Research On The Evidence Assistance Duty In Civil Procedure

Classical debate ideology emphasizes the pure leading role of the person concerned in the aspect of collecting litigation data, and it takes setting that both parties are able to fully get facts and evidence as a precondition. Under the classical debate ideology, the person concerned without undertaking evidential burden doesn’t have the obligations to help the opposite party to collect facts of evidence and information. But in the modern litigation emerging in the new historical conditions, the situation that both parties have approximately equal opportunity and capacity is rarely seen. In this case, both parties didn’t reach agreement on the grasp of evidentiary material, the degree of difficulty to obtain evidentiary material, and the risk allocation of burden of proof, it is very difficult for the party bearing the burden of proof under disadvantaged situation to obtain relief from judge or the existing legal provisions, therefore, it is necessary to amend the classical debate ideology. The new type of lawsuit emerging in juridical practice not only is the challenge of the current civil legislation and judicial system, but also provides the opportunity to reform on it. In judicial practice, it implements the limits on extreme liberalism for one party without burden of proof and the third party except for the party by setting appropriate assistance of evidence investigation or other ways, recovers the insufficiency in the capability and means of evidence collection for the rights holder in disadvantage situation, so that both parties truly achieve equal status, equal opportunities and equal risk in a civil action, and it can guarantee both parties enjoy fairness and justice in a civil action.The so-called assistance of evidence investigation refers to the duties that the party without the burden of proof and the third party except for the party concerned should do in order to assist the court to conduct evidence survey. The study of the theory has a very important sense. It abundantly assumes the enthusiasm in the civil action for one party without burden of proof and the third party except for the party concerned. Thus it is conducive to ensure the evidence collection is full and timely, realizes equality of defense means between both parties, and conductive to obtain a convincing fair impartial results. However, the research of Chinese scholars on the discovery path and the responsibility of facts is often conducted from the view of the party with burden of proof, there were few people concerning about the responsibility in facts of a case discovered by the party without burden of proof and the third party except for the party concerned. The author believes that, for the purpose of timely and effective addressing law case and protecting the rights for both parties to be close to the evidence, we should ask the party concerned without the burden of proof and third-party to conduct assistance of evidence investigation.In addition to the introduction and conclusion, this paper is divided into the following three parts:The first part is the summary of assistance of evidence investigation. This part describes background, content, legal form, nature, classification, and the discrimination with related concepts for assistance of evidence investigation.The second part discusses the validity to improve assistance of evidence investigation from the legal principle. It looks for the reasonable basis for the existence of assistance of evidence investigation from the civil law and legal theory in city law countries and regions, and makes it have a theoretical basis for legitimacy, and specifically elaborate from principle of good faith, principle of equality of arms, real obligation and statements obligation, intelligence claims rights, instruments proposed obligation, evidence disturbance, and other aspects.The third part analyzes the status quo of China’s Civil Cooperation obligations regarding assistance of evidence investigation, discusses the necessity and feasibility of improving assistance of evidence investigation, and puts forward specific proposals for the improvement of assistance of evidence investigation in China. First of all, it analyzes the current situation of China’s current civil obligations on assistance of evidence investigation from the issues in our current civil litigation practice and the inspection of existing legal rules; Secondly, this paper respectively elaborates the necessity and feasibility to improve China’s assistance of evidence investigation evidence; Finally, this paper provides specific choices for improving assistance of evidence investigation according to our country’s current situation, and respectively discusses the preconditions, scope, consequences of assistance of evidence investigation.