Litigation

Time system in this chapter mainly discusses the burden of proof in civil proceedings of evidence an important guarantee for the system. Time system means that the burden of proof bears the burden of proof in civil parties put forward their own ideas in the following provisions and the courts should be made within the specified period of the corresponding evidence to prove his claims, overdue or late evidence will bear the burden of proof of evidence after the failure of the During the legal consequences of a system of civil litigation. Time-limited evidence suggested that the burden of proof on the parties from the limitation on the restrictions to prevent the spread of the burden of proof and randomness, and thus go directly to a fair trial and efficiency of civil proceedings will help the realization of justice, help to improve the efficiency of handling cases ; evidence of the proposed time limit for the system, we can urge the parties strive to provide the proof within the time limit to prove their own ideas, fundamentally, that they would be able to defend each other's claims and evidence fully prepared to prevent a sudden appear in court attack on an extent which rendered the other party in a disadvantageous position in litigation. The burden of proof that this is aimed at time-bound legal consequences of the burden of proof to establish the principle of integrity and efficiency, reduce the number of cases of a retrial and the retrial, balance the litigants and the courts v. benefits and so on, as well as the establishment of the system is not evidence of the Department to demonstrate.

Burden of proof in civil litigation system is the cornerstone of the system of evidence, the burden of proof The quality and efficiency of the high or low, depends on the time-frame system, the burden of proof implementation. The burden of proof on the parties, if not from the limitation on the restrictions can only lead to the spread of the burden of proof and randomness, which directly affect a fair trial and efficiency of the trial means not reach the purpose of reform. Therefore, the burden of proof to establish and improve the time-frame system, the burden of proof is to implement an important guarantee for the system.
First, the burden of proof time, the concept and characteristics of the
The burden of proof time system, also called the burden of proof prescription system, which refers to the burden of proof in civil parties put forward their own ideas, they should specify the provisions of the law and the courts within the validity period of the corresponding evidence to prove his claim, fail to do so the burden of proof or late after the evidence of the burden of proof is assuming the failure of the legal consequences of a civil action during the regime.
The burden of proof time system has the following characteristics:
First, the burden of proof of the main responsibilities of the specific nature of time. 'Civil Procedure' article 64, first paragraph: 'The parties to put forward their own ideas, have the responsibility to provide evidence'. This provision establishes the bearer of the burden of proof is a party, to determine the burden of proof is also a time limit for the main responsibilities of the parties, the parties shall refer to plaintiffs, defendants and third parties. Although the 'Code of Civil Procedure' article 64, second paragraph states: 'the parties and their legal counsel due to objective reasons can not collect their own evidence, or the people's court deems necessary to hear evidence in the case, the people's court shall be collected in the survey'. From the foregoing has fully demonstrated that in civil proceedings, to collect evidence from the parties in principle, be responsible for people's initiative to collect evidence is conditional.
Second, the burden of proof time is reasonable. 'Time frame' refers to the legal provisions and court proceedings on the specified deadline. Court-appointed non-compulsory period of time, belong to the people's courts 'discretionary' range. Period may be evidence of consensus by the parties and approved by the people's court. The burden of proof by the People's Court designated period, the designated period of not less than 30 days from the receipt of cases of the parties receiving notices and responding to the notice the next day. In the evidence submitted by the parties within the time limit evidence is indeed difficult, it should be the people's court within the period of application for extension of the burden of proof the burden of proof upon the people's court permission, may be appropriately extended period of proof. The parties within the extended deadline to submit evidence of proof is still difficult, and can again apply for a postponement to the people's court, whether to allow the people's court decision, are reasonable, the parties should be in this period of time to do its utmost to complete burden of proof.
Third, the evidence the statutory time limit of the consequences. Time-bound legal consequences of the burden of proof is for a limited period of time or late is not evidence of proof will not be the responsibility of the burden of proof, that bear the main burden of proof will not support the request of its proceedings or the fact that their claims will not be identified by legal consequences.
