Study On The Authenticity Of Private Document Certificate

Article 92 of the Provisions of the Supreme People’s Court on Evidence in Civil Proceedings,which came into force on May 1,2020(hereinafter referred to as "Provisions on Evidence")clearly uses the concept of "private document certificate" for the first time at the normative level.In addition,it provides clear rules for bearing the burden of proof on the authenticity of private documents(Paragraph 1),judging the authenticity of forms(paragraph 2)and identifying defective private documents(paragraph 3)respectively.This regulation highlights the increasing attention of legal norms to private document certificate and also emphasizes the particularity of private document certificate which is different from official document certificate.In the background of the increasingly prominent independence and importance of private documents,theoretical research should be followed up in time.From the theoretical perspective,the clear definition of concept connotation and extension is the basic requirement of formal logic.The concept with unclear connotation will inevitably lead to the difficulty of accurately grasping it and forming definite rules for strict application.The first chapter of this paper clearly defines the connotation and extension of private document certificate.Private document evidence is classified according to the different production subject.Strictly speaking,there should be an either-or relationship between official document evidence and private document evidence,but there can be no intermediate type.Therefore,the clear definition of the connotation and extension of private documents depends on the grasp of the scope of documents to a certain extent.In this regard,this chapter starts from the main elements,formal elements and procedural elements to analyze document evidence,and then believes that private document is a document other than public document,which is called private document evidence when it is used as evidence.However,due to the complexity of social life,the diversity of civil activities and the richness of private documents,there are often disputes over the nature of common documents such as opinions issued by self-entrusted authentication and certification materials issued by units in judicial practice.This paper makes a detailed analysis of this and excludes it from the scope of private documents.The second chapter of this paper makes clear that the authenticity of private documents does not apply to the burden of proof theory but should be adjusted to the specific burden of proof.Although Article 92(1)of the Provisions on Evidence clearly states that the burden of proof should be borne by the party who presents the private document to prove the facts of the case.However,the specific reference of the word "burden of proof" in this regulation has caused the controversy in the academic circle on the mode of proof of the authenticity of the private document and formed two different views on the theory of burden of proof and the theory of concrete burden of proof.Scholars who advocate the idea of applying the burden of proof to the authenticity of private documents mainly analyze their claims from the perspective of concept analysis and fact classification.Scholars who advocate the application of specific burden of proof believe that the authenticity of private documents belongs to auxiliary facts,which should be freely evaluated by judges without uniform distribution rules.The basis of the burden of proof is to deal with the deficiency of the criterion of judgment,the essence of the burden of proof is the applicable method of law,and the applicable object of the burden of proof is limited to the essential facts.In fact classification theory,it belongs to the auxiliary facts freely evaluated by the judge.Therefore,it should belong to the domain of specific burden of proof and adjust and standardize the proof activities of the parties.Under the theory of specific burden of proof,there is no uniform and absolute distribution rule for the authenticity of private documents,but it is situational dependent,which needs to be analyzed and judged by the judge according to the case situation.Although Article 92 of "Provisions on Evidence" is mainly about the authenticity of private documents,it is mainly about the probative power of evidence,whether it is the practical viewpoint mainly represented by the Supreme People’s Court or academic research.In fact,there are three-point model and two-point model in civil law countries and regions.The three-point model,with Germany as the main representative country,juxtaposes the authenticity of the document with the formal and substantial evidentiary power of the document and emphasizes its independence.The dichotomy model,with Japan as the main representative country,does not emphasize the independence of authenticity,but mainly discusses the authenticity of instruments in the form of proof.The mainstream views of Chinese theoretical circles advocate that we should draw lessons from and adhere to the dichotomous mode and distinguish only formal and substantial evidentiary power.However,there are different understandings among scholars on the specific content and two viewpoints are formed,namely,the theory of identity and the theory of inclusion,which makes this problem more confusing.In order to avoid the confusion of language and pay attention to the importance of authenticity in private documents,the authenticity system should be divided into formal authenticity and substantive authenticity,and the ways of proving and identifying the two are discussed respectively.Formal authenticity emphasizes the authenticity of the production of private documents,while substantive authenticity emphasizes the authenticity of the content of private documents.The two have different directions and contents.Article 92 of the Provisions of the Supreme People’s Court on Evidence in Civil Proceedings,which came into effect on May 1,2020(hereinafter referred to as "Provisions on Evidence"),clearly uses the concept of private document evidence for the first time at the normative level and provides clear rules on the burden of proof for the authenticity of private document evidence,the true judgment of form and the identification of defective private document evidence.This regulation not only emphasizes the particularity of private document certificate,which is different from official document certificate,but also highlights the increasing attention of legal norms to private document certificate.In the background of the increasingly prominent independence and importance of private documents,theoretical research should be timely followed up.From the theoretical perspective,the clear definition of conceptual connotation and denotation is the basic requirement of formal logic.The concept with unclear connotation will inevitably make it difficult to accurately grasp it and form definite rules for strict application.Based on this,the first chapter of this paper clearly defines the connotation and extension of private document certificate.Private documents are classified according to different subjects.Strictly speaking,there should be an either-or relationship between official documents and private documents,but there can be no intermediate type.Therefore,the clear definition of the connotation and extension of private documents depends on the grasp of the scope of documents to a certain extent.In this paper,the document document from the main elements,formal elements and procedural elements to analyze the document,A private document is then considered to be a document other than a public document and is called a private document certificate when it is used as evidence.However,based on the complexity of social life,the diversity of civil activities and the richness of the types of private documents,the opinions issued by self-entrusted authentication and the certification materials issued by the units are often common in judicial practiceThe third chapter mainly discusses the proof path of seal authenticity and the