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Research On Pre-trial Evidence Preservation System

Posted on:2017-05-02Degree:MasterType:Thesis
Country:ChinaCandidate:Y M JinFull Text:PDF
GTID:2336330488951145Subject:Law
Abstract/Summary:PDF Full Text Request
The importance of collecting evidence can be reflected in every aspect of the proceedings. Preservation of evidence is an important way of gathering evidence, because of its appeal before implementation, therefore the status of great particularity. Currently, the basic practice of the system point of view, still can not meet the needs of the times progress, far from the social expectations. Based on this, it is necessary to clarify the significance of the system itself. In this paper, pre-trial evidence preservation system meaning, nature and classification were discussed, analyzed the current of pre-trial evidence preservation system of legislation and practice health, think of pre-trial evidence preservation system of the main problems is that pretrial evidence preservation application procedures are relatively inadequate, the preservation of the body over a single, evidence of the effectiveness of preservation after yet, insufficient procedural protection of the rights of the parties and the evidence before litigation expenses preservation program produces provision is not clear, on this basis, put forward relevant improvement measures, including sound Legislative pretrial evidence preservation procedures, improve pretrial evidence preservation body, evidence of the effectiveness of specific preservation after, improve procedural rights of the parties, a clear pretrial evidence preservation program costs, hoping the country to promote the construction and improve the pre-trial evidence preservation system.Article body is composed of four parts. Where in the first part of the talk before the system, including pre-trial evidence preservation system of meaning, nature, and the current through said classification criteria. Explore its meaning and interpretation of its inherent logic. The current system has also been effective practical significance to play, to avoid damage to the interests of the parties, in favor of the rational allocation of judicial resources and improve judicial efficiency. But the pre-trial evidence preservation system in the judicial practice in China, after all, is a young institution, compared with civil law countries, there is still a big gap. The second part is the current status of legislation and practice, and "Intellectual Property Law", "Trademark Law", "Notary Law" as a key to elaborate. While in the field of special laws have relevant provisions and practice typical cases mostly occurred in these areas, but how should it be applied to the whole range of civil proceedings, there is still space to think and discuss. The third part discusses the problems, only the provisions of the Civil Procedure Law has a provision on the application and understanding has ambiguities. The "pre-trial" should be how to define. This behavior occurs before resorting to the law, whether the future will enter the proceedings should be taken into account the lack of expected. "Emergency" should be how to define. In the different events or circumstances, the "emergency" standard yet inconsistent, specific to the case, it is complex, it can not be generalized. Questions like these there are many, to the practice of the system to bring trouble, is not conducive to judicial fairness and efficiency of implementation. The fourth part by the above problems, propose targeted improvement plan. By extraterritorial conduct research, many developed countries, as defined for the first complaint of this system quite advanced and practical. Domestic scholars also insisted that "security function", contrary to the objective trends on the one hand, on the other hand can not meet the prerequisites of justice, more serious consequences can not be achieved "procedural guarantees" requirement, which prompted further expansion of the system.Civil pretrial evidence preservation in the legislation is not mature, In practice, the value of its judicial system after their own sound, to be further explored. However, if blindly stick to the literal meaning of the provisions, pay attention to grasp the flexibility, it may miss the present opportunity to be protected. Therefore, only to improve its legislation in order to better guide people to use this system to protect their rights, this system did not become vacant system, it is not in disarray, disordered state.
Keywords/Search Tags:Pretrial evidence preservation, preservation of the body, procedural safeguards
PDF Full Text Request
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