Second, the burden of proof to establish the need for time-bound system
(A) Existing laws and regulations on the evidence of the lack of time limits
Article 64 of China's Civil Procedure Law provides for the parties of the burden of proof, but there is no evidence the period, the Supreme Court 'on the application of "The People's Republic of China Civil Procedure Law" the views of a number of' Article 76 provides that: 'People's Court on the parties can not immediately submit evidence, should be based on specific circumstances, designate within a reasonable time to submit. The parties to submit the specified time limit is indeed difficult, it should be before the expiration of a specified period, to the people's court for an extension. People's Court decided to extend the period from '. It provides evidence of China's Civil Procedure relating to the embryonic form of time limit. However, the judicial interpretation of the burden of proof does not provide for time limits to achieve in what stage of the proceedings, but does not provide for time-bound system in breach of the burden of proof should bear the legal consequences of the lack of specific operational. July 6, 1998 Supreme People's Court 'on the way the reform of the civil trial, a number of provisions of' Article 39 provides that: 'In the second instance, the one of the parties to present new evidence to the case sent back for retrial, the other party the right to request compensation for loss of working time fees, Travel and other expenses'. The provisions do not see the evidence relating to time limits. Instead, the judicial interpretation of recognized parties may provide new evidence in the second instance, only the first instance by the parties did not provide new evidence of Economic sanctions. The 'Supreme People's Court on a number of provisions of Civil Procedural Evidence' Article 43 provides that: the burden of proof upon the expiry of the parties can continue to provide new evidence. This evidence is bound to a certain procedure, or even a large program on the facts of the case have an impact, since the parties have to provide new evidence of power, then the other party also should have the right to defense, while in the 'Supreme People's Court on civil Several provisions of the Evidence 'after the expiry of the burden of proof no further changes, increasing counter-claims provisions of the parties to restrict the exercise of this right is obviously not conducive to the parties or more parties to exercise full and equal right of action.
(B) The burden of proof to establish time-bound system has contributed to the realization of civil procedural justice.
Civil procedural justice refers to the operation in civil proceedings to be followed in the process of values, and there is no procedural justice, substantive justice can not be sustained. Evidence to establish time limits for the conduct of the parties to provide equal opportunities for legal action. The burden of proof time system requires the parties within the time limit in the burden of proof and evidence sufficient to make a claim, except where the judge is not normally accepted. This will prompt the parties to strive to provide the proof within the time limit to prove their claims, essentially, that they would be able to defend each other's claims and evidence well-prepared to appear in court to prevent a surprise attack each other at a disadvantage Erzhi litigation position.
(C) The burden of proof to establish time-bound system is conducive to improving the efficiency of handling cases, and achieve economic effects of litigation
First of all, the country's Cost of inputs would be significantly reduced, shortening the length of proceedings, present evidence of time-bound system, the parties stressed that the burden of proof, apart from a small number of law should be the transfer of evidence by the courts, the vast majority of the evidence by the parties themselves to complete the . Second, the party's own litigation expenditures will be reduced. Time system, the burden of proof objectively limits the burden of proof the parties time, the burden of proof and the Late Late can not bear the burden of proof will be adverse legal consequences, forcing the parties to actively take the initiative to be completed within the prescribed time limit the burden of proof, preventing the burden of proof and excessively bureaucratic, resulting in time and material cost of the relative reduction and lower litigation costs. Another theory, the Court's trial efficiency has been enhanced. Time of a system of evidence, so that the people's court at the trial before the parties can understand the specific and relevant evidence, v. struggle to sort out the focus of controversy, so court focused and rhythms, is conducive to 'a centralized hearing closed system', Jie Anlv will be significantly improved.