definition of the nature of presumption norm in the formal authenticity of private document.Throughout Article 92 of the Provisions of Evidence,the term "truth" is used many times,but it is not clear whether it specifically refers to formal truth or material truth.According to the opinions of the Supreme People’s Court on this article and the classification theory of the authenticity system of private documents,the presumption of signature,seal or stamp in the provisions of Paragraph 2 can only be formal authenticity.This is because the essence of formal authenticity lies in determining whether the document is made by a specific person and is authentic rather than forged.The signature is the main sign of the identity of a specific actor,but it cannot be determined from this categorically the inner truth of the actor.The establishment of the standard of presumption of authenticity in the form of signature and seal of private documents not only provides a convenient channel for the parties to provide evidence,but also facilitates the judge’s examination and identification.However,the premise and basic condition of the correct application of the presumption norm here is that the authenticity of the signature is proved by the party who proposes the private document.In a broad sense,there are three main ways to prove the authenticity of the seal: checking the handwriting,witness testifying and judicial authentication.However,compared with signature and fingermark,the use of official seal in practice is more complicated,and the determination of related issues first needs to clarify the criteria for the true official seal,which mainly includes three criteria: consistent with the official seal for record,consistent with the reserved seal,ever used or recognized by the nominal person of official seal.Under normal circumstances,the private document certificate should be presented by the party to prove the authenticity of the seal,but in the case of recognition by the other party,the private document certificate has been registered,certified and notarized,there is no need to prove.In the case of obstruction of proof,the application of obstruction of proof system can realize the relief to the parties concerned and further realize the recognition of the authenticity of the form of private documents.The fourth chapter mainly discusses the relationship between the seal and the actual truth of the private document.Unlike producers who focus on formal truthfulness on specific private documents,substantive truthfulness aims to find out the authenticity of the recorded content.Constructive norms build a bridge between signature reality and formal reality,but it is difficult to establish a relationship between signature reality and substantive reality.There are many kinds of official seals and there are often two or even more sets of official seals engraved by legal persons in judicial practice,which leads to the denial of the authenticity of the content recorded in private documents by different defense reasons,such as the false seal,the right to use the real seal and the invalidity of the fake seal.Based on this,from the perspective of judicial practice,this chapter divides the defense of official seal into the defense of true or false seal and the defense of official seal effect,and divides the latter into two categories: the defense of true or false seal effect and the defense of false seal effect.The influence of the real or false seal on the burden of proof and the content of proof is discussed respectively,so as to realize the system connection between the type of defense of official seal and the substantive truth of private document.The fifth chapter mainly discusses the scope,identification and elimination of defects in private documents.The discussion of formal truth and substantive truth is based on the integrity,clarity and no defects of private documents.However,under the influence of various subjective and objective factors,defects in private documents are common and common,which not only affects the smooth realization of the parties’ proof activities,but also makes the judge’s activities of examining and identifying evidence blocked.For a long time,due to the lack of legal basis,the concept and scope of defects can be widely referred to in practice,which makes the practical and theoretical circles have a confused understanding of the scope of defects in private documents,and the definition is different.Article 92(3)of "Provisions on Evidence" provides a normative basis for the defects of private documents and basically ends the academic controversy,but the problems related to the defects of private documents have not been solved once and for all.Based on the existing regulations,this chapter analyzes that the defective private document is the destruction of the integrity of the existing private document carrier and the alteration of the authenticity of the description content.Furthermore,it argues that the main criterion for screening carrier defects of private documents should be integrity,while the main criterion for screening content defects should be authenticity.The elimination of defects in private documents is by no means a simple problem,but should rely on the rationality of the parties’ interpretation,the degree of defects,the causes of defects and the expectation possibility of the parties to take reasonable actions to make a comprehensive judgment.The sixth chapter mainly expounds that the free heart evidence should be regarded as the system choice of the authenticity identification of private document evidence and the judge’s freedom of evidence identification should be realized through the restriction of internal and external factors.Another important aspect of whether the private document can play a role in proving the fact of a case is the judge’s examination and identification activities.In the main countries and regions of the civil law system,free heart evidence is regarded as the institutional principle for judges to examine and identify evidence,but this evidence system has experienced a lot of questions and criticisms from its emergence to development.Whether the free heart evidence system has been established in our civil procedure has been very controversial,which mainly form the positive,negative and mixed opinion.However,there are still many scholars who believe that part of the provisions at the level of legal norms have reflected the spirit of the free heart certificate system,which is consistent with its substance.It should be said that the free heart certificate system has been established in our country.Free heart evidence does not allow judges to judge freely and arbitrarily but should follow certain rules,so it is necessary to explore the factors that restrict it.From the perspective of internal constraints,there are the following aspects: the compliance of logical rules,the restriction of empirical rules,the internalization of judges’ professional ethics and the objectification of the degree of psychological evidence.In addition to the internal restriction,it also discusses the external restriction of evidence adjudication standard,procedural regulation,legal evidence rule and open heart evidence.It should be said that only under the combined action of internal and external factors can free heart syndrome really play its role in identifying evidence and facts.The discussion and clarification of such issues as bearing the burden of proof of private documents,classification of authenticity system,formal and substantial authenticity proof,definition and screening of the scope of defects,as well as identification based on free heart proof,will not only help to form a systematic understanding of the authenticity proof and identification of private documents,and enrich the depth and width of evidence theory.It is also helpful to provide a more clear and detailed set of rules for the authenticity identification of private documents for judicial practice through theoretical research,so as to realize the two-way development and positive interaction between theory and practice.