Burden of proof in civil action

-- Discussion on "the Supreme People's Court on evidence in civil proceedings" provisions of the time limit for adducing evidence

[AbstractTo)"The lawsuit is evidence". Civil litigation cannot do without evidence, evidence system is the core of the civil litigation system, and the time limit for adducing evidence system is an important component of the evidence system. "Some provisions of the Supreme People's court" about civil action evidence for the first time to set the time limit for adducing evidence, to a certain extent, overcomes the disadvantages of evidence at any given time, may violate the final goals or misused by parties, improve the efficiency of the trial "". But the system also has many deficiencies and shortcomings, and even severely limits the litigation rights of the parties, and substantially affect the entity justice "". This paper is intended to analyze the problems existing in our country's the time limit for adducing evidence at present from the late proof causes and so on, to further improve the civil litigation system for proof of a personal views.

[Key word.   Rules of evidence  The burden of proof  The time limit for adducing evidence  If the burden of proof    

Objective: the French scholars pointed out: "all sorts of experiments conducted in France for 30 years in any case also shows that, without the use of authoritative power of the minimum limit, it is difficult to change the court's practice, at the same time, people can see, using strict deadlines, and to give the overdue sanctions for non-compliance during the loss of rights the case, may confirm the risk automatically doctrine. So it is necessary to coordinate these two kinds of contradictions"[1]. In order to improve the trial efficiency, safeguard the time limit for adducing evidence of the play, as far as possible to prevent the parties to present evidence, shall be based on the causes of the burden of proof of the parties, the burden of proof under different overdue consequence to coordinate this contradiction.

Generally, the several provisions of the Supreme People's court "about civil action evidence" (hereinafter referred to as "evidence" provisions) published before, our civil litigation is the implementation of the "evidence at any time". The parties in court before the end of the debate, each stage can present evidence the court. It is the main basis for the "Civil Procedure Law" 125th article "the parties may present new evidence before a court". Because of the "new evidence" the scope is not clear, resulting in the trial practice, some clients based on their own interests in litigation before the court, did not provide evidence to the court, but in the trial or after the trial was provided, and some parties in the procedure of first instance or even deliberately not to mention, and in the second instance and retrial procedure in the present and so on, to the other party caused by litigation surprise attack on. At the same time, if the parties do not timely evidence, or organizing impeachment court cannot effectively is the focus of controversy, resulting in some cases to the legal provisions in the trial period concluded, seriously affected the people's Court of judicial efficiency and judicial authority, but also increases the cost of litigation.

In December 6, 2001, the Supreme People's Court issued "Regulations on evidence", the time limit for adducing evidence problem made special provisions, marks the time limit for adducing evidence in civil litigation system of China formally established, which is the great progress of the legal construction in our country. The establishment of this system, mobilize the enthusiasm of the parties burden ", overcomes the drawbacks evidence at any time", is helpful to the people's court in the court before finishing the focus of controversy, fixed evidence, improve the efficiency of the trial. But this change, there are also of litigious rights restriction and other negative factors, more attention should be paid to legislators.

A proof of concept, the system of time limit

The time limit for adducing evidence refers to the burden of parties should be specified in the law or court within the period of the relevant evidence is presented to demonstrate that, overdue proof bear a civil lawsuit system during the period of the proof losing right legal consequences[II]. It is mainly through the limited time, reasonable restriction to present evidence of rights to the parties, more than the time limit for adducing evidence provides evidence, can not be used as evidence (except the other party agree), namely the loss of evidence right. Thus, the time limit for adducing evidence is the period of the legal property, legally binding on the parties, the parties must comply with the time, otherwise it will bear the legal consequences of other evidence of loss of rights.