Third, the burden of proof to establish the feasibility of time-bound system
(A) 'Civil Procedure Law' and the relevant provisions of the burden of proof to establish time limits for our system provides the legal basis for
'Code of Civil Procedure' article 64, although not the first time provides evidence, but above all to establish the 'who advocate who is the burden of proof' principle and the limitation for the establishment of evidence provides a solid foundation. Supreme People's Court 'on the application of "The People's Republic of China Civil Procedure Law" a number of views on the issue' while Article 76 can be regarded as a prototype proof time, but it is After all, the provisions of the existing law is the basis for the first time put forward the time of proof the concept of burden of proof to establish time-bound system provides the basic framework of the Supreme People's Court 'on civil trial mode of economic reform certain provisions of' Article 39 of burden of proof, while not directly regulate time, but new evidence provided in the second trial the parties The purpose of sanctions is to limit the parties in the second instance to provide new evidence to guide the parties to give evidence in the first instance, so as to establish the burden of proof time system provides procedural safeguards. Supreme People's Court 'a number of provisions of Civil Procedural Evidence' of a time limit on evidence, but also caused the restructuring of China's entire proceedings and re-combination, from a legal point of view of the system, for its use in judicial practice and improve with positive.
(B) to draw on advanced foreign legislation
Civil procedure law in today's world some advanced countries such as France, Germany, Japan and other countries, the burden of proof in civil proceedings are time limits, France, Germany, the time limit for the burden of proof and evidence introduced at any time with Marxist doctrine, this approach for the subsequent The civil law countries follow suit, which was based on the progress of the courts to adjust the time frame to produce Information and evidence. Germany's' Code of Civil Procedure 'Article 282, paragraph 1, provides that:' the parties should be in the language debate, according to legal procedures and the procedural requirements, necessary for the proceedings with the appropriate time, made another attack and defense, in particular, a variety of claims, denial, objections, defenses, evidence, methods and evidence defense. 'One of the provisions of Article 296:' as the basis of judgments made by asking after the end of the debate, and then can not ask offensive and defensive means. 'Japan' Code of Civil Procedure 'Article 254 provides that:' the parties in the preparation process, the outcome of the procedure should be prepared statement, 'Article 255, paragraph 1, states:' In the oral argument, must not be advocated in the transcript or an alternative transcript of the preparing pleadings, there is no record of the items, but the matter is the court ex officio investigation or not to cause a significant delay in the proceedings, or by the release tomorrow can not be made in the preparation process is not due to gross negligence apply. 'Article 137 provides that:' method of attack or defense unless otherwise provided, may be made before the end of the debate in the courts. 'Burden of proof from the above-mentioned countries can be seen that a time limit on his request as follows: ?? the parties should be ready before the end of the process, put all his facts and ideas, all's claim stand out late do not support; ?? parties must before the end of the debate in the courts, we must provide them all the evidence can not be grounds for overdue, then the evidence would have lost the right results. We can have a choice in future.
(C) the judicial practice time for the establishment of a system of evidence has accumulated valuable Experience in
Since the Supreme People's Court 'on the application of "The People's Republic of China Civil Procedure Law" views on a number of issues' first proposed 'the burden of proof time' concept and the people's court in accordance with the judicial interpretation throughout, combined with the actual situation around the creative reform efforts, in particular the Supreme People's Court 'a number of provisions of Civil Procedural Evidence', for its role in judicial practice has a positive meaning. Fourth, the establishment of a system function of time of evidence
(A) the burden of proof to establish the principle of integrity and efficiency of the
Supreme People's Court 'a number of provisions of Civil Procedural Evidence' Article 25, Article 34 of the burden of proof on the parties within the time limit the effect of non-submission of evidence to be clear, that the parties concerned, where the burden of proof is not submitted within the time limit the evidence, as regards the the loss of the right of proof, while the burden of proof can not be consequences; right courts, where the party late submission of evidence, the court officials to refrain from organizing cross-examination, only the consent of the other party permit as an exception. This is the so-called evidence of loss of power, as evidence the system time is the most basic, the most important thing is for the current Civil Procedure Law 'evidence at any time ism' per se. As the Civil Procedure Law the burden of proof on the parties no clear period of strict limits, which allow the parties to present evidence in determining the timing enjoyed considerable arbitrariness. During the trial before the it can also be made at the trial, and even can be made after the trial, which can raise in the first instance, you can also make the second trial, and even raised in the retrial. In such circumstances, the scope of the new evidence is uncertain, divided almost no meaningful new evidence put forward the so-called new evidence has often become the party in the proceedings maliciously engage in a surprise attack, a means of delaying the proceedings, not only to the parties involved v. tired, and that their interests were damaged, but also a waste of judicial resources, reduce the efficiency of the trial, so that severely damaged credibility of the court. The evidence of loss of the right to just be able to more effectively curb this evil, which has strengthened the party in the evidentiary burden of proof within the time limit, while allowing the parties to present new evidence, but the timing of new evidence and have a clear and strict restrictions, so that the principles of integrity and efficiency aspects of proof in civil proceedings to be implemented, so that the burden of proof with the end result of the proceedings and stability has been largely resolved.
