On The Elements Of Loss Of Evidence

Prove invalidity in China is an ‘imported product',which has not been introduced for a long time and is still in the exploration stage.How to realize its localization is very important.Our evidence loss of authority is advancing in the exploration,slowly developing from ‘evidence of evidence at any time' to ‘strict evidence of loss of power'.Later,following the requirements of social progress,it has developed into ‘evidence of evidence in time'.To an absolutely relaxed course of change.Although our country has also repeatedly improved the provisions on the lack of evidence in order to adapt to the local environment,the operability of the lack of evidence has not been improved in practice.The first chapter of this article raises questions.The main problems are reflected in three aspects: the existence of evidence of loss of authority,the vagueness of elements,and the low threshold of new evidence.How to find the balance between fairness and justice between procedures and entities and adjust the relationship between the two is the purpose of this article.The author insists on lenient and moderate evidence loss,and believes that standardizing the identification of evidence loss is an overly general good policy Increasing the threshold for the "new evidence" determination will help change the current situation of too lax evidence deprivation and make the system's procedural facilitation effect.This article analyzes the general requirements and special identification criteria for evidence loss through the ‘Disputes on Cooperation Agreement between an Investment Information Company in Beijing and Cheng',and presents the study of the evidence loss clearly in the form of case statistics and thinking diagrams.The second chapter analyzes the limits of the prove invalidity.The author believes that our top priority is to adjust the current system of power loss to make it more lenient and moderate.The goal is to establish a system of evidence power loss based on the principle of power loss without exception.In the process of looking through the literature and searching for cases from the Internet,the author found that China's evidence-losing-rights system exists in name,and is in the predicament of being scattered in many laws and lacking standardized identification requirements,although there are specific regulations,especially in 2015.The promulgation of the Civil Procedure Law adopted ‘relevant to the basic facts' as the criterion for the adoption of overdue evidence,which led to the exception of the loss of power in practice,instead of becoming a principle without loss of power..After studying the relevant literatureat home and abroad,the author believes that to solve this embarrassing situation,the current system of evidence loss should be adjusted to make it more lenient and appropriate,and to balance people's desire for fairness and justice in the entity and the desire for justice in the process.The third chapter is the core chapter of this article.Evidence loss of rights involves the parties' substantive rights.Improper use can easily damage substantive justice and must be treated with caution.This needs to standardize the deprivation requirements to facilitate the actual operation of the judge.The author proposes that the identification criteria should be limited from the three aspects of subjective requirements,subjective imputability and objective requirements under the prerequisites of recognition.Among them,the obligation to promote litigation is The prerequisites for the loss of evidence.In addition to the parties responsible for the burden of proof,the parties who are responsible for proving evidence should also include those who are not responsible for the burden of proof.The subjective attribution should be determined objectively.There are three requirements for delayed action,delayed proceedings,and a causal relationship between delayed action and delayed proceedings.Delayed action is the prerequisite for the existence of evidence infringement.Improper behavior will be punished with adverse consequences.Delay is the reason for giving power.The power loss system is to promote lawsuits and prevent delays in lawsuits.The causal relationship between the first two elements is the link between the sanction of a certain behavior.The last chapter explores the threshold of entry for new evidence,and supplements the elements of evidence loss.Too low overdue threshold for entry of evidence leads to the loss of evidence,which can not serve the purpose of procedural economy and deviate from procedural justice.Increasing the threshold of new evidence is a requirement of the principle of good faith and maintaining the authority of judicial rulings.First,the general litigation promotion obligation should be determined in accordance with the ‘hierarchical arrangement theory'.The special litigation promotion obligation can be determined in accordance with the specific provisions of the law.Second,the ‘new evidence' category should be narrowed down and the objectivity should be emphasized.Find out which overdue evidence is ‘relevant to basic facts' based on the value of the evidence,not the subject matter of the suit.This article starts from three aspects: limits,identification requirements and new evidence.It adjusts the current system of evidence deprivation and adheres to the criterion of ‘deprivation of power as the principle,without deprivation of power as an exception'.This system makes the system more lenient and appropriate.The desire for justice and the procedural desire for justice.In order to solve the current dilemma,this article discusses the current situation of the system of evidence deprivation and the problems existing in our country,the dispute over the existence of evidence deprivation,regulating the identification of the deprivation of authority,and raising the threshold for the identification of new evidence.Research ideas,trying to make a small contribution to the development of evidence loss in China's civil procedure law.