The time limit for adducing evidence system as a complete legal system, two aspects of time and consequences of the content must have at the same time, indispensable, otherwise the system existence loses its meaning[3]. The system of two layers of meaning proof deadline: one is the limited period, the second is the legal consequences, including the positive consequences of adverse consequences if it fails when one of the parties should bear the burden of proof and the other party to obtain the corresponding. The first layer of meaning is the form of the second layers of meaning, essence, only to the legal consequences as the support, limited period not only to lose. Two aspects of that the time limit for adducing evidence including the time limit for adducing evidence and the burden of the proof losing right overdue. The time limit for adducing evidence is specified during the law or court party put forward evidence of its claim or counter. The parties shall try best to submit evidence to support claims or refute their to the court within the specified time period. But the proof losing right is the core of the time limit for adducing evidence, refers to the time limit for adducing evidence will lose the right to prove it. Because of the realization of the right to prove the evidence relies on the right[4]Therefore, the loss of the proof losing right manifests for the parties to present evidence of rights, and this loss of rights has been extended to all subsequent procedures, so the second not because of losing right evidence and commuted retrial, not due to the loss of right to evidence and start. Effect is not the proof losing right is absolute, out of consideration for the parties to litigation justice, there is reason to overdue proof, the court could be appropriate to adopt. But for being deliberately and subjective burden of parties should be overdue by the strict sense of the proof losing right system.

The origin of the two parties, the burden of      

The so-called delayed submission of evidence refers to the parties in civil litigation evidence in the law or the parties contract is specified or the court evidence after the expiry of the behavior. In practice the proof overdue for many reasons, can be summarized in the following circumstances:

(A reasons) the objective reason not attributable to the parties and the overdue.

The objective reason refers to people's awareness, reason independent of man's consciousness and the existence of. Such as the sudden illness, accident or floods, earthquakes and other force majeure obstacle, cause the party concerned fails to provide evidence in the evidence before the expiration of the term.

(Two) because the parties subjective negligence caused the overdue burden of proof.Subjective negligence refers to the wrong understanding, including the mistake errors of fact and legal awareness. The so-called fact mistake is that the parties have not the right understanding of the facts of the case. If the parties mistakenly think they provide evidence enough to prove its claim or refute the existence of the facts, and without other evidence, but in fact the evidence provided by the parties is not sufficient to prove the claim or refute the fact existence; the parties to can prove the existence of the claim or refute the evidence is not the evidence or not mistaken to prove the claim or refute the existence of the facts; the parties to the understanding of the causal relationship mistake understanding of these errors of fact may have contributed to the parties failed to provide evidence in the evidence before the expiration of the term. The so-called legal understanding mistake, refers to the provisions of the law is not correct understanding. If the time limit for adducing evidence of actual has expired but the mistake proof period has not expired; the parties according to the provisions of the civil procedure law can provide evidence, but according to the "Regulations" evidence must provide evidence to specify a time limit agreed upon by the parties or the court before the expiry of the same may lead to the parties failed to provide evidence in the evidence before the expiration of the term. These subjective negligence has no subjective malicious, but in judicial practice due to the subjective negligence caused the overdue of burden of proof has certain universality.

(Three) due to the subjective intent and overdue burden of proof.Such as some parties to litigation surprise or to delay the purpose of litigation, legal defects using evidence at any time, in the first instance proceedings intentionally refuses to provide to prove the existence of the claim or to refute the evidence, and stay in the procedure of second instance and retrial procedure is proposed, which not only makes the court of justice by man-made obstacles, but also to the other party caused damage, but also damage the honest credit principle, fair procedure, has the obvious subjective malice. But in judicial practice due to the subjective intent and overdue proof is just a few, not universal.

(Four) due to the lack of legal knowledge and the overdue burden of proof.Since the reform and opening up, the legal environment in China has been hitherto unknown to improve, people's awareness of the law has been generally improved. But also should see, popularization of legal knowledge is not balanced, especially in the vast rural areas and the central and western regions, the legal quality of people is also relatively low, "certain provisions" evidence proof deadline set systems on their somewhat harsh.

The main task of civil litigation is to protect the legitimate rights and interests of the parties, not to punish a party. The establishment of the time limit for adducing evidence should be to protect the legitimate rights and interests of the parties for the purpose of considering the origin, the parties evidence, different rules, bear different legal consequences. But it is a pity "certain provisions" evidence the time limit for adducing evidence ignores the overdue burden of origin in common, the excessive emphasis on the overdue burden of causes of personality, the parties in civil procedure are assumed to be "frozen", which has no malice but because of subjective fault or the lack of legal knowledge and the overdue the burden of "citizen" to assume the "rogue" the same legal consequences, that is "a fly bad a pot of soup".

