article synthetically analyzes thesituation of legislation and judicial predicament in China, explains the necessity ofborrowing the advantages from the German Independent Evidence InvestigationProcedure and makes some useful suggestions. At last, the article makes some specificprocedure designs on the function expansion, the application of procedure, theindependent character and the guarantee of procedural right.