I. Overview of the time limit system for adducing evidence

As for the time limit of proof, there is no consistent definition and clear connotation in the theoretical circle of procedural law in China, and it seems that there is no clear and consistent provision in other countries. According to the author's understanding, the time limit for proof refers to the time and time limit for submitting evidence to the court in litigation, and the legal system that fails to submit evidence should bear corresponding legal consequences. According to the specific content of the Evidence Regulations, the time limit for proof can be divided into two types: the prescribed time limit for proof and the agreed time limit for proof, but both types of people's courts play a decisive role, which is also the same feature in China's civil justice. In the early stage of the development of civil litigation, judicial justice played a leading role. In order to realize the justice of the judgment, the court generally recognizes that the parties to a case can submit evidence related to the case at any time. However, with the influence of economy on society, people find that this right has also been abused by some parties. Submitting evidence at any time not only violates the principle of good faith in civil litigation, but also affects the trial time of the case by surprise, and may even affect the fair handling and judgment of the case, seriously affecting the efficiency of litigation. In view of this, the civil procedure law of modern countries mostly reforms the submission of evidence at any time to timely submission, which is the case with the "evidence regulation" of the Supreme Court. As for the role and legitimacy of its provisions, here is a brief analysis.

Second, the time limit for proof and the loss of evidence rights.

The time limit system of proof is closely related to the system of losing the right of evidence. The so-called loss of the right to evidence means that the litigant who has the responsibility to submit evidence (not the burden of proof, please pay attention) fails to submit evidence to the court within the agreed or stipulated time, which is regarded as giving up the right to submit evidence, and the evidence submitted by him is no longer cross-examined, which naturally cannot be used as the basis for determining the facts of the case. Article 34 of the Evidence Regulations clearly stipulates: "The parties shall submit evidence materials to the people's court within the time limit for adducing evidence. If the parties fail to do so within the time limit for adducing evidence, they shall be deemed to have waived their right to adduce evidence. The people's court shall not organize cross-examination of the evidence materials submitted by the parties within the time limit. Unless the other party agrees to cross-examine. " The author believes that the consequences of losing the right to evidence will affect the realization of the substantive rights of the parties and will substantially determine the outcome of the referee, so it cannot be taken lightly. First of all, the consequences of losing the right to evidence are extremely serious, which should be one of the basic contents of the civil procedure law and should be stipulated by law, so this interpretation of the Supreme Court is suspected of exceeding its authority; Secondly, too strict evidence loss system is not conducive to making the court's judgment conform to the objective facts of the case, and it is likely to produce a wrong judgment, thus failing to meet the most basic requirements of fair justice; Third, because China has not yet established a complete system of principal-agent litigation, our citizens' legal awareness is generally low, and they often cannot correctly understand the role of a certain evidence and the serious consequences caused by not providing evidence. If it is handled in strict accordance with the regulations, there will inevitably be many determinations and treatments that are inconsistent with objective facts, which will undermine the fundamental purpose and true value of the law. This point has always been prominent in judicial practice.

Third, the time limit for proof and evidence exchange.

