Evidence collection system in civil procedure

下面为大家整理一篇优秀的paper代写范文- Evidence collection system in civil procedure，供大家参考学习，这篇论文讨论了民事诉讼证据收集制度。英美法制发达国家在民事诉讼证据收集制度方面很有建树，在强调当事人主导证据收集的同时，为当事人获取收集证据的途径设置了一系列保障程序，并赋予了法官广泛的程序指挥权，使证据收集成为当事人与法官协同完成的诉讼活动。

British and American legal system in civil action evidence collection system in developed countries are well done, emphasize the dominant evidence collected by the parties at the same time, the ways to collect evidence for the parties to get set up a series of security procedures, and gives the judge wide application command, make evidence collection of the parties and the judge completed in lawsuit. Rational absorption is conducive to constructing the basic mode and specific system of evidence collection in civil litigation in China.

The United States is a typical litigant country. As early as 1848, the field code clearly affirmed that the litigant could collect evidence through the evidence investigation procedure. Later, in 1938, the us congress approved the us federal rules of civil procedure, which established the independent evidence investigation and collection procedure for the first time, called "Discovery", which was translated into "Discovery procedure" by domestic scholars. Nowadays, evidence collection in American civil action is mainly completed through discovery process. Discovery procedures "are formal procedures by which parties may seek information from each other and from others who are not involved in the dispute but may have relevant information." In essence, "it is a procedural stage that transforms the actual demand of the parties to collect and retrieve evidence into the procedural stage after the provision of litigation rights. The key point is to affirm the right of the parties to collect evidence and provide procedural safeguard measures for the parties to collect evidence." Pursuant to section 25, paragraph 2, paragraph 1 of the United States rules of civil procedure, either party may require the other party to bring any matter that is relevant to the subject matter of action and is not a privilege of confidentiality. It can be seen that the scope of application of the discovery procedure is very broad and basically covers all matters related to the case.

Although the application scope and method of discovery procedure are very detailed in the United States federal rules of civil procedure, the application of discovery procedure is limited by confidentiality privilege. Privileges are also recognized in matters relating to public office, such as matters relating to national security and military secrets. In accordance with section 26 (2) of the United States code of civil procedure, there is also a limited recognition of the privilege of confidentiality regarding the work of lawyers and insurance contracts and expert testimony. The evidence collection system of civil litigation in the United States is guaranteed by the discovery procedure to ensure the openness and transparency of the procedure and the realization of the parties' right to collect evidence. However, since the 1970s, discovery procedures have often been abused, leading to increased litigation costs and inefficiency, and discovery procedures have been criticized and questioned. After 1980, the United States strengthened the supervision power of the judges in the discovery process, limited the number of times that the parties used the discovery method, and promoted the perfection of the discovery process.

Britain, like the United States, is a country that practices litigationism. However, in terms of civil evidence collection, the long-term influence of the adversarial litigation culture and the negative judgment of judges lead to serious violations of procedural rules and abuse of rights by the parties, resulting in high litigation costs, trial delay and other problems. Against this background, in the 1990s, great changes were made in civil justice in Britain, especially the rules of civil procedure, which was implemented on April 26, 1999. In terms of evidence in civil proceedings, the new rules focus on strengthening the supervision and command power of judges on evidence collection and promoting cooperation between parties and between judges and parties, which makes the evidence collection system of civil proceedings in Britain present a completely different outlook. Evidence collection in civil proceedings in Britain is also conducted through discovery, which is not as extensive in scope and procedure as that in the United States.

British evidence discovery mainly refers to the discovery and inspection of documentary evidence. Other methods of evidence collection, such as witness testimony, written testimony, etc., are stipulated in a separate chapter. Book discovery in the UK is divided into standard discovery and specific discovery or specific access. Where standard discovery refers to all discovery of evidence except as otherwise specified by the court's order for discovery. As long as a party makes a request for disclosure, the applied party shall provide documentary evidence that is not of the nature of confidentiality privilege or does not involve public interest and is under its own control. In order to prevent litigation delay, the court has the right to exempt the obligation of standard discovery or limit the obligation of standard discovery, and the parties may also agree in written form to exempt the obligation of standard discovery or limit the obligation of standard discovery. A specific discovery is an order for a court to issue a specific discovery after the conclusion of the standard discovery if a party considers that the documentary evidence of the discovery is insufficient and wishes to make further discovery. As a matter of fact, the discovery of documentary evidence in Britain can be started before the lawsuit is filed, and runs through the lawsuit all the time, which has become one of the biggest characteristics of the discovery system of documentary evidence in Britain.

The new rules also provide for limits on the scope of discovery and sanctions for violations of the obligation to disclose evidence. One is to protect the public interest. "anyone has the right to apply to the court for permission to prohibit the discovery of a certain document on the ground that the discovery will harm the public interest, without notifying other parties". Second, the parties enjoy confidentiality privileges, mainly legal professional privileges. If the party negligently allows others to access the documentary evidence enjoying the privilege of confidentiality, the access party may only use the documentary evidence and its contents with the permission of the court. At the same time, the new rules provided for the right of judges to impose sanctions against those who failed to comply with discovery.

It can be seen that the evidence collection system of civil litigation in Britain is different from that in the United States. In evidence discovery, many procedures can only be completed under the control and command of the judge, and the judge's procedural control over the litigation process has been obviously strengthened. This does not mean that Britain has ceased to practice litigationism. On the contrary, the strengthening of the role of judges is exactly the improvement and modification of litigationism.

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