Research On The Improvement Of Chinese Civil Spoliation Inference

In order to regulate the spoliation of evidence, many countries have propose some related theories, like conversing the burden of proof, reducing evidential test of the fact, presuming the claim to be true, coercive measure and made the corresponding legislation. The spoliation inference is a measure of regulating the spoliation according to the theory of presuming the claim to be true. The spoliation inference, as an antiquated measure of regulating the spoliation of evidence, has two outstanding characteristics, on one hand it reflects on the remediation which makes one party recovery the weapon against the other party in the aspect of proving; on the other hand, it reflects on the severity which means it is a severe punishment to the party comparing to the other measures. In addition, the function of realization of the litigation economy, distribution of the responsibility to provide evidence fairly and reasonably, avoiding the deadlock of litigation, make it popular to many countries.There are two judicial interpretations which include the spoliation of inference in our country. However, the related items are still belong to the extensive legislation and owns a lot of problems, unclarified definition of the subject, unspecified application condition, incomplete result, and the oversized power of judge. All these problem not only make the rules less functional in the practice, but also lead to the confusion in the process of application. Therefore, it is very necessary to put forward some suggestion to the legislation, so that make the rule play a real role in the regulation of evidence spoliation.For this paper, I start with the connotation of the spoliation inference to make the concept clear, clarify its nature as a measure of regulating the spoliation and presumption. Besides, I give a detailed introduction to its characters and functions. For improving the application of this rule, I offer some suggestion. First, we should clarify who could be the subject of the spoliation inference. The subject should include the third party with independent claim whose position is the same as the plaintiff. At the same time, I suggest to clarify that the party who bears the burden of proof should be the subject of the rule to urge it provide evidence. In the aspect of improving the applying conditions, it is recommended to let the legislative illustrate that the proof provided by hindered party should be with high degree of probability, while not need to reveal the content of the hindered proof; due to the target of remediation and litigation economy, the hindered proof should be with the quality of high degree of probability or uniqueness; to clarify what behaviors could be applied to the spoliation inference, we should classify the hinder behavior. In order to incomplete result of the stipulation, it’s necessary to add the choice that presuming the fact claim of hindered party should be approved and clarify in which condition the result should be applied. At last, I suggest the discretionary power of judge should be limited through the certain application and the publishment of judge’s free evaluation. I hope that through the improvement of Chinese civil spoliation inference, the hinder behavior should be regulated appropriately, so that the parties could truly own the remediation and justice from procedural law.