China's Foreign-related Civil And Commercial Evidence Of Extra-territorial Forensics System

The dissertation deals with "On the study of the problems of foreign evidence". Foreign evidence is the fact which has the foreign elements to prove the truth of the case. The problem of foreign evidence is one of the important and complicated issues in the international civil procedure law. With the development of civil and commercial matters, we meet more and more foreign-related cases. How to obtain the evidence in foreign countries and how to apply them in the case is a big problem we must deal with. Moreover, Continental country and British-American country have their own legal systems to take and apply the evidence. How to harmonize and unify the different legal systems is also a crucial issue. Therefore, by introducing, explaining and contrasting different countries evidence law, the dissertation, by analyzing the Hague convention on the taking of Evidence Abroad in Civil or Commercial Matters, aims to improve mutual judicial cooperation and to establish various mechanisms to gather evidences in the territory of a foreign state without offending state sovereignty, and it also gives some ideas on how to apply evidences in cases. The dissertation is divided into four parts:First, the author illustrates the reality of taking evidence abroad about foreign and commercial Matters. The author tells us the basic theory about the foreign-related evidence. In macro view, the goal of the foreign-evidence system is to realize the social fairness and justice, to keep the balance of the interests of the parties in the international litigation. In micro view, the application of the foreign evidence has the closest connection with the litigation right of the party, playing an important role in the reasonable solution of the foreign-related cases.The dissertation highlights the taking evidence abroad and the application of the foreign evidence rules. The former is divided into direct trend and indirect trend. There are three ways in direct trend, that is, to take evidence by diplomacy and consular, by commissioner and by party and his/her agent. Indirect trend is to appoint the court or some organ to investigate and take evidence in the country where the evidence is located. Generally speaking, the ways to solve the conflicts of the evidence law are as followed: 1. governed by the law of the forum. 2. governed by the civil applicable law. 3. governed by the law of the place where an act was done.The second, introduces the 1970 Hague Convention whose function is to unify and harmonize the system of gathering evidence in transatlantic litigation in civil and common law country. Moreover, in the field of taking evidence abroad, most disputes arise from the American pre-trial investigation procedure. According to the way United States adopt to protect their own judicial sovereignty, each state refuses to apply the procedure in their country. Therefore Article 23 of the Hague Convention on Evidence provides an option for Contracting States not to permit the execution of letters of request issued for the purpose of obtaining the pre-trial discovery of documents.However, every country takes different attitude to the reservative extent to which understanding of the content and application in domestic country. United kingdom doesn't restrict the pre-trial discovery normally, but it has strict demand of the concrete and relative of the discovered documents and material which is the same as the attitude of the France and Germany.The traditional view in the United States has been to interpret the convention as an optional means to be implemented in parallel with procedure provided in theFRCP. On the other hand, European continental states refer to their genitive concept of judicial sovereignty, which implies that any foreign evidence which is taken on their territory without applying convention procedures violates judicial sovereignty of the state.Recently, the hallmark of the new trend in the United States appears to give priority to the employment of the Hague convention on Evidence in instance of international litigat...