Three, "some provisions of the time limit for adducing evidence evidence" general provisions

(One way to determine a proof deadline)."Regulations" provisions of article thirty-third evidence: "the burden of proof shall be agreed upon by the parties concerned, and accepted by the people's court. The people's court shall designate the time limit for adducing evidence, the specified period shall not be less than thirty, since the client receives the case after notice and notice of responding to action "(an calculation specified period certainly applicable to the case of the summary procedure can be less than thirty days). According to this provision, there are two ways to determine the time limit for adducing evidence, one is agreed upon by the parties concerned, and accepted by the people's court; the two is directly specified by the people's court. But in the judicial practice, the case the prosecution to the court after negotiation of both parties, the possibility of time limit for adducing evidence is very small, the time limit for adducing evidence designated in most cases are dependent on the court.

(Two) extended on the term of adducing evidence."Regulations" provisions of article thirty-sixth evidence: "if the time limit for adducing evidence indeed have difficulty in submitting evidence, shall apply for extension of the burden of proof in the people's court within the time limit of burden of proof, with permission of the people's court, may be appropriate to extend the term of the burden of proof. The burden of proof in extended periods of evidence submitted materials still have difficulties, you can apply for extension again, it shall be decided by a people's court". According to this provision, we should determine the permission of the court, the extension of the time limit for adducing evidence parties because of objective reasons can't burden of proof or not, such as earthquake, flood, traffic accident, the relevant unit or personnel do not fit the objective reason. If because of subjective reasons, the burden upon the expiration of the period for the court extended, the court should not be permitted.

(Three) about the legal consequences of overdue burden of proof."The evidence provisions" thirty-fourth: "the parties shall submit the evidence materials in the people's court within the time limit does not submit the proof, the parties within the specified time period, regarded as giving up the right" "to the late submission of evidence, the people's court shall not organize quality certificate. But the consent of the other party except the quality of evidence". This provision stipulates the legal consequences of overdue burden of proof, the proof losing right. Invalidity of evidence is not evidence that timely legal consequences of overdue burden of proof, the time limit for adducing evidence is that the parties did not court appointed or not in the time limit for adducing evidence within the court recognized the court to prove their claims of evidence, and not in the time limit for adducing evidence or proof deadline extended to the specified circumstances, loss of evidence right, the loss of the right to prove. Prove that the right in the litigation of the most basic, most important rights, the parties must stand on its own has evidence to prove that, in order to safeguard their legitimate rights and interests. If a party lost the right to adduce evidence, cannot prove their claims, must bear part or all of the responsibility of losing lawsuit. The court on the evidence provided by the parties, only is lawful and effective, can be used as the basis for decisions, otherwise, it can not be taken as a basis. Evidence for the parties to submit, the court will be deemed not to have the force of law in the trial process, the court not to organize quality certificate (unless the consent of the other party), nor in the adjudicative document late submission of evidence as the basis of decision.

(Four) about the scope of new evidence."The evidence provisions" forty-first to forty-sixth, the new evidence for a trial procedure, trial procedure, problems in retrial procedure provisions were made, including new evidence program in a variety of meanings and putting forward the new evidence time, the parties in the first trial procedure and trial procedure submitted evidence does not belong to the new evidence the consequence and exceptions. These regulations guarantee the people's court can be more fair, timely trial, judgment. But there are still no specific place, the parties to provide new evidence, should prove to the new evidence, the other party which can give advice or evidence to refute, whether to belong to the new evidence confirmed by the people's court.

Four, "Several Provisions on evidence" the time limit for adducing evidence insufficiency

From the view of the world, regardless of the continental law system or Anglo American law countries, have set up a time limit for adducing evidence. "Regulations" the promulgation and implementation of evidence, marks the time limit for adducing evidence in civil litigation system of China formally established, conforms to the general trend of world civil legislation. But the "certain provisions" evidence of the time limit for adducing evidence, but there are many problems and shortcomings.

(A "certain provisions") in the evidence the time limit for adducing evidence, do not accord with the basic national conditions in China at present.

