Font Size: a A A

The Research On The System Of The Order Of Writ And Its Perfection In China

Posted on:2018-01-07Degree:MasterType:Thesis
Country:ChinaCandidate:J Z ShengFull Text:PDF
GTID:2346330515990069Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Documentary evidence collection system is an important part of the evidence collection system.It relates to the whole system of evidence collection,and it is the relationship between parts and the whole.On the one hand,the imperfect and inevitable collection of documentary evidence related system affects the process of the written evidence collecting system;on the other hand,the system defects of documentary evidence collection itself also affects the overall realization of the function of evidence system.this problem also exists in China,which is not conducive to the realization of the right to prove the parties.In civil law countries or regions,the writ is also one of the important means to collect evidence.when the document is occupied by the other party or the third person,coupled with the applicant's application to meet the statutory requirements,and the owner does not exist in addition to foreign affairs from the proposed,the court may order the form requires the owner to propose.not have the exemption from the fact that the court can order the form to require the occupant to submit,thereby enhancing the evidence gathering ability of the client.Based on the theoretical analysis of the order of the instrument,this paper clarifies the source and function of the system.This paper analyzes the problems existing in the collection of documentary evidence in the civil proceedings and in our country at present,analyzes and compares the characteristics of the foreign legislation system,and thinks about the enlightenment to our country.Finally,combined with China's actual and experts and scholars evidence of the proposed draft,we hope to improve the preparation of the relevant provisions of the system of our documents.This paper is divided into four parts to be discussed:Part I: Explaining the jurisprudence of the instrument.Summarizing the basic concepts of the order of the instrument;analyzing the source of the order system,Which is based on the obligation of public law,specifically that is evidence of mutual agreement obligations;To explore the function of the instrument to point to the command,One is conducive to safeguarding the parties "arms equality",the second is to protect the realization of the right to prove the parties,the third is to facilitate the court found the case real.The second part: through the analysis of China's legislative system and the status quo of judicial analysis,summed up our collection of evidence,especially the collection of documentary problems,including:The burden of proof and the lack of procedural rights protection,the judge investigates evidence of lack of motivation,documentary evidence is too absolute and lack of protection of special interests,documentary evidence of legal,operational is not strong and documentary evidence to adjust the scope of the rules are too narrow.The third part: Through the introduction of the unique system design of the instruments of Germany,Japan and Taiwan,the author analyzes the enlightenment of extraterritorial legislation to our country.German legislation is mainly the combination of procedural and substantive law,through the expansion of substantive content to expand the scope of the object of the instrument proposed.Japan legislature establishes the instrument specific procedures and in the camera program,the instrument specific procedure can reduce the party to apply for the instrument when the specific obligations,in camera program to protect the parties secret interests are not disclosed.China's Taiwanese legislation is similar to Japan's legislation,but it is more flexible.The fourth part: Under the revelation of extrajudicial legislative experience,this paper puts forward some suggestions on how to improve the order system of our country's paper by combining the contents of the judicial situation and the contents of the order.The obligation of the instrument should be clearly defined as the obligation of the public law;the scope of the order proposed by the instrument should be expanded,the main body should include the third person,The object should be extended to the general obligation of the instrument;except for the matter should be further improved on the existing provisions;The application procedure should pay attention to the protection of the secret interests;the parties to violate the lessons of the adverse results should be extended to the actual facts of the evidence,and the third party of the sanctions imposed on should be devided due to different stiuations.
Keywords/Search Tags:Collection of documents, instruments to make orders, evidence of the obligation, secret protection
PDF Full Text Request
Related items