(B) reduce the number of cases of rehearing and retrial
Time system in the burden of proof 'on a number of provisions of Civil Procedural Evidence', the further proceedings in the fact that, according to the following sentence the fact that the theory of law has been established. According to the theory of legal fact is that the parties evidence, cross examination and the court finds that based on the generated, it is only right and wrong understanding of the problem, but will not be there was insufficient evidence for the existence of its or their own ambiguous case, as long as the parties and the Court is the legal process up to explore the current facts of the case, it will produce such results, it can be consistent with the objective facts, you can not match, but must not be ambiguous. On this basis, we will find, Civil Procedure Law with regard to the facts found by the trial is unclear, evidence insufficient, resulting in cases of remand or the requirements placed on file for retrial be redundant, its corresponding case, a retrial, the number of retrial must be reduced accordingly. As for the Civil Procedure Law provided for the trial by error of fact, should remand the issue, we consider it necessary to distinguish terms. If there is no new evidence emerged, then the second instance should be directly commute, should not be remanded; if there is new evidence, new evidence because of the force required, depending on if the new evidence is to fundamentally change the essential facts of cases should be remanded Otherwise, a direct commuted. So since the case is remanded in turn further reduced.
(C) the balance of the litigants and the Court v. Beneficial
The reasons for the plaintiff's own evidence within the time limit is not in evidence, resulting in the second trial or retrial of the case because of new evidence had been sent back for retrial, or commuted, and made a deal with two points: First, do not be characterized as a miscarriage of justice trial; second is to give a party the parties request the parties to present new evidence the burden of a retrial or a result of the increase in commute travel, loss of working time, witnesses to testify in court, the reasonable costs of litigation and the associated expansion of the direct losses. The aim is to achieve balance between two kinds of proceedings: first, a balance of interests within the Court proceedings on the trial court in the trial phase formed on the basis of the evidence, the correct decision or not, shall not be tried twice for the emergence of new evidence or a retrial, as judged standards, in line with truth is relative and absolute nature of the dialectical unity of views, the second is a balance of interests between the parties the proceedings, a party entitled to the reason for the loss of the parties to present new evidence claim because the authors of the new evidence on subjective fault pairs to be no-fault compensation for losses suffered by the parties reflects the civil law of equity, justice on the spirit.
Fifth, the idea of setting up a system of proof time
Burden of proof on the existing judicial interpretations of the time the system is not under the Department should improve the
(A) changed to increase, change claim, counterclaim made the final period to 'burden of proof before the deadline expires community' to 'forensic investigations at the end' only.
