On The Theory Of Evidence Preservation System Before Litigation

Evidence preservation system emphasizes that we should use the authority of court topreserve the evidence which may be lost or difficult to obtain later in order to ensure thesmooth progress of legal proceedings. Common law countries adopt the adversary litigationmode, they emphasize the judge’s neutral position,generally they left the burden of proof tothe parties, so there is no clear evidence preservation system in common law countries, wecould only find some similar to the provisions of the law. Comparison, the civil law countriessuch as Germany, Japan and the area of Taiwan emphasize the authority of the judges, so wecould find some detailed regulations for the evidence preservation system. Compared with theadvanced experience of the outside, the main problems of our country’ evidence preservationsystem is humble, simple,strict in legislation, and we do not carry out the concept of resolvingthe dispute, so that we not only go against in carrying out the system of evidence preservationbefore litigation in the judicial practice, but also do not tally with the wave of the reformationof the international evidence preservation. Based on this, the transformation of the evidencepreservation system before litigation has become the trend of the times.In addition to the introduction and epilogue, this article is divided into fourparts.Full-text consists of more than twenty-three thousand words.The part of the Introduction starts from the common phenomenon of civil litigation injudicial practice, the author points out the value of the evidence preservation beforelitigation,and draws the outline of the basic ideas of this article.The first part of this article emphatically analyzes the basic theory of the evidencepreservation system before litigation. This part mainly introduces the concept, nature andfunction of the system.Based on the analysis of all kinds of theory of the nature of theevidence preservation before litigation, the author sites the various theories, and puts forwardhis own opinion. Then the author analyzes the function of the evidence preservation beforelitigation, so that he could lay the theoretical foundation for the civil evidence preservationsystem before litigation.In the second part,the author mainly introduces some regulations on the evidencepreservation before litigation in Germany, Japan,France and the area of Taiwan. Comparisonmethod is the main research methods in this section, the author hopes that through thecomparison, we could learn some advanced experience about the system of evidence preservation before litigation.The third part of this article emphatically investigates the legislative status quo of ourcountry’s civil evidence preservation before litigation and makes some related evaluation.This section focuses on investigating our country’s civil legislation situation of the evidencepreservation before litigation,then points out that due to the lack of legislative support, thesituation of the evidence preservation before litigation is arbitrary, so the author hopes thatbases on this analysis,he could provide some direction for the specific structure in the fourthpart.The fourth part emphatically analyzes the improvement of the system of the civilevidence preservation before litigation. The author firstly analyzes the necessity andfeasibility of perfecting the system of the evidence preservation before litigation from threeaspects,then puts forward that we must not only "carry out the subjectivity principle inprocedure","expand the function of the litigation to resolve the dispute","reduce the sourceof the litigation" and "prevent the happening or expanding of the dispute",but also care aboutChina’s current legislation and the judicial situation,so that we could improve the system ofthe civil evidence preservation before litigation,thus to make some contributions to makeChina’s civil judicial procedure more scientific.