Research On The System Of Secret Protection In The Order Of The Documents

Evidence of civil litigation is the materials which prove the facts of a case.To prove the facts must base on sufficient evidence,on the premise of which,a fair judgment acquired,and on the foothold of which,the civil disputes resolved.Documentary evidence is one of the most important evidence category,therefor,the collection of it is vital crucial.In civil procedure,although the parties have the obligation to assist the court in finding out the case facts,nevertheless,this obligation can not deny their right of secret protection.If only emphasizing the evidence holder's documents presented duty,and requiring him to submit to the court all the written evidence he has,it will undoubtedly infringe on the civil rights protected by laws,and even is the very disrespect toward the Constitution.During the course of judgment in civil proceedings,there exists the possibilities that the secrets will be leaked incidentally through this process.Consequently,it's necessary to provide secret protection for the special interests.In order to better coordinate the documentary evidence proposed obligation and secret protection,this thesis discusses the civil litigation secret protection system in the order of the documentary evidence in detail,and puts forward several suggestions for establishing the system of secret protection in documentary evidence proposed command in our country.This paper is composed of four parts:The first part is an overview of the secret protection in the order of the documentary evidence.It gives a specific introduction to some basic theories,including the outline of the order of the documentary evidence,the content,nature and the jurisprudential basis of the secret protection system in documents proposed command,and the reasons and significance of the secret protection,etc..The second part is a legislative research on overseas relevant system.As for the system,it involves the question that how to coordinate the secret protection and the civil rights,and simultaneously,submit to the court sufficient documentary evidence.That's a issue worthy of study.This part intends to make a comparative analysis and evaluation to the secret protection for the documentary evidence holder in different counties,such as the United States,Germany,Japan,Korean and Taiwan China and so on.The secret protection system in America includes the Privilege and Protective Orders.Germany's secret protection system involves the secret protection command,the exceptions of the documents put forward obligation,and Geheimverfahren.In Japan and Korean,it covers the exceptional causes of the documents proposed duty,and “IN CAMERA”.In Taiwan China,the right of refusal of presenting documentary evidence provides the secret protection for the documents.The third part introduces the lack of the secret protection in documents proposed command in our country,and explains the causes of it.Specifically,at the first place,this section makes an elaboration and analysis to the current situation of our country's secret protection system,and then analyzes the reasons that lead to the lack of the secret protection in documents proposed command,concerning to three major reasons: traditional philosophy,entity belittles procedure,and the limitation of the judicial conditions.In the wake of the discussion above,the author perceives that only to find out the proper soil that is suitable to the growth of the secret protection system,can we really establish a system that applies to China's legal institution.The last part disseminates the construction of our country's civil litigation secret protection system in documents put forward command.It mainly analyzes the establishment of the system in perspective of the techniques of secret protection,and it divides secret protection into two levels based on the protecting techniques: the absolute protection and the relative protection.The former refers to that the secret protection is achieved by refusing to put forward documentary evidence.In this section the paper further discusses the subject of the right of refusal,and makes a typo-logical study on the exceptional causes of the documentary evidence proposed obligation.The latter indicates that the procedure of secret protection includes the restriction to the general public hearing(the court is not open),and the secret examination procedure(“IN CAMERA”),that is if the contents of the documents applied for presenting involves national secrecy,personal privacy or commercial secrecy,the case will be heard in private session in order to protect those secrets.In the course of documents review,it will easily give rise to the leakage of confidential and private information.In consequence,when it needs to judge whether there exists the situation where the documents proposed command can be rejected,the court,for the sake of protecting the secret contents of the documents,should employ a secret method to review the documents,and no one,except for the secret holder,can participate in this examination procedure including the other parties of the case and the person not involved in the case.