| Legal effect is the core issue in the proof of obstruction system.It’s generally believed that the legal effect of "prove the presumption of obstruction" is formally established in China in Article 95 of the "Several Provisions of the Supreme People’s Court on Evidence in Civil Procedures".However,this legal effect only applies to the proof of obstruction in a narrow sense,that is,obstruction deliberately committed by a party to the litigation.In fact,there are also situations in practice that obstructive acts are committed by the litigants negligently and “obstructive” situations that are not caused by the litigants’ reasons,in other words,“obstructive acts” are committed by litigation participants and third parties outside the case and are caused by unexpected events."obstruction" situation.Faced with such complex and diverse proving obstructing behaviors,single legal effect in legislation can neither effectively relieve the obstructed party nor solve the increasingly prominent proving obstructing problem.Therefore,it is necessary to interpret and define the obstruction of proof from a broad perspective so that foundation can be laid for the establishment and improvement of the legal effect system of the obstruction of proof,which will help judges solve the increasingly prominent problem of obstruction of proof in practice.Therefore,this dissertation researches on the general proving obstructing behavior and its legal effects according to the procedural research approach that is gradually discussed in stages and situations on the basis of categorizing and distinguishing the generalized proving obstructing behavior,.Apart from introduction and conclusion,the thesis is divided into five parts:The first part is about the general theory and empirical investigation to prove the obstructive behavior.By sorting out different obstructing situations in practice,it is found that proving obstructing behaviors in broad sense should not be limited to obstructing behaviors performed by litigants,but should also include“obstructive behaviors” committed by litigation participants,third parties outside the case,and incidents caused by accidents.The generalized proving obstructive behavior can be divided into "intentional","negligence" and "no fault" ones according to the difference of "subjective attribution mentality" of the perpetrator,this lays foundation for the exploration of applicability of legal effects from the perspective of typology.In addition,it’s found that judges do not have a unified understanding of the concept of obstruction of proof,their application of legal effects lacks flexibility and some judges even cite unfounded legal effects after examining the operation of judicial practice.The second part expounds intentional proof of obstruction and its legal effects.First,whether an obstructing act can be excluded should be judged.If so,the legal effect of "ordering the obstructing behavior to be excluded" can be applied;If not,it can be divided into three situations: the obstructing behavior cannot be excluded,the perpetrator refuses to exclude it and there is no alternative evidence,In the former two situations,the obstructed party is allowed to submit alternative evidence and apply the "lowering standard of proof" ”;In the latter one,the legal effect of “presumption of assertion” can be applied.The third part talks about the negligence to prove the obstruction and its legal effect.First,judge on the degree of fault of the perpetrator.Second,if the obstructed evidence has alternative evidence,the legal effect of "lowering the standard of proof" shall be applied,and the degree of lowering the "standard of proof" shall be determined according to the degree of negligence.Third,if there is no substitute evidence for the obstructed evidence,the legal effect of "reversal of the burden of proof" shall be applied for gross negligence obstruction,and the legal effects of "admonition" or "allowing an independent infringement lawsuit" to be applied to minor negligence obstruction.The fourth part elucidates no-fault "proof of obstruction" and its legal effects.No-fault "prove obstructive behavior" includes "obstructive behavior" committed by the participants in the lawsuit,third parties outside the case and "obstructive behavior" caused by unexpected events.No-fault "proof of obstruction" is not strictly a proof of obstruction,and cannot be directly applied to the legal effect of normally proved obstruction.For the "obstructive behavior" committed by the litigation participants and third parties outside the case,legal effects such as "exclusion of evidence","bearing the cost of alternative evidence collection",and "public law sanctions" can be applied for they have no direct interest in the case,.For the "impediment" situation caused by unexpected events,the legal effect of "lowering the standard of proof" can be applied if there is alternative evidence.At the same time,in order to protect the litigation interests of the other party,the judge should also accurately grasp the lowered "proof standard" in combination with other evidence and the degree of injustice suffered by the obstructed party.If there is no alternative evidence,the hindered party will still bear the consequences of inability to provide evidence.The fifth part provides suggestions on perfecting the system of proving obstructing legal effects in China.First,perfect legislation.Principle provisions for the proof of obstruction system should be added,diversified legal effects should be set up and clear provisions on the reasons for exemption should be made.Second,improve the referee rules.Before appling legal effects,a judge’s interpretation system should be set up.During the application,the extent to which the "standard of proof" should be lowered should be accurately grasped.After the application process,the responsibility for reasoning in documents should be strengthened.Finally,improve the supporting system.A procedural guarantee mechanism for perpetrators should be added,and the system of ordering the presentation of documentary evidence and the system of witnesses appearing in court should be further improved.At the same time,in order to ensure the application of legal effects is unified,a typological case guidance system should be established for the application of legal effects. |
