Study On The System Of Proof Of Obstruction Of Civil Litigation In China

Evidence is the core of the connection between the parties and the court's litigation activities.From the evidence provided by the parties to the facts founded in the court trials,Litigation proved to be the only bridge that must pass.In order to standardize litigation certification activities,Article 90 of the “Interpretation of the Civil Procedure Law” in China stipulates the general rules of proof responsibility,and the “normative statement” becomes the standard for the distribution of the burden of proof in Article 91.Article 108,paragraph 1 provides for the parties who bear the burden of proof.The standard of proof is "high probability." However,the legislation failed to prevent the “normative” from being criticized as a “formalist” flaw.When the truth of the case is not known,the general rule of burden of proof is not due to the difference in the cause of the situation.To make different imputations,it is imperative to bear the burden of proof that the party responsible for the liability bears unfavorable consequences.However,the common state of civil litigation practice is that the litigation materials are partial to one party,and the litigation subject's litigation ability is obviously different – especially prominent in modern litigation – leading to negative proof of responsibility.Evidence of proof of litigation,but caught in the fact that the truth of the facts to be proved is not clear.If the general rule of proof of liability is used to determine the unfair consequences of the fact that it bears the truth of the fact to be proved,it will restrict the realization of the function of discovering the truth in civil lawsuits and safeguarding fairness and justice.In modern litigation,the pursuit of substantial justice and the protection of the rights and interests of the weak have made it necessary to make up for the deficiencies of the general rules of proof of responsibility under the "normative approach" in order to pursue legitimacy.Based on this,it proves that the obstruction rule emerges as one of the legal techniques of the general rule of replenishment proof responsibility.However,the system is faced with 3 levels of embarrassment in China's civil litigation because of the inaccurate positioningand the lack of theoretical basis:First,from the theoretical perspective,our scholars have different understanding of the theoretical basis,constitutive elements and legal consequences of the theory of obstruction.They are unable to guide the legislation and cannot be applied accurately by the judiciary.This has led to the phenomenon that scholars' differences in opinion have extended to the judicial application of chaos.Secondly,From the legal perspective,the lack of proof of code principle provisions,it only impedes the conduct of litigation order from the perspective of public law sanctions,and does not provide referee rules from the perspective of case adjudication.Although the judicial interpretation stipulates that it is an obstacle to the referee rules.However,there are disadvantages such as being sparse and low in rank.Thirdly,from the judicial practiceperspective,the 2008-2017 referee documents retrieved from the China Judgment Document Network were screened and analyzed.Judges in the judiciary have different opinions on the proof of impediments,“should use but not” and “shouldn't but use” misuse rate is as high as 15.5%.Therefore,basing on solving the dilemmas of these three levels,through examining the relevant regulations and practices of the two major law countries or regions outside the region,from the theoretical basis to the legal consequences regulation,we will provide inspirations for improving our country's certification obstruction and combine with the relevant status quo in China.Put forward concrete suggestions: Take “punishment + relief” as the system goal,determine five theoretical models for building a clear hierarchy;in order to improve the legislation,we can build a principled provision through five steps,rule theblame impediment procedural guarantee and refine specific types of certifications;improve the judge's technical sense and strengthen the judicial public rationality;cultivate a judicial environment of integrity to build the judicial perfection.