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Historical Changes Of Time Limit Of Proof In Our Country

Posted on:2017-02-16Degree:MasterType:Thesis
Country:ChinaCandidate:W J XuFull Text:PDF
GTID:2296330482993985Subject:The civil procedure law
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The Supreme People’s Court issued The Interpretation on the application of People’s Republic of China Civil Procedure Law. The interpretation of Article 99-102 make the Article 65 of Civil Procedure Law detailed and provide operational guidance for judicial practice. Limitation of Proof of judicial interpretation has some innovation on both the length on adducing evidence and the legal consequences of overdue proof. But the system is too loose to lead to decoupling between late proof and Proof-Losing-Right. The behavior of adducing evidence over the period will abound, which is contrary to the original intention of the system design. Throughout changes of Time Limit of Proof, it had gone through three stages: from "Proof-Losing-Right in principle" to "Proof-Losing-Right according to judges’ discretion", to "Proof-Not-Losing-Right in principle". The changes of the system on adducing evidence can provide reference for the improvement of the system and exploring its realistic way in the future. There will be a balance between strict system and loose system in the future.In the 1990 s, China was still in the period when the evidence can be adduced at any time. The reform of trial mode had just begun. Drawing lessons from the adversary litigation mode, evidence rights of the parties was established soon. So party’s ability on adducing evidence is limited. Moreover, giving up entity justice for pursuing procedural justice is not in conformity with Chinese traditional, emphasizing the entity and despising the procedure. So the system of time limit on adducing evidence had not yet established in the nineties of the 20 th century. In 2001, The Supreme Court carried out The Several Provisions on Evidence in Civil Proceedings.The provisions of Article 33 and 34 formally established the time limit of evidence production. The system of time limit on adducing evidence includes two aspects: one is the determination of adducing evidence; the other is the effect of not providing evidence on time. This article focuses on the latter. The Several Provisions on Evidence in Civil Proceedings adopt the strict system on Proof-Losing-Right. That isto say, the legal consequence of Proof-Losing-Right is a principle and not losing right is an exception. But the rigorous system on Proof-Losing-Right only has two types of processing: losing right of proof or not losing, lack of transition segment. It seems to be too harsh to parties on the transition period between adducing evidence at any time to time limit of adducing evidence. People cannot accept the system of Proof-Losing-Right. And the judge’s attitude is also not optimistic. The use of the judicial practice of Proof-Losing-Right on each court is not identical. In order to give attention to both entity justice and procedural justice, considering the acceptance of the parties, some Provincial High Court explored the correction of the system of Proof-Losing-Right. In 2008, The Supreme Court carried out The Notification of Time Limit Rules on Adducing Evidence in The Several Provisions on Evidence in Civil Proceedings. The rigorous system on Proof-Losing-Right was modified. The Civil Procedure Law in 2012 formally established the time limit system of evidence in the form of the basic law. It revised the legal consequence of exceed the time limit of proof, making the rigor system become easier. In a sense, it is the turning of the original system, so we call it “Proof-Losing-Right according to the judge’s discretion”.In practice, judges tend to focus on fair entity, so that the overdue evidence does not lose the right, which makes it suspect the existence of decoupling between the late evidence and consequences of losing right. The Article 65 is too simple and lack of operability.The Supreme Court promulgated judicial interpretation to compensate for this vulnerability. Judicial interpretation by the provisions of Article 99-102, provided detailed provisions and makes the Article 65 of the Civil Procedure Law operable.However, to some extent, the Legal Interpretation issued by the Supreme Court broke the Civil Procedure Law in 2012 on Time Limit of Proof. The starting point of the period changes on the submission of evidence. And there are three situations in determining the length of the period: Procedure of First Instance, Procedure of Second Instance and exceptional circumstances. On the legal consequences of overdue proof, it adopt hierarchical approach, considering the objective reasons and subjective psychological state of the parties who are late on adducing evidence,which makes the system of Proof-Losing-Right more loose. To some extent, that is called "the principle of Proof-not-Losing-Right”. Too loose system ofProof-Losing-Right leads to decoupling between late proof and Proof-Losing-Right,which is contrary to the original intention of the system design. Along with the advancement of the rule of law construction, the improvement of legal environment,we will find a balance between strict system and loose system in the future. And this is a process.
Keywords/Search Tags:Time Limit on Adducing Evidence, Proof-Losing-Right in principle, Proof-Losing-Right according to judges’ discretion, Proof-Not-Losing-Right in principle
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