A Research About The Way To Realize The Compensation System Of Overdue Proof

With the fact that the core loss of proof of the limit of proof in our country is basically replaced by costly sanctions,the overdue proof in civil litigation has basically no consequences for the loss of proof.However,the party who overdue the proof will be punished by the court,and may also have to compensate the other party for the necessary expenses and losses,which is the compensation system for the overdue proof.The system can absorb the dissatisfaction of non-overdue proof parties with the adoption of overdue evidence by the court,and is conducive to punishing and avoiding overdue proofs with justified reasons,thus guaranteeing the effective operation of the degree of limitation during proof.However,it is not uncommon for such a civil lawsuit of procedural law to assume compensation liability of substantive law nature,and the specific operation of the system has no clear legal provisions,resulting in the application of the system in trial practice.Serious confusion,it is urgent to study the realization path of the system.This article combines the relevant theories of tort liability law,adopts empiricalanalysis,interdisciplinary research and literature research methods to comprehensively study the premise,status quo and problems faced in the realization of the overdue proof compensation system.And with the aid of the classification of primary disputes and secondary disputes,primary complaints and secondary complaints,the overdue proof compensation disputes generated in the primary complaints for the resolution of primary disputes are characterized as secondary disputes,and the resolution of the secondary disputes.The litigation is the secondary litigation.Based on this,the realization of the combined trial of the secondary litigation and the original litigation is studied.It is hoped that through the research in this paper,the overdue proof compensation system and the theoretical system of the limitation of proof can be improved,and a theoretical basis can be provided for the correct handling of overdue proof compensation disputes in trial practice.At the same time,we hope to provide theoretical support and reference to trial practice in dealing with other cases of liability for compensation due to the implementation of civil litigation,such as the case of compensation for errors in the application for preservation,and to look forward to such cases in the future.Type research provides reference.The structure of this article,apart from the preface and conclusion,is divided into four partsThe first part focuses on the analysis of the independence and nature of the overdue proof compensation system.One is to analyze the independence of the system from two aspects of status and origin,and determine that there should be an independent realization path for the system.The second is to summarize the views of the academic and practical circles on the nature of the system into three types:the nature of litigation costs,the nature of litigation defense,and the nature of tort liability Based on the analysis of these three viewpoints,it proposes that the content of compensation should be based on different overdue proofs.To define the nature of the system;and to determine that the content of the system has the above three properties,different implementation paths should be appliedThe second part analyzes the chaotic status of the application of the overdue proof compensation system in the trial practice based on the collected 115 related cases.It also divides the practice in the trial practice into two categories:One is the case of handling the original dispute;this kind of practice is to integrate the overdue proof compensation dispute as an integral part of the original dispute,and its characteristics are mainly reflected in the progressive.The four aspects:as a new lawsuit request,does not constitute an independent new lawsuit,can be judged at the discretion of the judge,and the result of the lawsuit can be directly offset.The other type is the case that is not handled according to the original dispute;this type of practice affirms the independence of the overdue proof compensation dispute and its secondary litigation,which mainly manifests in three forms:another case,a counterclaim,and no trial.The third part specifically analyzes the three major problems faced in the process of implementing the overdue proof compensation system.Firstly,in terms of the definition of the subject,it clarified the subject and liability limits of the system in the three special cases of joint litigation,third party participation in litigation,and change of parties.Secondly,in terms of compensation content,the boundaries of the three contents of the system are clarified:the extension of necessary costs,the nature of witnesses 'testimony in court and the nature of the costs of the appraisal,and the circumstances that constitute litigation defense.Thirdly,in terms of applicable procedures,it puts forward the applicable space of the system in three situations:litigation procedure changes,labor arbitration procedures,and commercial arbitration procedures.The fourth part compares and analyzes the two ways to realize the overdue proof compensation system.Firstly,when settled by litigation,two forms of combined trial of secondary litigation and native litigation were proposed:simple merger of unrelated litigation,parallel trial,and distinction between parallel trial and separate trial analysis.Secondly,when it is settled by non-litigation,it focuses on the analysis of two exceptions:litigation offset and non-litigation of litigation cases,and disputes overtime for proof compensation also provide suitable space and practical materials for these two methods.Finally,this article puts forward specific suggestions that can be applied uniformly along the path.