The Study On Judicial Application Of The System Of Producing-Documents-Orders

The system of producing-documents-orders is generally stipulated in the Civil Procedure Law of the continental law system countries and regions.It is an important means for civil litigants participating in civil lawsuit in continental law system countries and regions to collect documentary evidence.The system was established in our civil lawsuit,beginning with the provisions of Articles 112 and 113 of the Supreme People’s Court’s Judicial Interpretation for Civil Procedure Law of the People’s Republic of China.At present,it has functioned three years.But,there have been judicial application issues,including the irregular application,the lack of review procedures,the uncertainty of the decision and the remedy,and the confusion between the documents-submitted-obligation and the burden of proof.The author finds out that the reasons owing to three aspects.Firstly,it attributes to legislative defect.That is a deficiency in specific rules regarding “application,review,decision and relief”,which directly leads to problems in judicial application.Secondly,it is owing to conflicts in concept of legislative guidance,such as the conflict between substantive justice and procedural justice.Legislators have an idea bias at the beginning of the system design,ignoring the guarantee of procedural justice,resulting in the lack of legislation in the operation of the procedure.Thirdly,the problems arise because of the influence of the judge’s referee thinking.Because there are too many legal gaps,the system needs the cooperation of the judge’s discretion to run smoothly.But,the different judges’ way of thinking can directly lead to different judicial application,and there may be contradictory treatment.Based on the analysis of problems and causes,the dissertation analyzes furtherly and gives suggestions from two aspects that are the scope of application and program operation.Firstly,we need to expand subjects of the scope of application which means a third person can be a respondent,and we must clarify objects of the scope of application.It is suggested that impose restrictive legislation on the duty of producing documentary which is limited to the scope of cited documentary evidence,rights documentary evidence,interest documentary evidence and legal relationship documentary evidence.Moreover,in order to balance litigation interests and litigation interests,the exceptions of the duty of producing documents should be presented on the basis of invoking the privilege of witnesses refusing to testify.In addition,it is nessary to clear the situation that the evidence such as photos and electronic data and audiovisual data,having the same function as documentary,should be applied in the system as well.Secondly,there are four kinds of measures to enhance procedural safeguards.First,it is necessary to clarify application subjects and application forms,defining the records of the party’s application and confirming that the application is limited to the expiry of the time period for applying for evidence.Second,it is also important to clarify review procedure by establishing right of representation for parties,power of interrogation for judges and a non-public review method.Third,judge’s determination mode should be unified to ruling and parties are entitled to appeal.Fourth,sanctions of refusing to submit documents should be clearly defined.In the case of the parties’ defiance of the order,it is presumed that the facts asserted by the applicant are established.When a third person fails to comply with an order,the court may impose a fine on the third party.At the same time,give the person the right to review.