Article 37 of the Evidence Regulations stipulates: "Upon the application of the parties, the people's court may organize the parties to exchange evidence before the court session. The people's court shall organize the parties to exchange evidence after the expiration of the defense period and before the court session. " Article 38 stipulates: "The time for exchanging evidence may be agreed by the parties through consultation and approved by the people's court, or it may be designated by the people's court. If the people's court organizes the parties to exchange evidence, the time limit for adducing evidence shall be the date of exchange of evidence. If the parties apply for an extension of proof with the permission of the people's court, the date of evidence exchange will be postponed accordingly. " At this time, there are two dates: "the expiration date of the proof period" and "the evidence exchange date". What is the relationship between them? The author tries to make a brief analysis. According to the regulations, the date of evidence exchange can be before, after and after the expiration of the period of proof. If it is later, what is the significance of stipulating the time limit for proof? In addition, what is the purpose of the exchange of evidence? Just to "pass evidence to each other"? Is it necessary to determine the focus of the dispute between the two sides (that is, what some comrades say)? If one party submits relevant evidence to the court before or on the day when the time limit for adducing evidence expires, and puts forward that he has not defended himself or has defended himself but has put forward new viewpoints and evidence, at this time, due to the exchange of evidence, the time limit for adducing evidence by the other party expires, so how to submit and deal with the rebuttal evidence collected by him? If one party submits evidence that has not been presented before when exchanging evidence on the expiration date of the proof period, how can the other party present rebuttal evidence? Wait a minute. Although Article 40 stipulates: "If the parties raise objections and present new evidence after receiving the evidence exchanged by the other party, the people's court shall notify the parties to exchange it at a specified time." If this "designated time" will be later than the original designated time for evidence exchange, and the time limit for presenting evidence expires due to evidence exchange at this time, isn't it useless to announce the original designated time limit? These problems seem to be somewhat contradictory. In judicial practice, these regulations not only confuse the parties and lawyers, but also confuse the judges. In addition, the frequency and regulations of evidence exchange, the content and scope of evidence exchange, the methods and procedures of evidence exchange, etc. , need to be clearly defined to avoid being inoperable. The author speculates that the main purpose of this explanation seems to be to achieve the similar effect of evidence discovery system in Anglo-American litigation legal system, so the author first quotes the concept of "evidence discovery" in Anglo-American evidence law for a brief comparison. According to the Oxford Law Dictionary, "discovery" means "in England, the parties in civil litigation can obtain all the documents and existing information about the disputed matters between the two parties to a certain extent. The purpose of this procedure is to disclose relevant documents before the trial to avoid accidents during the trial and promote the fair handling of the case. " Chinese scholar Shen Daming called it "discovery procedure", and clearly pointed out that this procedure "plays the following roles: (1) to preserve the testimony of witnesses who cannot appear in court; (2) expose the facts; (3) Clarify the disputed points; (4) freezing testimony to prevent forgery; (5) When both parties find that the only dispute between them is the legal dispute, it is convenient to invoke the summary judgment procedure; (6) After careful investigation, the two sides find out the seriousness of the facts and legal points of the other side and are likely to settle; (7) Even if the trial is inevitable, appropriate discovery methods can prepare for the trial and make the matters to be tried concrete. " I dare not steal the beauty of others, but so many words quoted in the original text are summarized by Mr. Shen Daming, which seems to have explained the main functions of the evidence discovery system and can be used for reference. In common law countries, the discovery system of evidence has been greatly developed and further improved, and combined with relevant legal systems and legal traditions, it has achieved the expected purpose well. Although there are still some problems, they are being studied and solved step by step. However, the author believes that there are significant differences between the time limit for adducing evidence and the evidence exchange system and the evidence discovery system, mainly in the scope, content, methods and procedures of evidence discovery. It is necessary to combine more detailed and complete evidence rules with the professional help of legal service personnel who are proficient in this procedure in order to better play the role of this system and achieve its purpose. As China has not yet established a civil litigation system in which all lawyers are represented by lawyers, the objective conditions and institutional environment for implementing this system seem inadequate. At the same time, because the evidence is too simple and rough, the effect is not ideal, and many new problems have appeared, which should be paid enough attention to and properly handled.

Fourth, the issue of new evidence.

The article 125 1 of China's civil procedure law stipulates that "the parties may present new evidence in court", but it is explicitly denied in the "evidence regulations". Moreover, what is "new evidence"? Article 4 1 of the Evidence Regulations (1) is divided into two procedures: first instance and second instance: "The new evidence in the first instance procedure includes: the evidence newly discovered by the parties after the expiration of the time limit for giving evidence in the first instance; Evidence that the parties cannot provide within the time limit for adducing evidence due to objective reasons, nor can they provide within the extended time limit with the permission of the people's court. " The latter case is easy to understand and reasonable, but the first case is not easy to master. Some scholars believe that "the evidence newly discovered by the parties after the expiration of the time limit for adducing evidence in the first instance" may be the evidence newly produced after the expiration of the time limit for adducing evidence, or it may be the evidence that already exists but has not been discovered and submitted by the parties for various reasons. If it is due to objective reasons or the parties are not at fault, it seems that they can explain the situation to the court and get the understanding and recognition of the court. However, if the parties have a wrong understanding of the function and result of evidence, it is not recommended to read: Civil Evidence.

