Legal Regulation Of Evidence Collection In Civil Traps

As a special way of obtaining evidence,civil entrapped evidence collection can make up for the deficiencies of the parties' ability to obtain evidence and protect their legitimate rights and interests.Meanwhile,it plays an important role in cracking down illegal acts and safeguarding social fairness and justice.However,the civil entrapped evidence collection itself is extremely infringing.If it is abused,it can easily infringe upon the legitimate rights and interests of others and become an important means of malicious litigation or a powerful weapon against competitors.And then lead to the disorderly competition and social disorder.At present,our country's law does not have a clear stipulation on civil entrapped evidence collection.Our country's civil procedure jurisprudence is far from enough for its research.Most scholars only study it as part of the exclusionary rule of civil illegal evidence,and most are limited to their classification.In the judicial practice,the judge's theoretical knowledge is far from it.The infringement of the legitimate rights and interests of the parties is often overlooked.Based on the theory and practice,based on the practical analysis,this paper conducts a deep research on the theory of civil entrapped evidence collection in order to regulate entrapped evidence collection in our country through constructing the system of Chinese civil entrapped evidence collection and corresponding supporting measures.This paper is divided into five chapters besides introduction and conclusion:The first part introduces the origin of civil entrapped evidence collection.First of all,through the introduction and analysis of the second instance civil judgment in the case of the trademark dispute between Wei Ma Tai Co.,Ltd and Tong Hui Xin Co.,Ltd,the author introduces the problem of malicious inducing of evidence collection and leads to the necessity of the legal regulation of civil evidence collection.By tracing the source of civil entrapped evidence collection—Temptation Investigation,to make a definition of civil entrapped evidence collection in the analysis and comparison,clarify the position of the evidence and its meaning in the comparison between the evidence obtained by the civil entrapped evidence collection and the evidences of the illegal ones and the flaws.Finally,in theory,to classify the entrapped evidence collection,deny malicious induction and affirm this way by providing opportunity for obtaining evidence.The second part analyzes the judicial status of China's civil entrapped evidence collection.Through the data analysis and comparison of 162 referee documents,it is found that in the judicial practice,the court has not paid enough attention to the party's malicious evidence and has decided mechanically and ignored the protection of the fundamental rights of the parties.The main problems are as follows: Firstly,the scope and limits of the parties' evidence collection lacks specific procedural constraints;secondly,the discretion of judge lacks the necessary supervision due to the standard of the judicial discretion is vague.The third part introduces the theoretical cognition differences of the civil entrapped evidence collection.Mainly including the three doctrines that is affirmative,negative and eclectic said.In the view of affirming the entrapped evidence collection,they think that the way of obtaining evidence can make up for the lack of the ability of the parties to collect evidence,play a deterrent role in the illegal activities,safeguard the fairness and justice of society,and improve the efficiency of lawsuits.Denied said that the entrapped evidence collection go against the law purpose of punishment,disturb social order and damage the personal rights of citizens and social public interests by using human's weaknesses.Neutral said that there is a necessary to distinguish between the malicious induction and the providing opportunity for obtaining evidence.The author agrees with neutrality,but at the same time advocate for providing opportunity for obtaining evidence also has a strict process control.The fourth part focuses on the theory and practice of the evidence collection of civil traps in countries outside Germany,the United States,the United Kingdom and other countries.In the fifth part,the author puts forward his thinking on regulating the evidence collection of civil traps in our country.First,making the concrete system design to our country's civil entrapped evidence collection,including establish the basic principles,establish a registration system for filing cases,establish a system of full participation by notary organs and lawyers and unify judge's judgment standard.The second is to improve relevant supporting measures by safeguarding the parties' right to obtain evidence,establishing corresponding evidence reinforcement rules and strengthen the party's consciousness to get evidence.