Study On The System Of Lawyer’s Investigation Order In Civil Litigation

In the current wave of judicial reform in China,the reform of trial mode is still a big problem,a "hard bone".However,the difficulty of obtaining evidence in civil cases will continue to exist for a long time.Evidence is the basis and support for a judge to hear a case.According to the principle of "who claims,who adduces evidence",the party who claims positive facts has the obligation to bear the burden of proof.However,in practice,the parties’ ability to collect evidence is weak and the obstacles in the process of collecting evidence are large.Therefore,the academic and practical circles generally believe that our country should adhere to the principle of "the one who claims,the one who adduces evidence".While constantly enhancing the ability of the parties’ burden of proof,in order to avoid the judge’s premature formation of psychological evidence,adhere to its neutral position in the trial,we need to constantly weaken the court’s power of investigation and evidence collection in accordance with its authority.The lawyer’s investigation order is an important way for the parties to investigate and collect evidence.According to the judicial practice in China for many years,the lawyer’s investigation order is full of vitality.Therefore,in order to protect the right of investigation and evidence collection of the parties,it is necessary to continue to implement the system of lawyer investigation order and improve it.This paper mainly discusses from the following four parts.The first part is an overview of the investigation order system.First,it expounds the meaning and legal nature of the lawyer investigation order system;second,it explains the legal function of the lawyer investigation order system;third,it analyzes the value of the lawyer investigation order system,including the procedural value and the substantive value;fourth,it explains the necessity and feasibility of establishing the lawyer investigation order system in China.In the academic and practical circles,scholars have a great controversy on the legal nature of the system of lawyer’s investigation order.Some scholars think that the lawyer’s investigation order is based on the authorization of the court,and some scholars think that it is based on the entrustment of the court.This paper holds that the lawyer’s investigation order is a kind of legal document with public power and certain compulsory effect issued by the court,and it is a kind of support for lawyer’s investigation and evidence collection.The second part expounds the current situation and problems of the investigation order system of civil litigation lawyers in China.First of all,it explains the relevant provisions of the current law of our country on the lawyer investigation order system and the current situation of the implementation of the lawyer investigation order system in our country;secondly,it points out the effect of the pilot in all parts of our country;finally,it explains the problems of the lawyer investigation order system in our country.At present,in the current civil procedure law of our country,there is no relevant provisions of the lawyer’s investigation order,so the legality of its existence still needs to be clearly authorized by the relevant laws.Although the court has issued normative documents of lawyer’s investigation order,it has not yet formed a unified system standard,which is not conducive to its full implementation and undermines the judicial authority.The third part is the investigation of the lawyer’s investigation order system.This extraterritorial investigation is mainly a comparative analysis of the investigation order system of lawyers in the United States and Britain of the common law countries and Germany and Japan of the civil law countries.The discovery system of evidence in common law countries and the order system of document presentation in civil law countries are both to ensure that one party of a case can smoothly obtain the evidence held by the other party or the third party of the case.First of all,the system of putting forward an order requires the full intervention of the court,which has a strong color of intervention of court power.It can be seen that whether the court actively intervenes in the investigation is the biggest difference between the evidence collection system of civil law system and common law system.The fourth part is the suggestions for the improvement of the investigation order system.First of all,it is necessary to clarify the legal status of the lawyer investigation order system in China,and establish a unified standard system for the subject and scope of application of the lawyer investigation order,the application,review,evidence collection and reply of the lawyer investigation order,and put forward suggestions for the establishment of the corresponding punishment system and the improvement of its supporting facilities.In order to successfully implement and improve the investigation order system of lawyers,we can establish a punishment system for the abuse of investigation order by lawyers and the non cooperation of counterparts in investigation and evidence collection;we can also improve lawyers by authorizing the Supreme Court to legislate in the way of judicial interpretation,the Supreme Court to summarize the trial experience of investigation order system in various regions and put forward the trial opinions of the nationwide unified investigation order system Supporting measures of investigation order system.