1, China has a vast territory, regional wide, is not suitable for "the time limit for adducing evidence provisions" in the evidence system. As everyone knows, China has a vast territory, regional wide, remote procedure exists, and some even reached four, five thousand km to the remote, the case of the parties caused a lot of inconvenience, such as time, energy and the economic capacity, parties in order to proof, certification, quality certificate, the court a series of litigation activities, frequent visit the court hearing the case, the litigation costs, remarkable. While more than one time stage, the future even if submitted evidence, will not be accepted. "Certain provisions" in the evidence system of time limit in the region, a relatively small countries and regions also have certain admissibility, in the vast territory of the China may not fully fit ahead, too.

2, China's national culture level and the lack of legal knowledge, is not suitable for the time limit for adducing evidence "Several Provisions" in the evidence system. Overall, China's population, weak economic foundation, the cultural quality is not high, especially in the rural areas and the central and western rural areas, these people live in rural areas, restricted by historical conditions, geographic conditions, economic conditions and other factors, the cultural level is relatively low, even there are many illiterate at the same time; legal system construction in China started late, the lack of legal knowledge of the masses, not "Civil Procedure Law" are not in the minority, in judicial practice, because they do not know the procedures and the losing party is not in the minority, not to mention the legal consequences should they understand, use and comply with the time limit for adducing evidence and bear the burden of proof not. The time limit for adducing evidence for them, is tantamount to Arabian Nights.

3, our current law enforcement environment is not very ideal, also is not suitable for the time limit for adducing evidence "Several Provisions" in the evidence system. In the trial practice, we have long stressed that "relying on the masses, investigation, mediation, on the spot to resolve" the sixteen character principle. In civil procedure, the court investigation evidence collection is often undertaken, the active and timely proof idea has not formed, and the law enforcement environment at present in our country is not very ideal, the witness system is not perfect and so on, the burden of proof is often difficult. "Certain provisions" in the evidence the time limit for adducing evidence to protect the legitimate rights and interests of the parties.

(Two) "certain provisions" in the evidence the time limit for adducing evidence, contrary to the "fact based" principle in civil procedure, the fact is not conducive to the identification of cases.

"Take the fact as the basis" is an important principle of the civil procedure law in china. This principle in civil procedure in order to find out the facts of the case as the main task, in order to entity ref of justice, fairness. Therefore, the main purpose of the set time limit for adducing evidence should be is the real objective fact that court case representation. Although the objective fact after hearing reconstruction after all, there is a certain gap with the fact, but this representation in more realistic, more can make the decision result more accuracy and fairness, it all depends on the evidence of quality, quantity, proof size. According to the "Regulations" evidence, and evidence obtained during the time period of expiration to court before the end of the debate, court will not organize examination and shall not be accepted (except belongs to the new evidence), even if direct influence on the judgment even is evidence of the effect, will not be accepted. This means that the judge may not respect the objective facts of cases, even will form error, reason is no evidence within the specified time period. The parties may because of a small mistake in their caused millions or millions of losses. The ruling party of course, difficult to accept, even if not corrected, will still go appeal, the retrial procedure, and even the petition, in order to achieve the substantive justice, the results did not reach to improve the efficiency of the proceedings and the parties "interest litigation" purposes. Even doubt the public on China's civil litigation system, undermine the whole judicial system.

(Three) "certain provisions" in the evidence the time limit for adducing evidence, contrary to the "fair" principle.

In civil proceedings, the plaintiff is the main engine of the proceedings, so they have more, more adequate procedural rights.

1, the plaintiff has to avoid overdue burden caused by evidence of loss of rights remedy. The plaintiff's litigation rights can start the litigation procedure, also can cause the termination of proceedings. Because the plaintiff to enjoy more fully the right of action, so that the plaintiff can use the "certain provisions" evidence of the time limit for adducing evidence more comfortably than the defendant, to realize their litigation request. If the plaintiff for his mistake and overdue proof, in order to maintain its overdue validity evidence provided, be free to withdraw the prosecution, and then re filed. In the re action, the plaintiff may without regard to the original has been more than the time limit for adducing evidence provides evidence to use as evidence. As a litigation disputes another defendant clearly is not in the right, can only passively responding, if because of your mistake causes overdue proof, no relief, legal consequences shall be borne by the proof losing right.

