Research On The Application Of The Principle Of Common Evidence To The General Co-litigants

In a civil action, in accordance with the principle of common evidence, whether the result of evidence investigation is favorable to the submitter or not, it can be considered as admissible. The application of this principle will contribute to maximize the use of evidence sources, discover the facts and improve litigation efficiency. On account of the deficiencies of theory and the positive law, however, in the general co-litigation, the judges either waste the evidence sources because of no aware of the principle, or just rush to judgment through rashly application. Which not only hinder the application of the principle, but also violate the original purpose of the general co-litigation. According to the principle of common evidence, judges shall have same asserting on same fact, which is the integral requirement of the doctrine of free evaluation of evidence. Due to the involvement of facts or legal relation, there may exist common facts among general co-litigants, therefore, the principle of common evidence is applicable in general co-litigation. If the litigation surprise can be avoided, the principle of common evidence will contribute to maximize the lawsuit value that the common co-litigation pursuing. Based on mainland of China judicature, learning from Japan and the Taiwan region in theory construction and judicial practice, on a purpose of maximizing the use of evidence sources and avoiding litigation surprise, the author puts forward a series of system design in the application of the principle of common evidence to the general co-litigants, so as to deal with the current problems.This dissertation consists of four parts, with the following contents:Part 1, a summary of the principle of common evidence. The author firstly elaborates the connotation of the principle of common evidence based on the the doctrine of free evaluation of evidence, then provides an analysis of common assertion, common evidence application, the principle of debate, and burden of proof theory which are related to the principle.Part 2, the current situation, problems and origin of the application of the principle of the common evidence to the general co-litigants in China. The author introduces the current situation of the principle of common evidence in common co-litigation, including the theoretical basis and judicial practice; then points out that due to the deficiency in theory construction and litigation,ignorance on the principle and rashly application which causes litigation surprise are the main current problems,and confusion caused by the new judicial interpretation.Part 3, the legitimacy of the application of the principle of common evidence to the general co-litigants.The author expounds the feasibility of the application of the principle of common evidence to general co-litigants on grounds of the interaction of general co-litigants, and proposes that great lawsuit value will be realized if the principle can be effectively applied.Part 4, foreign experience about the application of the principle of common evidence to the general co-litigants. By analyzing the experience in theory research and judicial practice of Japan and Taiwan in China, based on China's judicature, the author presents that China should adhere to the limited affirmation theory as theory guidance, and agrees to guarantee the defense right of relative litigants.Part 5, ideal system design of the application of the principle of common evidence to the general co-litigants. In order to maximize the use of the evidence sources and avoid litigation surprise at the same time, the author presents a series of targeted system design, including setting specific precondition of the application, guaranteeing the litigants' procedural protection, disclosing judges' free evaluation of evidence in the litigation and verdict. In the end, the author put forwards a solution to the situation that the “facts being proved ” is not common facts.