Studies On The System Of Taking Evidence Abroad

As an important aspect of international civil or commercial litigation, taking evidence abroad directly decided the trial results. International civil or commercial cases often need officials to obtain materials or witness abroad. However, because of differences in litigation system and legal tradition, national legislations and practice in taking evidence abroad are quite different. For instance, the civil law countries and the common law countries have conflict views about the scope of taking evidence abroad, vehicles for obtaining evidence and so on. Thus also leads to constantly conflicts between those countries. It seems that very difficult for countries reaching a consensus on taking evidence abroad and carrying out cooperation together. In order to resolve conflicts among countries in taking evidence abroad, on March 18,1970, The Hague Conference on Private International Law officially revised the convention on the taking evidence abroad in civil or commercial matter. (referred to The Hague Evidence Convention). As the Hague Evidence Convention fully considered the differences between national systems of taking evidence, it achieved the general recognition around the world. Up to now, it owns 58 contracting states, which makes the convention, becomes one of the most successful conventions in the history of The Hague Conference on Private International Law. The Hague Evidence Convention provides the legal framework of taking evidence in the area of international civil or commercial matters.In China, our national system of taking evidence abroad contains three parts:the domestic legislation; bilateral judicial assistance agreements; and the Hague evidence convention. The 260th regulation of our country’s civil procedure law arranged following steps of taking evidence abroad. According to the international treaties signed or participated by the People’s Republic of China, or in accordance with the reciprocity principle, the people’s court and the foreign court may request each other, to obtain documents, investigate legal facts, something etc. Thus, to international civil or commercial cases, the courts in China can obtain evidence abroad through the following three ways:firstly, if there is no any treaty relationship between the entrusted state and our country, the only way to obtain evidence abroad is by diplomatic means or based on the reciprocity principle. Secondly, if the entrusted state is one of contracting states and submitted agreement to accept our country’s participation, we can obtain the evidence abroad by The Evidence Convention. Till now, the convention has been effective between our country and 38 countries. Thirdly, if the entrusted countries signed bilateral judicial agreements with our country, then taking evidence abroad can be in accordance with the procedures regulated in the bilateral judicial agreements. So far, our country has signed civil or commercial bilateral judicial agreements with 34 countries. But it should be pointed that, according to the article 28 of the convention, the convention shall no affect any other treaties have signed or will signed. Thus it can be referred that the bilateral judicial agreement between contracting states should be applied prior than The Evidence Convention. However, most of the bilateral judicial agreements are similar to The Evidence Convention articles, just simplify and explain its original words.Although as the basis of our country’s taking evidence abroad, the Hague Convention taking an important role in the area of taking evidence abroad. However, in judicial practice, our courts rarely use the convention or bilateral judicial assistance agreements to take evidence abroad For reason, on one hand, taking evidence is time-consuming and cost too much. However, the deeper reason is our countries’ litigation system of taking evidence abroad system is full of defects, such as the scope of the taking of evidence abroad; the application of electronic technology etc. To solve these problems, we need to further study the provisions of the Convention, correct defects of our countries’ legislation system of taking evidence abroad. Also, we need to study other multilateral convention on the taking of evidence abroad and regional Convention on the taking of evidence abroad, learn its strong points. Only in this way, the national system of taking evidence abroad could constantly improve.