| This dissertation comprehensively presents the evidence assistance duty and related cases, theories of the common law countries and districts such as German and Janpan from the angle of comparison, checks the defects of the evidence assistance duty and gives some suggestions to Civil Procedure Law.This dissertation comprises of ten parts, including introduction, summary of the evidence assistance duty, documents proposed duty, inquisition assistant duty, witness duty, identification duty, parties interrogated duty, the duty not to do proof-impairment, conclusion and additional suggestions.Introduction The purposes of this dissertation, which wants to build the operating mode of the real adversary system to give the two parties attack-defense method in system protection, so that we should correct defects of the evidence assistance duty to endow them with enough evidence collection methods.Chapter I Summary of the evidence assistance duty Five parts, including the the connotation and significance of the evidence assistance duty, legal forms of the evidence assistance duty, the properties of the evidence assistance duty, the classification of the evidence assistance duty, the performance cost claim of the evidence assistance duty. The evidence assistance duty means parties, who are not responsible for the proof citation, and the third party assist the court to investigate the evidence, the establishment of the evidence assistance duty assure the reality of the verdict and the effectiveness of the adversary system application. The evidence assistance duty includes documents proposed duty, inquisition assistant duty, witness duty, identification duty, parties interrogated duty etc. According to positive law in a broader sense, it also includes the duty of no proof imparing. The evidence assistance duty is the public obligation of the parties and the third party to the court. In theory, the evidence assistance duty can be divided into two parts:the two parties and the third person, witness and material evidence, each kind is benefit. Compired to the public meaning of the evidence assistance duty, the third party has right to performance cost claim to the court.Chapter II Documents proposed duty The content, the tendency, range, trail, verdict and the effect. Documents proposed duty means the parties without the burden of proof and the third party provide the documents to the court as the objection of evidence investigation. According to the foreign law, to correct the constrction of the evidence, documents proposed duty has changed to a common duty. In types, duty document is divided into particular and ordinary which is tried and verdicted differently by the court. When the party breaks the duty, the court always assure the fact of the document be real, when the third party break the duty, he will be faired or prisoned.Chapter III Inquisition assistant duty The contents, characters, ranges, trail, verdict and the effect. It is evidence investigation by the judge according to the five sense organs to feel the fact of the people or the object as the result of the recgonization. In the constrction of the evidence investigation, Inquisition differs. It is constructed by the objection proposed duty and inquisition toleration duty. As the Inquisition is not related to the thought, so its range is bigger, compared to the documents proposed duty. If the inquisition and the documents are both belonged to the evidence methods, so it can be applied to the rule of documention, so as to trail, verdict and the effect of inquisition assistant duty.Chapter IV Witness duty The content of witness, the capbility of witness, the witness duty and the rejection of the testimony. Witness means the parties and third person who provide the fact happened to the court. Because the irreplaceable of the witness, the people who obey the rule have the evidence capbility, no matter the age, intelligence, mental, the relationship with the result. The witness duty inludes:attendence duty, oath duty and testimony duty. Witnesses who don’t perform obligation will be penalized such as they will bear the fees, be fined, be prisoned. Witness’s duty is the general public obligation to the court of the third person, but sometimes witnesses can refuse to make statement to the court which is called testimonial privileges so as to protect the right of witnesses. Testimonial privileges are public right of defense of the witnesses.Chapter V Identification duty The connotation of identification, the qulification of appraiser, status and appointment, the content of identification obligation and ect. Identification means other people expect parties, legal representative who have special experiences state related special knowledge or the evidence investigation of the fact judment based on the special knowledge. In theory, all people who have the necessary knowledge will be qualified for appraiser. Appraiser is the assistant of the judge in the civil procedure, but in nature it is still one evidence method of witness. Because appraiser is replaceble and is the assistant of the judge, so the appraiser will be selected by the court. The identification duty of the appraiser includes three parts:attendence duty, oath duty and statement duty. The sanction of the appraiser is similar to the one of the witness who violet the obligation except compusary attendence.Chapter VI Parties interrogated duty Some issues such as the cannotation, the position in the evidence methods, the capability and the applicable condition, the content, the evaluation. Parties interrogated duty means parties regarding the party as the object state the information and facts and regard the statement as evidence investigation. The statement which is made by interrogated parties and parties as the subject of litigation differ in nature. There is a trend in Civil Procedure Law in common law countries, to admit the independent evidence method and the effective of parties interrogated. Only the nature man has parties interrogated capability, it is no need to have litigation behavior capacity in the interpretation. The supplementary legislation of parties interrogated was banished or weaked. Parties interrogated obligation includes attendence duty, oath duty and statement duty. When the party breaks the duty, the court always assure the fact of the document be real, the court should evaluate the weight of evidence according to the discretional evaluation of evidence.ChapterⅦthe Duty not to do proof-impairment the different legislation example, the validity of the constitutive requirements of proof impairing, the legal effective of proof impairing. As a kind of benefit to adjust the parties evidence proof, impairing is the party without evidence burden, intentional or negligence, dutifulness and undutifulness, impaire the provement of parties with proof burden so they can’t prove the fact. The people who hinder the proof of the fact will be given the unbenifit. For the justifiable basis, the theory of violating honesty principle is better. Not only the the relationship between proof imparing behavior and proof ineffcient condition should be taken as premise, but also ask the damager to break the evidence proposed duty and the action should have liability attribution. For the legal effect of proof impairing, it is more suitble to admit the theory which releases the evidence burden of transformation.Conclusion On the paragraphs above, we get the last opinions of reconstructing the rules on evidence assistance duty in current law.Additional suggestions:advisory legislative aticles concerning about evidence assistance duty As a response to the conclusion based on the preamble, I’ve attempted to draw out the propositional articles about the evidence assistance duty to the legislation. |
