Proof Impairment

There are such problems in fact when suits begin: the people who donot undertake the burden of producing evidence take measures to impairthe people who undertake the burden of producing evidence including:destroy evidence, impair evidence, refuse to produce evidence,in-cooperating with proving etc. In some condition, such behavior leadsto the fact of law in action disproved because the impaired party can notpresent the impaired evidence. However, according to the rule ofdistribute of burden of proof, the party who undertake burden of proofhave to fail the suit. Since un-presenting results from malicious impair, iffailing is the necessary result, the sentence will not be just, furthermore,the impaired party and the society can not accept the sentence. The worstis that legal order will be disturbed because such rule will courage theparty who do not undertake burden of proof to take positive measure toimpair proving maliciously。From the aspect of placing a case on file,there is no institution of prove impairing in civil procedure law, moreover,faults exist in some rules of procedure law which protect the right ofcollecting, investigating evidence so that the party can not protect his ownrights when prove impairing exists. In order to protect party's proceduralright better and preserve legal justice, the author select this topic—proveimpairing.First, the author focuses on all kinds of cases. According to the sameattributes of these problems, the author analyzed the measures to resolvethese problems. Second, from the aspect of theory, the author introducedsome foreign laws. The countries of common law taking German asexample have deep research on prove impairing which includecomprehensive system building and related supporting systems. On basisof foreign laws, according to local fact, the author build system to dealwith prove impairing and related systems in order to build logical systemto protect suit rights of parties just.The preserving proof responsibility of parties, procedure todetermine sincerely proof impairing and punishing system are the coresof system of proving impairing. Firstly, refining preserving proofresponsibility should be written in law and concrete. Secondly,determining prove impairing can be conducted by two ways:un-presenting evidence by violating order of researching evidence andmake interlocutory award when parties apply for determining proveimpairing. Finally, punishing prove impairing on the aspect of public lawcan preserve procedural order. Furthermore, evidence can be determinedaccording to different kinds of evidence. And impairing evidence directlyinternationally and gross negligently which can prove the main fact ofcase will result in prove ability moving to the other party. At the sametime, building pre-suit evidence preservation system, researching ordersystem and improve witness system, judge investigation system are allnecessary.