Research On The Use Of Party Private Record Evidence In Civil Procedure

As the development of science and sound&video recording technology, it is getting easier for party to obtain evidence privately. The use of private record evidence gets increasingly widely in judicial practice. However, because of the defects in the evidence obtaining way, the evidence is easy to infringe others’ legal rights and interests. So there is huge controversy in practice. Although some related laws provide applicable standards for the evidence, these standards have many shortcomings. There are many problems when applied in practice. From the view of the evidence’s validity and legality, this article is trying to discuss the validity of the private record evidence and put forward my view of how to improve the use of private record evidence in practice.Private record evidence implies the evidence which obtained by citizens, organizations and legal persons outside of the state organs on the condition that the party doesn’t know or without the consent of the party. According to the classification of the evidence from The Civil Procedure Law, we divide the evidence into private record audio-visual material and private record electronic evidence. According to the obtaining way, we divide the evidence into civil trap obtaining evidence, reward obtaining evidence, candid camera&wiretap obtaining evidence and private detective obtaining evidence. There are two main different opinions on the use of private record evidence in domestic. Some people think legality isn’t the essential attribute of private record evidence, and some other think it is. The foreign research on the private record evidence is more in-depth. However, they also don’t have a certain standard. Judicial discretion plays an important role in the adoption of private record evidence.Regarding to the relevance regulations of private record evidence, there are only one or two items in 95 Approval and Regulations on Evidence, which leads to the confusion of the private record evidence in judicial practice. Private record evidence is admitted as effective in some cases but it is on the contrary in other cases. This situation is caused by the regulations of our country for the private record evidence since they are too strict or too general. And in practice, adopting which judicial interpretation also influences the evidentiary effect of the private record evidence since the above two judicial interpretations all have the force of law. Thus leads to the chaos when applying the private record evidence including ignoring both of these two judicial interpretations.Regard to this situation, we put forward some suggestion to improve the status quo of private record evidence. For improvement of our judicial interpretation on private record evidence, we propose abolishing 95 Approval since its rules are not conforming to the status quo of private record evidence. At the same time, we put forward detailing and refining the regulations of evidence which makes the regulations more specific. Thus in judicial practice, it will be better for us to use these regulations to judge the evidentiary effect of private record evidence. We also make some suggestion from the utility angle. For instance, establishing procedure before court, endowing the party right of dissent on the evidence, establishing appraisal and supervision procedures for private record evidence. And judges should give full play to their judicial discretion and the regulations in order to implement the maximum protection for those infringed rights.