Research On The Exclusionary Rule Of Civil Illegal Evidence

In China,the exclusionary rule of civil illegal evidence is too rough compared with the rule of criminal illegal evidence,whether in terms of the unity of the legal order,the maintenance of equality of arms between the parties,the acceptance of the truth of the law,the consideration of overall justice and the partisan nature of the evidence,the exclusionary rule of civil illegal evidence should be constructed and made flesh and blood.Enriching the exclusionary rules of civil illegal evidence should be considered from two levels.The first level is the general rule of the exclusionary rule of illegal evidence,which is essentially the legal rule of evidence,first,for parties,the handling of illegal evidence should be separatism,that is,"whether the evidence is accepted" and "whether to investigate civil or criminal responsibility" should be judged separately;Third,if the third party illegally collects evidence,it should be judged according to whether the third party has an interest in the case and whether the party producing the illegal evidence knows about it;Fourth,the acceptance of the illegal evidence by the other party can not be the reason for the court to accept the illegal evidence;Fifth,the time for the party to apply for the exclusion of the illegal evidence should be limited to the court trial and before the end of the court debate;Sixth,different from the theory of "fruit of poisonous tree" in the criminal procedure,the derivative evidence derived from illegal evidence collection in the civil procedure should be accepted in principle based on the consideration of objective truth.At the same time,it is more logical to replace the legitimacy of evidence with the suitability of evidence,and it is not easy to lead to theoverlap and complexity of concepts.The second level is the discretionary rule in the exclusion of illegal evidence,that is,the refinement on the basis of article 106 of the current《The judicial interpretation of civil procedure law 》,which is essentially an amendment to the doctrine of pure free evaluation of evidence,on the premise that the aim is just and the public interest is not harmed,taking into account the substitutability of the illegal act,the substantive law nature of the case,the difficulty of the parties to investigate evidences,whether the aim is to safeguard the public interest,and the factors of the relationship between the parties,comprehensive consideration of the problem of illegal evidence is necessary.Considering the present situation of our country’s judicature,neither can we adopt the practice of the continental law system to hand over the evidence issue to the judge freely,nor can we copy the evidence rules of common law with the intention of "restricting the jury",we should enrich the whole rule of civil illegal evidence exclusion through the proper restriction of free evaluation of evidence and the some moderate legal evidence rule.