Enjoy the burden of time than the more fully, the plaintiff in fact 2. The plaintiff sued former has a sufficient time to prepare, to prosecute the former preparations include litigation request, the production, research and the collection of the litigation claims of evidence and so on. That is to say, the prosecution, the evidence has been collected. The defendant in the indictment copy only received the court served by the plaintiff, can begin to collect evidence. This result is apparently lack of "fairness" principle.

(Four) "certain provisions" in the evidence the time limit for adducing evidence, may damage the legitimate rights and interests of the weak parties.

As mentioned before, the parties may result in some problems, some parties may be due to the remote location, and neither the culture, economy and more difficult, difficult to pay for expensive legal fees to hire a lawyer, thus it is very difficult to get legal help, so the proof time limit exceeded. In fact, these parties such as the burden of proof within the specified time period, is able to win. For more than a burden of evidence, the court is inadmissible, regardless of is the first, second, or retrial. Because of the time limit for adducing evidence that timely evidence, the legal truthfulness and objective truthfulness is sometimes a fundamental difference, so the system may damage the legitimate rights and interests of the weak parties, their legitimate rights and interests due because of procedural problems and are not protected by law. The comparative advantages of the party, even if the lack of legal knowledge and their understanding of the problem, but still have the ability to exercise their litigation rights, because they can hire lawyers get legal help. It may eventually because of procedural problems and artificially caused the unfair entities, damage the legitimate rights and interests of the weak parties.

(Five) "certain provisions" evidence of the time limit for adducing evidence, lawyers and other agents work of investigation, also adversely affected.

In the period after the expiration of the period of proof to the trial, the parties can hire a lawyer, agent accounted for a certain proportion, lawyers in the Commission, according to his understanding of the case and the need to start a series of investigation and evidence collection, its scope includes the discovery of new evidence, including the new occurrence of the facts of the case. And this kind of evidence, the court will take over the time limit for adducing evidence or not new evidence that no organization or refuse to accept the evidence. In practice, a certain proportion in a few days before the trial lawyer in the case, the present actual conditions lawyers working environment is not optimistic, such provisions would make one disaster after another lawyer environment. Strong despite the lawyer's business to high level, skill, the show in this stage without evidence of tissue examination or refuse to accept the court's decision, is also the result of his bad. Lawyers more difficult in the principal of the mind to establish the legal status.

(Six) "certain provisions" evidence times and time to extend the term of adducing evidence is not specified.

According to the "Regulations" provisions of article thirty-sixth evidence, to extend the time limit for adducing evidence should have the following two conditions: one is to submit the evidence is difficult for adducing period, two is put forward to apply for extension of the proof burden in the people's court within the time limit. But whether to extend the time limit for adducing evidence, the extended period and how to extend the period of times, are determined by the court. The court free client application, also do not need to listen to the other party's opinion, the court has the power of discretion. Court to extend the time limit for adducing evidence, may be appropriately extended. But what is "appropriate"? "Certain provisions" evidence is not clear, difficult to unified in judicial practice to grasp. Furthermore, the proof time limit may be extended for several times? "Certain provisions" evidence is not specified.

Set the time limit for adducing evidence should consider China's basic national conditions; consider the judicial practice of our country and the law enforcement environment in China; the universality and particularity to consider the issue; the basic principles of civil procedure law in China to consider and civil litigation; consider the litigation rights of the parties balance; consider the protection of vulnerable groups. But the "Regulations" provisions of evidence about the time limit for adducing evidence clearly without considering the above factors, but to "make it rigidly uniform" in the national scope, unify the time limit for adducing evidence, fairness criterion.

Five, improve the system of time limit of proof in China

The establishment and the perfection of the system of time limit for adducing evidence this actually is a concrete manifestation of the "fairness" and "efficiency" for the. Although on the surface, "certain provisions" evidence of the time limit for adducing evidence, seems to make the court's judicial activities more "efficiency", but the "fairness" and "efficiency" are closely linked, "justice" is the prerequisite and guarantee for "efficiency", not "justice" is not "efficiency". Lost "justice" judgment, the parties must certainly unacceptable, another instance, retrial procedures, and even the petition, in order to pursue the objective the purpose of justice, in fact did not achieve the purpose of improving the efficiency of lawsuit. Therefore, as the legal pursuit of justice is the most fundamental purpose, only on the basis of fair trial on efficiency, can realize the nature and purpose of law. If the excessive pursuit of efficiency rather than justice, will let the public doubt the impartiality of the law and justice system, this would be the most inefficient practices. The author thinks, the strict proof losing right system without considering the law enforcement environment at present causes the parties burden of proof and our country, also does not have the corresponding legal system as guarantee, but also to the party is too strict, is not conducive to the legal construction of our country. For the time limit for adducing evidence and proof losing right, the author thinks that can be considered from the following aspects to be perfect:

