On The Fishing Expedition In The Civil Procedure

Generally, the parties should define the facts to be proved and evidence method when presenting evidence application. But in practice, there will be cases where the parties cannot define the facts to be proved and evidence method when presenting evidence application, and the parties can only make general and abstract evidence application, attempting to make the court launch investigation to obtain evidence from the other parties and taking advantage of it as evidence support or supplement of their own views, which results in fishing expedition. Fishing expedition means that with unclear facts to be proved and evidence method, the parties make application on the purpose to obtain relevant information. The phrase of “fishing expedition” comes from Germany. It is not a legislative term, but a hermeneutic concept, which is developed from theory and practice. Countries and regions with legal systems prohibit the application of “fishing expedition” based on the consideration in aspects of traditional dialecticalism, specific obligations, faith, and other factors. In the later,with emergence of social action thought and amend debate doctrine and various modern litigation, attitude that treat fishing expedition began to change, it is no longer an absolute prohibition, but tends to be relatively mild, the change of attitude states the applicable value of fishing expedition. Our system of civil procedure has many problems,especially in evidence preservation system, it is important to introduce fishing expedition for solving these problems, and the introduction of fishing expedition to our Civil evidence system has tremendous value. After analyzing the problems in the evidence system and proving the necessity of the introduction of fishing expedition, explore how to introduce fishing expedition to our system of civil procedure.Article is divided into five parts:The first part introduces the basic situation of fishing expedition. Firstly, analysis the meaning of the concept “fishing expedition” and make sure several basic features of fishing expedition, then introduces classification of fishing expedition by the scholars of major continental countries and regions, and finally by studying these scholars’ classification, put forward my viewpoint of the classification of fishing expedition.The second part describes changes of attitude to fishing expedition by the civil law countries and regions mainly introduce and analyze the reasons and the performance of changes. In the early, civil law countries and regions take the absolute prohibition to fishing expedition as the principle; the main consideration is based on the traditional debate doctrine, specific obligations and the principles of integrity and other factors. And in modern times, social action trend emerges, in this case the traditional doctrine of debate has a little change, the judge’s interpretation right to be taken seriously, the parties work together to duty, and the party real litigation obligation and litigation to promote, all the five factors of economic lead the attitude of civil law countries and the region changes, it is no longer absolutely prohibit fishing expedition, but a certain degree of recognition. On this basis, introduces changes’ performance of Germany, Japan and Taiwan.The third part proved to explore attitudes of fishing expedition in the Civil Procedure,pointed out the problems in the system, and analyzed the possibility and necessity of introducing fishing expedition. First, make a statement of introduction of fishing expedition, then analysis the problems in the system of the civil procedure. Once again our country is not a civil law country, the debate doctrine is not the basic principle of our civil procedure, adopt the coordination doctrine in the proceedings that make it possible to introduce fishing expedition in our country. Finally, it has its necessity to introduce fishing expedition to our civil procedure system, and explore its unique value to our civil procedure system, mainly reflected in adapting to modern litigation, clearly demonstrated the object, to make up for lack of proof allocation of responsibilities and expand the party evidence collection and other capabilities.The fourth part discusses how to construct the fishing expedition in our civil action. First, make a clear legal standard of fishing expedition. Secondly, analysis the types of cases which involve fishing expedition, according to the existing problems of the relevant system above, explore how to apply the fishing expedition to the system of civil procedure.