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Research On The Application Of Audio And Video Material Evidence In Civil Litigation

Posted on:2018-04-23Degree:MasterType:Thesis
Country:ChinaCandidate:S Y ZhangFull Text:PDF
GTID:2436330536975079Subject:Procedural law
Abstract/Summary:PDF Full Text Request
With the development of society and the progress of science and technology and the improvement of living standards,the electronic technology and other high-tech products have been widely penetrated into people's lives.These technology products bring convenience to people's lives while appear in the court as the unfavorable evidence of the perpetrators.Even more,sometimes they will touch the privacy of everyone's life,which bringing lots of trouble.The Marxist methodology says that "the economic as the base which determines the superstructure".What promoting to make the changes in our laws is precisely because of the emergence of those high-tech products.The audio-visual materials have entered the field of civil evidence as an independent type of evidence since 1982.With the improvement of people's living standard,the popularization of electronic products has made the audio-visual materials application in civil trials in the 1990 s.There have ever been two researching upsurge in our country about the competency of audio and video recording evidence,and there are still many scholars studying it.The study of a method of evidence should be combined with the application of judicial practice to research and analysis,so that can maximize the force of the method of evidence.However,the research on the audio and video recording evidence is discussing the competency of evidence theoretically in combination with the "illegal evidence exclusion rules ".Few scholars have systematically studied for the question of probative force and what the parties and judges concern in judicial practice.For example,how to obtain and submit evidence which corresponding withlaws and regulations better;how to refer to the application when there are no clearly stipulation in the laws and regulations.This paper will use the audio and video data as a whole to analysis and research systematically combining with the judicial cases.The study of the competency of audio and video recordings evidence is mainly related to the "illegal evidence exclusion rules" in civil action.Its essence is about legal eligibility of the audio and video recording evidence which is recorded privately.There are differences in China's theoretical circle for this theoretical problem.There are four main points about it.First is the theory of illegally exclusion.This theory considers that the evidence should have a legitimate attribute,so that the audio and video recording evidence which is recorded privately should be excluded because of illegal collection.The second is the theory of approved.This theory advocates that it is different between the content with the collection method of the audio-visual material,if the content of the audio-visual material is the objectivity and relevance,and can reflect the case actual facts,which should be considered litigation evidence,even if the collection method is improper.The third is the theory of transform.This theory advocates that private recorded audio-visual material should not be deeded legal evidence because of it lacking legitimacy,but it can be a clue for the judicial official,thronging the legal program,it may turn into legal evidence.The forth is theory of exclude add exception.This theory thinks that this kind of audio-visual material evidence should be negated its effectiveness and excluded in principle,but exceptions are allowed.There both have supporters and opponents of those four views,and it is unable to form a unified opinion.While the “illegal evidence exclusion rule” of criminal procedure whether or not should be exist in civil action.And without the agreement of the person who is recorded,is the audio and video materials "illegal evidence" ? In the face of the audio and video evidence frequently appear in court and its vale becoming more and more important,how to collect legal evidence and having an explicit juridical status have important significance in theoretical and practical.Beside of the introduction and conclusion,this paper divides into three chapters.The first chapter is an overview,which briefly reviews the audio and video evidence'srelated concepts and research progress.In the second chapter,the author founds the problems and analysis the causes,which is combined with the supreme people's court in 31 cases of comprehensive research.Based on this,the third chapter puts forward some improvement measures of the audio and video evidence in our country in combination with the foreign countries' rules,the judicial situation of our country.The specific contents of this paper are as follows:The first chapter is “re recognize of the audio and video evidence”.In this chapter it mainly introduces its concept,characteristics,and the difference between the electronic evidence and its current situation in theory research and law in our country.Laws of our country do not classify it as legal evidence clearly,but instead of“seeing” and “hearing” evidence.And in practice,“seeing” and “hearing” evidence often refers to the audio and video evidence.Because there are lots of similarities in characteristics between them,the theoretical circle forms two opposite views: the theory of mutual independence and overlapping.But as the new technology products increasingly abundant,the electronic evidences should cover the content of the audio and video evidence,no matter from practice of the audio and video evidence's preservation,the court display or the attitude change in legislation in our country.Due to the rapid development of science,there appears more and more new technology products,and then the court evidences increasingly become diversified also.In order to specificity it,in 1982,the civil procedure law of our country made the audio-visual material provisions as a legal evidence of independent type,which is the world's first creation.As the methods of taking evidences becoming more and more,the emergence of secret voice recorder,and the Western criticism of our country had no "human rights",the supreme people's court given an official reply in 1995 according to instructions of the high court of Hebei.But this official reply made many problems in practice.Because of this,our country legislate some rules of ? Civil litigation several evidence rules? and ?Civil litigation judicial interpretation? to improve the reply.But due to the inherent defects and law is not clear,and the effective laws and regulations is most about the audio and video recording evidence qualification,while there is few about its probative force.The second chapter is about “Judicial application present situation and cause analysis of the audio and video recording evidence.” There are two sections of this chapter.The first section is the problems of the audio and video recording evidence qualification in the judicial practice.From the studying of the cases,the recognition of the audio and video recording evidence qualifications is very low,and the written judgment of reason is vague,and there is no unified standard in each level of the court,and the same evidence has different qualification in different court.The reason is the lag in legislation and the law is ambiguity and inappropriate use of the illegal evidence exclusion rule in civil action.The second section of this chapter is about the problems of the probative force of the audio and video recording evidence,and reason analysis about the problems.At the procure of case study,the author found that the justice in the judicial practice judge the audio and video recording evidence having little probative force,and they use the rules of the probative force of the audio and video recording evidence is disorder.The reason is:on the one hand,recording information easy to clip forge evidence because of its defects;On the other hand,there is no unified understanding of its juridical status.Based on the above reasons,it is used as subsidiarity evidence materials,and lost its juridical status.The third chapter is "refactoring the audio and video recording evidence apply rules." This chapter is based on the study of the first chapter and second chapter,prose some measures about the use of audio and video recording evidence.In the foreign countries,no matter civil law system or the continental law system,although they have special laws for the audio and video recording evidence and other high-tech equipment t,but they only stipulate their common rues,not put them into an independent type.In terms of the applicable rules,they apply to the material evidence rules or considering as “documentary evidence ",and the inspection system is same to them,too.On the qualification cognizance of the evidence,there are very few countries similar to our country,making use of the illegal evidence exclusion rule as a principle in the civil procedure strictly,while they most was judged by the justices' "conscience" and "theory of experience".At present in our country,the rules of audio and video recording evidence are not clear,and the judicial application unified.Under this circumstance,one the one hand,illegal evidence exclusion rules should be strictly limited or even abolished.The principles of interest balance can be introduced to instead of it.On the other hand,we also should formulate some regulations about the audio and video recording evidence,in order to guiding the perpetrators take the evidence material legally,making sure the material conform to evidence competency,aiming to their claim get support as most as possible.The third side,the Supreme Court can show some typical cases based on the common disputed cases,and point out the rules of the audio and video recording evidence.At the same time,asking the justices put the cognizance process of "thinking" into the judgment documents,in order to reduce the appeal and retrial cases and strengthen the judicial authority.
Keywords/Search Tags:competency of evidence, probative force, illegal evidence exclusion rules, principles of the interest balance
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