Empirical Study On The Evidence Disqualification System Of Civil Action In China

From strict system of evidence disqualification set forth in Article 34 of Provisions of the Supreme People’s Court on Evidence in Civil Procedure(hereinafter referred to as "Provisions of Evidence"),to the mitigating system of evidence disqualification set forth in Article 65 of Civil Procedure Law of the People’s Republic of China(hereinafter referred to as the Civil Procedure Law)revised in 2012,to the refined and expanded aforementioned mitigation system of evidence disqualification set forth in Article 102 of Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China(hereinafter referred to as the Interpretation of Civil Procedure Law),although the system of evidence disqualification in China has been criticized and challenged by academia and judicial practice in historical changes and practical operation,legislators insist on retaining it on the basis of constant amendments,which may prove that the system of evidence disqualification is still of inherent rationality and practical necessity.In other words,the significance of the system of evidence disqualification to theory and practice still needs to be discussed in depth.In this paper,the operation status of the system of evidence disqualification in civil procedure in China is investigated in the idea of empirical analysis to find out existing problems.At the same time,combined with the latest provisions regulated in Articles 101 and 102 of the latest provisions of the system of evidence disqualification(Interpretation of Civil Procedure Law)and starting from new norms and new problems,this paper tries to draw objective rationality and unbiased conclusions.This main text of the paper is divided into four chapters:In the first chapter,this paper analyses the basic principles of the system of evidence disqualification in civil litigation.The evidence disqualification in civil litigation refers to a civil litigation evidence system where the parties fail to provide evidence within the time limit prescribed by law or specified by the court without justified reasons and lose the right of proof and right of presentation of evidence in civil litigation,and it has certain links and differences with the system of evidence disqualification,the system of time limit of proof,and the system of burden of proof.The system of evidence disqualification in civil litigation is constructed based on the litigation promotion duty of the parties and the principle of honesty and credit.This system not only benefits from realization of the value of procedural efficiency,but also promotes the value of procedural justice by promoting equal confrontation and participation of the parties.From the perspective of historical development,the system of evidence disqualification in civil litigation has gone through three stages of the doctrine of presenting evidence at any time(no the system of evidence disqualification in civil action),statutory system of evidence disqualification in civil action,and discretionary system of evidence disqualification in civil action.In the second chapter,this paper carries out empirical study on the operation status of the system of evidence disqualification in civil action from two aspects of judicial application of relevant provisions and case judgment.When investigating the judicial application of the relevant provisions,it mainly starts from the empirical study on the pattern of judicial application as stipulated in Article 65 of Civil Procedure Law and Articles 101 & 102 in Interpretation of Civil Procedure Law.In the part of empirical investigation of case judgment,the sample cases are typically summarized and analyzed according to the starting subject of the system of evidence disqualification: The parties apply for the system of evidence disqualification,the court carries active application of the system of evidence disqualification,and the procurator recommends the application of the system of evidence disqualification.At the same time,the gives a general description of cases involving evidence disqualification in civil proceedings: analysis on the distribution of cause of action of sample cases,the level and region of the trial court,the submission stage of overdue evidence and the result of adjudication,the situation of entrusting legal professionals to act as agents,the initiation subject and the support of the court,the reasoning of adjudicative documents on whether evidence disqualification or not,appeal or application for retrial based on whether the evidence to be disqualified.In the third chapter,based on the empirical results of the previous study,this paper further analyzes the problems and reasons of the existence of the system of evidence disqualification in civil litigation in China.From the perspective of the application proportion and function expression of the system of evidence disqualification,the function of the system is not effective,which is due to the lack of consideration of litigation efficiency in the current constitutive elements of evidence disqualification;The pluralistic judgment logic of evidence disqualification is embodied in the judgment criteria and the reasoning ideas.And the main reason is that the extension of the "basic facts" in the negative elements of evidence disqualification is not clear;the reason for the lack of regulation on the evidence disqualification in the second instance is that the unification of the constitutive elements of the evidence disqualification ignores the differences in function and structure in all different trial levels;The judicial application rate of the rule of compensation for damages due to overdue proof is very low,and the legislative purpose of relieving the parties who suffer property losses due to overdue proof is frustrated,which is due to the negligence and low maneuverability of the key specific procedural rules;The unbalanced supply-demand relationship of procedural safeguard in the operation of the system of evidence disqualification is mainly manifested in the poor practice supply of procedural safeguard,causing it far less than the actual demand.While the main reason for the poor practice supply of procedural safeguard is the lack of procedural safeguard rules related to the system of evidence disqualification in current civil procedure legislation.In the fourth chapter,this paper explores the specific ways to improve the system of evidence disqualification in civil litigation in China.From the analysis of the internal structure of the system of evidence disqualification in civil litigation,the system has some problems in judicial practice,such as low effectiveness of system function,diversified judgment logic and inadequate regulation on evidence disqualification in the second instance.The key to solving these problems lies in scientifically setting up the elements of evidence disqualification,therefore,it is necessary to adjust the constituent elements of evidence disqualification in existing civil litigation: introducing the elements of delay in litigation,strictly limiting the extension of "basic facts" and distinguishing the elements of evidence disqualification in different trial levels;In order to strengthen the procedural safeguard of the parties in the operation of the system of evidence disqualification,it is necessary to introduce the review procedure of evidence disqualification in civil litigation,and refine the core points of the procedure,such as the start,operation period,proof and its standard,the form of adjudication,the disclosure of evidence and the way of relief.And it is also essential to refine the rules of damage compensation for overdue proof,and clarify its relationship with the sanction measures for overdue proof,the concrete procedure design of key links and the relief ways,thus enhancing the maneuverability of the rules in judicial practice.From the perspective of the external structure of the system of evidence disqualification in civil proceedings,it is required to improve the relevant supporting systems,such as enriching the pre-trial preparation procedures,safeguarding the parties’ right to collect evidence and stipulating the right to interpretation of the judges.