A Study On The Function Extension Of The Evidence Preservation Before The Civil Action And Reflection On The German Independent Evidence Collection Procedure

With the rapid development of modern society, litigation explosion and the emergence of modern litigation, forced countries to pay attention to the evidence collection system before litigation reform. The evidence preservation before an action as a special means before litigation evidence collection, naturally became the focus of the reform, countries through the study of the function expansion of evidence preservation before an action to perfect the evidence collection system before litigation, including independent evidence investigation procedure is the most typical representative of Germany. And in contrast, the civil procedure law in our country, at the same time of continuously strengthen party the burden of proof, ignoring the expanding and the safeguard right of evidence collection by the parties, before litigation evidence collection means extremely lack in our country, the civil procedure law in 2012 established the evidence preservation before an action program is currently the only means of civil evidence collected before litigation in our country.But because the evidence preservation before an action in our country legislation lags behind, the evidence preservation before an action in our country still stays in the traditional preserve evidence and fixed on the function of simply cannot completely before litigation evidence collection and function into full play. So, in order to meet the needs of modern society, solve the problem of the lack of evidence collection methods before an action, the author in this paper, for the evidence preservation before an action function expansion, analyzes the basis of investigation procedure and independent evidence to Germany as study object, through to our country conditions and methods for the evidence preservation before an action to loose, so as to expand the method that can collect evidence before litigation, the parties to achieve true evidence preservation before an action to collect evidence and evidence, and other functions, looking for alternative for evidence collection system before litigation procedure.This article is divided into five parts, a total of more than twenty-eight thousand words:The first part of the necessity of the expansion of China's civil evidence preservation before an action function is analyzed. The main reason is that in the face of before litigation evidence collection method of blank in our country, the civil procedure law in 2012 established the evidence preservation before an action program became the only means of evidence collection before litigation in our country at present. However, due to our country for the evidence preservation before an action,the legislation is lagging, make its cannot play before litigation evidence collection and open function.The second part of civil evidence preservation before an action system of traditional functions. Civil evidence preservation before an action is the traditional function of preservation and fixed evidence, it has close relationship with litigation, is to prepare for litigation may happen in the future.The third part of civil evidence preservation before an action function expansion of the realistic basis, theoretical foundation and legislative practice in the survey.Typical representative of the fourth part focuses on the legislative practice, the evidence preservation before an action function expansion of key points: Germany independent evidence of investigation procedure, content, characteristic and the function of the new expansion are introduced in details. The author From Germany in1976 and 1990, analyzed the two civil judicial reforms in Germany independent evidence of the evolution process of investigation procedure, and its applicable condition, procedural matters, effectiveness, settlement and other specific content has carried on the detailed introduction, finally summarizes the independence of the independent evidence investigation procedure in Germany and procedures to strengthen the protection, function characteristic such as diversity, and especially introduces its based on traditional evidence preservation before an action based on the expansion of the modern features.The fifth part, the author analyzes the German investigation procedure independent evidence for perfecting our country evidence preservation before an action program and expand our country evidence preservation before an action function of enlightenment. To reform and perfect the evidence preservation before an action system in China put forward the corresponding suggestion.