Reflection And Amendment On Evidence Preservation In Civil Pre-litigation

Pre-litigation evidence preservation refers to a procedure in which interested parties(potential litigants)apply to the court for help in collecting evidence in a fixed manner before the lawsuit is filed,so as to protect the realization of their right to collect and prove evidence before the lawsuit.With the reform of the modern judicial system,in order to cope with the shortage of litigation resources and improve the efficiency of litigation,various countries have focused on enriching the means of evidence collection for parties,giving the evidence preservation procedure an independent status,and shifting the focus of the system to pre-litigation evidence preservation.The purpose is to make the parties approach the evidence as soon as possible,weigh the advantages and disadvantages of resorting to litigation,and then make a rational choice of whether to litigate,so as to achieve the effect of preventing and promoting litigation.The pre-litigation evidence preservation procedure has both litigious and non-litigation attributes.The litigious attribute determines its pursuit of procedural justice,and the non-litigation attribute determines its pursuit of procedural efficiency.The traditional function of pre-litigation evidence preservation is limited to fixing and preserving evidence,while the modern function emphasizes determining facts,revealing evidence and resolving disputes outside the case.Although my country added a pre-litigation evidence preservation system in the Civil Procedure Law of 2012,and successively made detailed provisions in judicial interpretations.However,from a macro perspective,there are still problems such as the misalignment of the functions of general law and special law in pre-litigation evidence preservation,and the methodological error of "applicable by reference" property preservation.From a microscopic point of view,the specific procedural rules such as jurisdiction,application,guarantee,adjudication and effectiveness of evidence preservation in civil pre-litigation also have problems such as ambiguity and poor operability.The need for pre-litigation preparation.This paper systematically sorts out and summarizes the relevant systems inside and outside the region,combined with factors such as my country’s social background,litigation structure,and value concepts,and advocates that my country’s pre-litigation evidence preservation procedures should be localized by taking the German independent investigation procedure as a sample.First,the independent status of pre-litigation evidence preservation in the civil litigation system and judicial operation should be established,and it should be clarified that pre-litigation evidence preservation is not necessary to initiate the litigation of this case,and its attachment to the litigation of this case should be cancelled.In this way,the modern functions of the pre-litigation evidence preservation system in terms of evidence collection,confirmation of facts,promotion of litigation and prevention of litigation will be activated,and a procedural form of diversified dispute resolution will be realized.Secondly,in order to build a strict and reasonable legal norm system,the relationship between the general law and the special law of the pre-litigation evidence preservation system should be straightened out,and the provisions of Article 84(3)of the Civil Procedure Law should be abolished.Finally,on the basis of the current law,it tries to put forward a specific revision plan of the pre-litigation evidence preservation procedure in our country.The first is to add the pre-litigation evidence preservation of the mutual consent type and the determination of the state of things and things to realize the diversification of dispute resolution;the second is to unify and refine the application,guarantee,jurisdiction,ruling and other procedural rules for pre-litigation evidence preservation.The validity of the evidence obtained in the procedure;the third is to implement the concept of procedural safeguards,respect the procedural participation rights and procedural relief rights of the parties and third parties outside the case,so as to realize procedural justice.