What should I do when I can submit it to the court? Some of my colleagues have also encountered such problems. Some parties can't determine the function and importance of a certain piece of evidence at all in the lawsuit. Only after the investigation and reminder of the judge during the court debate did they know that there was evidence, but they didn't submit it. If the "Evidence Regulations" are strictly implemented and evidence is not organized for cross-examination as the basis for ascertaining facts, a considerable number of cases will be unfair or even obviously wrong, which will not only violate the purpose of judicial justice, but also cause strong dissatisfaction among the parties. If the evidence is cross-examined as the basis for determining the facts of the case, it will actually make the "evidence provision" ineffective and not binding at all. It seems that this problem is not a simple legal provision or a judicial interpretation, but a problem that may need to be solved by reforming some important related judicial systems. How can courts at all levels handle it lightly? ! From the meaning of "discovery", according to the interpretation of Modern Chinese Idiom Dictionary, "discovery" means "① seeing or discovering things or laws that have not been seen by predecessors through research and exploration; 2 find out. " And "discovery" means "beginning to know (something that was hidden or not noticed before)." As can be seen from the meaning, the evidence existed before, but it was ignored and there was no corresponding attention and submission. However, the dictionary does not mention anything new after this. "If it doesn't exist, how can we find it?" There should be no objection to finding it. Therefore, it is undoubtedly incomplete not to understand and pay attention to the handling of this "negligence" or "inattention" situation from the perspective of linguistics or evidence law. This is also something that must be carefully studied and dealt with, and we can't turn a blind eye. There are also "newly discovered evidence after the trial of the first instance" in the second instance procedure. For the above reasons, I will not repeat them here.

Verb (abbreviation of verb) evaluation and suggestion

Here, the author only makes a superficial discussion on the time limit system of proof in the Evidence Regulations. The author insists that because the Supreme Court has stipulated the prescription system and the consequences of losing the right to evidence, it has seriously restricted the litigation rights of the parties and substantially affected the verdict, so it is suspected of exceeding its authority. This is actually a concrete manifestation of the dispute between judicial justice and efficiency. Although on the surface, the court seems to be more "efficient" in doing so, the author insists that as a law, the pursuit of justice is its most fundamental purpose, and only by giving consideration to efficiency on the basis of fairness and justice can the essential characteristics and purposes of the law be realized. If we excessively pursue efficiency and neglect justice, it will undoubtedly make the public shake the fairness of the legal and judicial system, which will also be the most inefficient practice. The author believes that the establishment of the time limit system for adducing evidence needs perfect pre-trial preparation procedures, high-quality legal service system, high-quality judges, the establishment and improvement of legal environment and legal awareness, and a feasible and powerful witness protection system. At present, the strict system of losing the right of evidence has no corresponding legal system guarantee, and it is too strict, which is not conducive to the legal construction of our country. On the issue of the time limit for adducing evidence and the loss of the right to adduce evidence, the author thinks it is best to stipulate that after the expiration of the time limit for adducing evidence, if the trial result changes, the parties can pay the litigation costs and compensate the corresponding losses, and even stipulate necessary sanctions. It can not only solve the most essential requirements of judicial justice, but also punish those who can't give evidence. At this stage, it seems more feasible. Of course, the author also suggests that we should study and find other more suitable methods to solve this problem. At the same time, the author suggests that it is best to formally establish a more perfect and specific evidence discovery system or pretrial preparation system to make it more operable and improve judicial efficiency on the basis of ensuring judicial justice, so as to achieve the expected purpose of establishing this system.

Precautions:

1, David m walker, Li et al. Oxford Law Dictionary, Law Press, 2003, p. 329.

2. Shen Daming's Comparison of Civil Procedure Law: China Legal Publishing House, 2002, p. 87.

3. Editorial Department of Dictionary, Institute of Linguistics, Chinese Academy of Social Sciences, Modern Chinese Dictionary (2002 supplement), Commercial Press, 2002, p. 340.

4, ibid., p. 338.