(A) should be clearly defined proof deadline extension number and expiration time."Certain provisions" evidence provisions of article thirty-sixth of the extended term of adducing evidence, provide relief ways of the difficulties of proof the existence, but if the "inappropriate" extension, and easy to cause the lawsuit delay, may be caused by the other party is not fair. The author thinks, this provision is too principle, has not the clear place, should be extended to the number of term of adducing evidence make clear, the general should not exceed two times. Termination problem about the term of adducing evidence, the theory circle of our country at present, there are mainly two kinds of Views: a view that should be scheduled for the end of the court debate of the first instance[⑤]; another thinks it will be set as the court trial date[6]. The author believes that, along with the establishment of perfect functions of pretrial procedure, China should refer to the practice of most countries in the world, the termination proof deadline stipulated in the focus of controversy and evidence to determine the end of the pretrial procedure. At the same time, also should be allowed according to the specific circumstances of the case, the court appointed the time limit of reasonable or agreed upon by the parties to the time limit for adducing evidence, but whether the court specified or agreed upon by the parties shall be subject to the time limit for adducing evidence legal, which should be defined before the end of the pretrial procedure.

(Two) should take the burden of proof for the duration of the party's ability to combine.The time limit for adducing evidence is defined in the pretrial procedure of the parties before the end of the proof ability request is very high, to ensure the quality of the collection in the limited time of evidence is an important problem. If there is no ways and means a proper and effective to ensure the collection to a case involving the relevant evidential materials and information, so the parties have the initiative, enthusiasm is not timely proof, carries on the trial in this case, it will cause the procedural injustice and delays, the time limit for adducing evidence against the original intention of the establishment. The author thinks that, on the evidence act strict regulation at the same time, it should be given the corresponding rights, the survey evidence on the procedure of certain and means of support, give more freedom and convenience. As before the trials, under the auspices of a judge, a party may apply to the other party regarding the case of inquiry, the inquiry record as a kind of evidence; the record of inquiry after the problems still exist, can be used in book form and then asked to survey; that it is essential to request the other party submission of evidence or witnesses are called, can file a written application to the court; and can apply to the court for the relevant documentary evidence, material evidence, audiovisual materials as well as one's body, mental state and place for identification and inspection, in addition, the activities of lawyers to consider by too many restrictions, so the lawyer's right of investigation and collecting evidence needs to be expanded.

(Three) should be appropriate to relax the exception proof deadline.The irreversibility of the program is a basic principle, but also can not make it absolute. We must consider the influence reason evidence the term system settings, to avoid the absolute loss of rights, there does not burden of subjective negligence or parties because of objective reasons in reality, such as force majeure and other conditions and restrictions, simply to deny the parties to present evidence the time limit for adducing evidence of right is a kind of dogma, arbitrary practice. In American, not to "make it rigidly uniform" means any evidence of over proof deadline is not adopted, but there are a number of exceptions, worth learning. The author thinks, the parties have the ability to provide evidence within the time limit and the malicious not submit evidence, should be considered giving up the right to deny the effectiveness, the late submission of evidence. But in the non malicious and evidence can not play, not blindly negate its overdue presented evidence, but should be given appropriate remedial opportunity, a court in the related specialized knowledge and expertise to help gather evidence to give the parties can help, by the power of courts to obtain evidence in the parties; two there is a justifiable reason to extend the proof to be appropriate to relax the restrictions during the burden of proof, may be appropriate to extend the term of.