In order to prevent abuse of the right to appeal the parties, resulting in excessive delay in the proceedings may be Bing with 'a centralized trial closed' system, specifically refers to only in court proceedings ended just made changes to increase the demands and counter-claims, the trial court only Once, People's Court after a trial can be closed. Through a concentrated trial, both parties to prevent abuse of the right to appeal to extend the lead to legal proceedings, but also to save time and complete the largest dispute resolution procedures, reducing the appeal trial, retrial, and the number of complaint cases. Such a system, and judicial interpretations of evidence of proof time after the expiry of time limit and no further changes, increasing the provisions of counterclaims to better take into account 'timely conclusion' and 'fully protect the exercise of the right to appeal the parties' two aspects.
(B) is not conducive to the identification of cases of true objective reality
The main purpose of the proceedings of evidence, the court in making the reproduction of the real cases of objective facts, but after hearing the objective fact that reproduction had occurred, after all, there is a certain gap between the facts of this and then the fact that the theory more realistic, the more we can make more accurate judgments, and justice, it all depends on the quality of the level of the Evidence, the number of how many the size of that force. And if the parties do not have to provide evidence of proof within the time limit. The court would be 'no Organization Certificate' and 'inadmissible'. To use 'time to concentrate on trying closed' system, however, the court fully considered all the evidence before the end of the debate on the case, listened to this until all the views and opinions of the case after thorough cross-examination, and considering these 'new evidence' and the debate on the before the end of all the evidence, and the results compared with 'non-organized cross-examination' and 'inadmissible' approach would be more accurate, more objective and more just world.
(C) not suitable for China's national conditions
China has a vast, for up to four or five thousand miles away and even farther off-site court cases, the relative convenience of today, there are a lot of inconvenience: first, the time and effort; 2 is affordability. If the order of proof, certification, questioning witnesses, court proceedings and a series of activities, frequently visit the court accepted the case, his client's litigation costs correspondingly higher, and more than a certain period of time, its future, even if the evidence submitted, will also be non - adoption. The use of 'time to concentrate on trying closed' system, we can solve these problems, so that the parties will reduce the distance and Transportation costs of expensive litigation, but also to facilitate the timely conclusion of the court cases.
(D) the cultural level of our citizens and the popularization of legal knowledge processes are not suitable
A majority of people in our country to live in, subject to conditions, restrictions on the relatively low educational level, legal knowledge and poor, the unsuccessful procedures due to lack of a minority party, let alone understand, use, and to comply with 'the burden of proof time' and commitment ' the burden of proof can not be 'legal consequences. The use of 'time to concentrate on trying closed system', will prove time-second to 'the end of court debate only'. Can be the maximum procedures to protect the exercise of their procedural rights, saying that clear to say so, make clear the grounds of the talk, get out of the evidence, a clear its final appeal, so that the formation of judgments, but also the greatest extent ensure impartiality, and then if we want to bear the burden of proof can not be legal consequences, but also convinced.
(V) counsel's professional and other agents of the investigation, had a negative impact
  In practice, few days before the trial lawyer occupies a certain proportion of cases, lawyers entrusted, after the case according to its own understanding and needs will be conducting a series of investigation and evidence collection, its scope including the 'newly discovered' evidence, but also ' The new place 'facts of the case, but this evidence that if certain the burden of proof before the expiration of the period is good, if after the expiry of the burden of proof, the court will be' over the period of proof 'and' is not new evidence 'ground' to refrain from organizing cross-examination 'and' inadmissible '. No matter no matter how high the level of lawyers, skills, and then strong, due to time reasons, the Court's ruling is the negative result of their own people, while lawyers difficult to establish in the minds of clients about their legal status, but to use 'time to concentrate on trying closed system 'without affecting the normal hearing process, under the premise of not only fully protect the rights of the parties to the litigation, but also to retain counsel in this stage of investigation and evidence collection.
In summary, evidence of China's civil litigation system is a time limit in the field of a new system, it has been established in the form of judicial interpretation, but they have much to be desired and does not apply to the Department, and therefore I use the practice in the future should continue to improve, to make our country a more reasonable and perfect the whole Structure of litigation, hoping to cause legislators to class were highly valued.

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