Research On Obstruction Of Evidence In The Civil Procedure

In the judicial practice of our country, obstruction of evidence takes place again and again. However, our system of obstruction of evidence is not perfect, imperfect legislation has led to use of blur of the system of obstruction of evidence in the judicial practice of our country. In this paper, on the basis of drawing lessons from foreign legislative model and judicial practice experiences, I adopt the method of empirical study to make a roundly and deeply research on legislative perfection of the system of obstruction of evidence of our country in a comparison way.There are four parts, excluding the preface and conclusion.The first part is about definition and constitutive requirements of obstruction of evidence. By comparing and analyzing the existing expressions of the definitions of obstruction of evidence, this chapter generalizes that the differences of the existing expressions focus on the nature, scope of the subject and subjective fault of the obstruction of evidence, and so on, which comes very naturally to transition to the discussion on the constitutive requirements of obstruction of evidence. The constitution of obstruction of evidence is on the premise of the violation of obligation of preserving and submitting evidence. The party with the burden of proof and the party who does not bear the burden of proof are both the subject of obstruction of evidence. Due to the unity of behavior and legal consequences, the third party shouldn’t be the subject of obstruction of evidence. There is no dispute about implementing obstruction of evidence deliberately both inside and outside academia. Objectively, obstruction of evidence by negligence leads to be unable to prove or be proven difficultly. Subjectively, because of failing to fulfill the duty of care, the party should to be blame. In addition, compared with deliberate obstruction of evidence, identifying obstruction of evidence by negligence is operable. Therefore, obstruction of evidence by negligence should be included in the category of obstruction of evidence. The objective aspect of obstruction of evidence should be that the specific obstruction of evidence gives rise to the consequence that to be proven differently or unable to prove.The second part is about the legal basis and legal effects of obstruction of evidence. Obstruction of evidence not only hampers the discovery of the truth, but also damages the parties’ rights of proof. Therefore, the party who implements obstruction of evidence should bear the legal sanctions. However, what’s the justifiable basis of the punishments? In order to answer to this question, we have to discussion the legal basis of obstruction of evidence. Rule of thumb can’t give a explanation for obstruction of evidence by negligence. As a legal principle, principle of good faith is a code of ethics which is relatively faint. These inherent limitations cause that any kind of legal principles are unable to build the system of obstruction of evidence separately. With the multiple angle of view, we set the cooperative obligation as the main legal basis of obstruction of evidence. This main legal basis, together with rule of thumb and principle of good faith, builds the system of obstruction of evidence. As a kind of tough sanction, switching the burden of proof can’t be applied to obstruction of evidence by negligence. Otherwise, it will be harsh. Similarly, there is no any kind of sanctions able to be appropriate for all situations of obstruction of evidence. Therefore, the judge must comprehensive various factors, and choose a more appropriate legal sanction.The third part is about the present situation of the system of obstruction of evidence in our country. The regulations on obstruction of evidence appear in the Civil Procedure Law, the judicial interpretation and some substantive law. The articles are messy and lack of principal provisions. Though combing and analyzing specific articles, we found that it’s unreasonable on the constitutive requirements of obstruction of evidence. In addition, it’s unscientific about the punishment of obstruction of evidence. At the same time, our country are also lack of the regulations about the obligation of preserving and submitting evidence. Coarse provisions and other factors lead to use of blur of the system of obstruction of evidence in the judicial practice. In spite of this, through collecting the actual cases on obstruction of evidence, we find that damaging, hiding and refusing to provide evidence are the common behaviors of obstruction of evidence in the judicial practice. It’s beneficial to concretize the types of obstruction of evidence.The fourth part is about the suggestion for improvement of our country’s system of obstruction of evidence. Drawing lessons from foreign legislative style, our country should adopt the legislation mode of general rules and individualized legislation. Establish the general terms to dominate the whole system of obstruction of evidence. At the same time, type the types of evidence and make specific provision. Pinpoint the parties’ obligation of preserving and submitting evidence. Meanwhile, we should establishment some exclusions to protect the larger interests. Setting the sanctions should place sanctions of private law first, sanctions of public law such as fines second. To choose a specific way of sanctions, the judge should synthesize all sorts of factors such as unfair degree and the violator’s subjective imputation, then choose a appropriate sanction according to the statutory specific procedures.