(Four) should properly balance the time limit for adducing evidence of both parties.Judicial justice includes substantive justice and procedure justice two aspects, entity justice and procedure justice, promote each other, complement each other. Fair and reasonable procedures is not only an important guarantee of substantive justice, but also conducive to protect the legitimate rights and interests of the parties, the time limit for adducing evidence set should reflect the impartiality program. But the "evidence" of some provisions of the deadline set for the system is more beneficial, justice is difficult to reflect program. In view of the actual proof than the defendant enjoy more fully, and to provide evidence overdue has certain preventing evidence relief means loss of rights, the author thinks that the time limit for adducing evidence set should consider appropriate to extend the period in order to balance both the burden of proof, the burden of proof of the parties when. The time limit for adducing evidence the plaintiff can be set in a reasonable period of time the plaintiff or prosecution within the time limit for adducing evidence, the defendant set a reasonable period of time all the evidence provided in the known plaintiff within the organization, according to the evidence evidence provided by the plaintiff. Although the time limit for adducing evidence by prolonging the defendant, the defendant is difficult to make the burden entirely out of weakness, but to a certain extent, can still make up the right to produce evidence, to reflect the fair value application.

     (Five) shall adopt appropriate sanctions.The parties due to subjective vicious and overdue presented evidence, consideration should be given to the proof losing right; while for the party because of the subjective negligence caused the overdue proof, generally take the cost of sanctions. In fact, several provisions "evidence" in the drafting process, the relevant departments have considered that such a scheme. As of September 27, 2000 the Supreme People's court "rules of evidence in civil litigation (Draft)" the provisions of article thirteenth "and if the facts, the general should provide evidence before a court session. The parties in the trial of the new evidence, should be submitted before the end of court debate. The parties put forward new evidence in a court case, the other party may apply for postponement of the hearing, and may require the compensation resulting in increased delay costs, poor to testify in court, witness fees travel expenses." The provisions of article fourteenth, the parties put forward new evidence in the second instance, the case revision or rehearing, the court of second instance shall specify the confirmation of new evidence in the judgment of first instance, should not be considered as the referee mistakes; second case litigation costs by putting forward the new evidence of a party to change, not the burden; change the case of trial litigation expenses; for a retrial, the other party may request the compensation for lost wages, poor travelling expenses, witness fees. The provisions of article fifteenth, the parties to a legally effective judgment put forward new evidence to apply for a retrial, the retrial shall be in accordance with the standards of burden of litigation expenses[7]. The author thinks, this plan reflects the fairness of the process, with the basic conditions of our country, to maintain "based on facts" principle. Only when the parties deliberately delay action until circumstances can make its overdue provides the proof losing right, can even coercive measures to delay proceedings for obstruction of civil actions. As for the overdue provides evidence for the reason not attributable to the fault of the parties or just the party know negligence, which should not be the proof losing right.

The above is only some author's understanding, to construct a proof term for the situation of our country system, security enhancement, it must also rely on the legal consciousness legal environment optimization, the perfection of witness system, to improve the quality of the judges and other several related factors, the only way to construct a coincidence integrity, legitimacy, rationality, conforms to the national burden of expect system.

 

 

 

 

The bibliography and Literature

[1] see Ye Ziqiang: "the civil evidence research", Law Press, 1999 October edition, page 136th - 196.

[2] see Chen Guiming, Zhang Feng: "the time limit for adducing evidence of civil law", the forum, Journal of China University of Political Science and Law, 1998 third.

[3] see Zhang Weiping: "litigation structure and program", Tsinghua University press, 2000 June edition, page 453rd - 460.

[4] see Li Hao: "civil burden of proof research", China University of Political Science and Law press, 1993 June edition.

[5] see Huang Songyou editor: "understanding and application of" the civil litigation evidence of judicial interpretation, Chinese legal publishing house, 2002 March edition.

[6] Li Guoguang editor: "the Supreme People's court 'rules of evidence in civil suits' understanding and application of", China legal publishing house, 2002 February edition, page 260th - 322.

The Law School of Xiamen University joint research group of [7] Xiamen City Intermediate People's court,: "the new evidence of civil litigation of judicial interpretation of the enforcement and improvement", applicable law, 2003 fourth.

[8] Bi Yuqian: "study" and practice principle of civil evidence, the people's court press, 2003 edition, page 288th - 380.

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