Abstract

The behavior of before litigation evidence collection is the legal interests of the parties and the court, collecting evidence from the other party or the third party before the procedure before the lawsuit. One of the most important points in the collection of evidence is that the court's intervention and the legal protection before the lawsuit. In theory, the transformation of the litigation mode and the lawsuit idea is the basic of evidence collection. Integration of proceedings has recognized and affirmed the legitimacy of before litigation evidence collection, the principle of good faith in the principle of honesty and credit has further demonstrated the ethical and moral nature of before litigation evidence collection and social civil procedure in the civil procedure, prevent litigation, avoid litigation, prepare litigation, promote litigation making the before litigation evidence collection from the future direction of the evidence collection has a look forward, yearning. In the law, in the civil procedure law, the provision of the rights of the parties to collect direct explain the legality and necessity of before litigation evidence collected. In practice, the pretrial evidence collection is derived from the world judicial crisis and judicial reform; modern litigation has overturned the traditional procedure. It makes reasonable and necessary for evidence collected in advance and determine the facts of the case; China's judicial reform also has a strong appeal to the collection of evidence collection.

Outside legislation of evidence collection before litigation and the practice can be abstracted into two modes: the party's leading evidence collection before litigation and the court's leading evidence collection before litigation. The biggest advantage of the party's leading evidence collection is to respect and recognize the procedural dominance right of the parties, but it is easy to cause a delay in the proceedings, waste of judicial resources and substantial injustice of the lawsuit. The evidence collection leading by the court before litigation can make up the shortage of the insufficient capacity of parties to collect the evidence, and ensure the effectiveness of the evidence collection. But it is also easy to cause the judge of the facts of the case and the result of“first impressions are strongest”and even wanton. In the Chinese judicial practice, there are three types of evidence collection before litigation. Evidence collection before litigation is very important for the parties to collect their own evidence, but it is difficult to guarantee the expected effect that it is completely dependent on the parties to collect evidence. Evidence collection before litigation of social action is the most important method in the traditional and present in our country. However, due to the lack of the legal consequences of its institutional setting, there is a congenital weakness. Evidence collection before litigation of national action has overcame the drawbacks of the first two types of rigid shortcomings, but it can play a very limited role in the special form of“evidence preservation”.

To improve China's before litigation evidence collection system, must create a new type of before litigation evidence collection. The choice of relative intelligence is innovation in China's current“parties to apply for the court investigation and collection of evidence”system, extend the time period from after litigation to before litigation, so as to make the system develop, the parties may apply to the court to collect evidence in the proceedings, not only before but also after the proceedings are to be. Where the parties apply for the court to collect evidence before the court is the perfect combination of the parties and their legal representatives to collect evidence and the evidence collected by the court in accordance with the terms of reference, is the Chinese traditional civil procedure and evidence collection system“reasonable core”of the condensation and reflect. In fact, the parties to collect evidence in the application of the court investigation has become our country's most legitimate, the most flexible, the most effective evidence collection method.

The key is to determine the application conditions to increase the party's appeal to the court before litigation to collect evidence of the type of investigation, the purpose of the establishment of the system can not be achieved if the conditions were too harsh. Conversely, it is likely to damage the other party or third people holding evidence of the legitimate rights and interests. On the condition of collecting evidence by the court investigation appealed by the parties after litigation, learning from the experience of collecting evidence before litigation from foreign countries, where the parties concerned apply for a court investigation to collect evidence, the applicant must have a legal interest and exclude evidence from the facts of the case, of course, the application of the parties must be subject to the constraints of the cost of the sanctions, fines and unfavorable judgment.

Keywords: Civil Procedure; Evidence Collection Before Litigation; Pretrial Evidence Preservation; Applying for the Court to Investigate and Collect Evidence Before Litigation