Studies On The System Of Individual Evidences Collection On The Taking Of Evidence Abroad In Civil Or Commercial Matters

The method of individual evidences collection is an important means in civil or commercial matters. The taking of evidence abroad should maintain the public authority of our country, but also it should take the private rights of the parties into account. And the system of individual evidences collection fully reflects the protection of private rights of the parties. In this paper, there is a systematic study on the individual evidence collection with universal perspective. Then, the paper further analyzes the necessity and feasibility of introducing the system of individual evidence collection and tries to put forward the ideas and suggestions of building the system of individual evidences collection on the taking of evidence abroad.This paper is divided into four parts and they have intrinsic logic links in the structure.The first part discusses the characteristics of individual evidence collection method, as well as the theoretical and institutional basis of this method. The system of individual evidences collection on the taking of evidence abroad don’t rely on the international judicial assistance. The subject of evidence collection has private property. And they directly exercise the right of investigation. This system is based on pre-trial evidence discovery system. The theoretical basis is the parties concerned and the interests balance theory.The second part introduces the contents of the individual evidences collection on the taking of evidence abroad system, including the subject, the object and the procedure of evidence collection three aspects. The parties or their agents are the subject of individual evidences collection. The object is the other party of the case, the witnesses, participants in the proceedings and the third person outside the case. Meanwhile, the procedure has a two-way. On one hand, the procedure is a country’s individual of going abroad to obtain evidence. On the other, the procedure is foreign individuals into the country evidence collection.The third part of this paper analyzes the necessity and feasibility of introducing the system of individual evidence collection. Because there are some deficiencies in China’s domestic legal system and the international legal system and the method of individual evidences collection has no legal basis in practice, introducing the system of individual evidence collection is very necessary. Meanwhile, it is coincide with the parties evidence collection system in the domestic civil and commercial cases in China. And it matches with the development of international judicial assistance in China. Last but not least, it coincides with flexibility development tendency on private international law in our country. So the introduction of the system is also feasible.The fourth part of this paper tries to put forward the suggestions on building the system of individual evidences collection on the taking of evidence abroad. In terms of domestic legislation, it should be added to the system of individual evidences collection on the taking of evidence abroad in "Civil Procedure Law of the People’s Republic of China". In terms of the international treaties, we should make supplement in the bilateral judicial assistance treaties which they have already concluded. It will provide the basis for treaty on individual evidence collection activities between the two countries. Finally, due to our reservations about the statement made by pre-trial discovery in “Hague Evidence Convention”, we should make the appropriate adjustments to showing the recognition attitude towards the individual evidences collection on the taking of evidence abroad. In the specific construction of the system, we should pay close attention to the subject, the object and the procedure of evidence collection three aspects.