Good lawyer network reserves the right to edit.
, good lawyer network reserves the right to edit second, conflict:
Good lawyer network reserves the right to edit 1, civil evidence and criminal evidence:
Good lawyer network reserves the right to edit. Generally speaking, civil evidence is not as strict as criminal evidence. Civil evidence proves legal facts, not original facts. If a unified evidence code is established, there will be some conflicts between the two.
Good lawyer network reserves the right to edit. Article 42 of the Criminal Procedure Law stipulates that all facts that prove the true situation of a case are evidence.
Good lawyer network reserves the right to edit. The definition has the following meanings: (1) Evidence is fact; (2) It is to prove the facts of the case; (3) It is to prove the facts of the case; (4) All the facts prove the case. Although this definition reflects the authenticity, relevance and probative force of evidence.
Good lawyer network reserves the right to edit, but the evidence in civil litigation needs legitimacy and a process of evidence identification, that is to say, civil litigation needs to emphasize the pursuit of fairness, justice and social value of the parties, and an ordinary material (fact trace) needs to be transformed into evidence that can prove legal facts through legal procedures and a rule. Based on this idea (or need), it is obviously a fact, but it may not necessarily become evidence in civil litigation, which is also the reason why a reasonable party loses the case due to insufficient evidence in civil litigation. Evidence in criminal proceedings is based on two reasons: fighting crime and protecting non-criminals. The use of evidence is wider, and the requirements for the legality of obtaining evidence are relaxed. Criminal suspects and defenders cannot raise objections to the evidence of the prosecution (judicial organs) because they have no right to investigate and collect evidence and because of legal restrictions. It is emphasized that although the current criminal procedure law stipulates that lawyers should enter the investigation stage in advance, it only provides legal help, which has no change or influence on the investigation and evidence collection of cases in the original criminal system, and is more a restriction, because the original law stipulates that defenders can collect evidence, while the current law stipulates that the investigation and evidence collection of defenders requires the approval of the public security inspection law.
Good lawyer network reserves the right to edit.
Good lawyer network reserves the right to edit. 2. Legal certificate and free certificate:
The judicial proof system that Good Lawyer Network reserves the editing right can be divided into two basic modes: one is the legal proof mode (also known as the "legal evidence system"); The other is the free evaluation model (also known as the "free evaluation system"). The fundamental difference between these two models lies in whether the law gives judicial personnel the freedom to collect and use evidence, examine and judge evidence. In other words, whether the law has stipulated in advance the rules for collecting and using all kinds of evidence and the standards for examining and judging all kinds of evidence, or whether the judicial personnel are allowed to freely collect and judge evidence according to the specific circumstances of the case and personal conscience. Today, people still have different views on these two modes of judicial proof.
Good lawyer network reserves the right to edit. Common law countries adopt the system of free evaluation of evidence for judges, and becoming a French (civil law) country should be based on legal provisions rather than "free evaluation of evidence". Our country belongs to the statutory law system. In fact,
Good lawyer network reserves the right to edit. The evidence system currently adopted in China basically belongs to the category of free evaluation of evidence, although we also have provisions such as "it is forbidden to extort confessions by torture" and "recorded materials recorded privately without the consent of the other party shall not be used as evidence". For many years, we have always claimed that China has adopted the "evidence system of seeking truth from facts" and always stressed that the principle of "concrete analysis of specific problems" should be adhered to when using evidence, which is one of the main drawbacks of people's unimaginable unjust, false and wrong cases. Therefore, in fact, the judicial personnel in our country have irreplaceable, envied by foreign judges, and sometimes even unlimited power, and enjoy discretion when using evidence to determine the facts of a case.
Good lawyer network reserves the right to edit.
Good lawyer network reserves the right to edit 3. Legal and judicial interpretation:
There is no "separation of powers" system in China, but the legislative and law enforcement organs are clear, but almost all laws have judicial interpretations. Similarly, all functional ministries and commissions have the right to interpret administrative regulations and rules, which is particularly prominent in the labor law. The question is: 1), the people's court is responsible for the application of the law to the legislature, why does it have the legislative power to formulate the judicial interpretation that judges mainly apply in judicial activities, rather than the first application of the law? The "Several Provisions on Evidence in Civil Proceedings" promulgated by the Supreme People's Court is a typical legislative performance. For example, on March 3, 2002, KLOC-0/,Chengdu Daily A3 reported: "According to the judicial interpretation of" Tomorrow-Media Stealing must not be illegal "published by the Supreme People's Court, it can be seen from this title that the Supreme People's Court is legislating. 2) On the other hand, from the broad legal concept, China's judicial interpretation belongs to the category of China law. The key point is, first of all, the National People's Congress has not enacted the Evidence Law. It should be said that as a judicial interpretation, the Regulations have no written legal basis. This provision is based on the civil procedure law, which solves the problem of evidence law, not the problem of civil procedure. Evidence law seems to be in the position between procedural law and substantive law. 3) This provision has been implemented since April 1 2002. It is estimated that there will be a pattern among judges for a long time, which cannot be changed in the long-term trial activities in the future, even if there are new provisions in the law. This situation is not conducive to the formulation, promulgation, implementation and enforcement of new laws in the future.
Good lawyer network reserves the right to edit.
Good lawyer network reserves the right to edit 4. Misjudged cases and judges' discretion;
In recent years, judicial corruption and unjust, false and misjudged cases are very prominent, and the state and the CPC Central Committee attach great importance to this and have repeatedly expressed their attitudes. The result of judicial corruption is inevitably manifested in the investigation, investigation, trial, collegiate bench, judicial Committee meeting and judgment of the case. If the judges in our country have no discretion, corruption will have nowhere to start and nowhere to stand. On the other hand, the prodigal son who demands more and greater discretion of judges has drowned out waves after waves. It seems that unjust, false and wrong cases are the "bad consequences" caused by the lack of discretion of judges. The essence of the problem lies not in the existence, size and amount of judges' discretion, but in the judicial political system and judicial system. More importantly, there is no substantive supervision mechanism that takes the fundamental interests of the broad masses of the people as the starting point and plays an effective binding role. Why are foreign judges envious? Their free evaluation of evidence is not arbitrary, but limited by long-term legal education, professional ethics and the quality of judges, judge system, legal system, legal provisions and social supervision. What they envy is that you have legal provisions and restrictions, you can go beyond the limited discretion, and you will not bear any responsibility without supervision. Can it be said that on the broad road of human social development, Big Ben will envy Otto's smallness and flexibility? .
Good lawyer network reserves the right to edit.
Good lawyer network reserves the right to edit III. Litigation structure
Good lawyer network reserves the right to edit 1. Concept: the position, function and relationship of civil litigation subject in civil litigation subject activities.
Good lawyer network reserves the right to edit. Litigants: criminal proceedings-public prosecution, law, criminal suspects, incidental civil litigation parties;
Good lawyer network reserves the right to edit civil litigation-the parties, the third party and the court.
Good lawyer network reserves the right to edit. 2. Dual litigation structure mode;
Good Lawyer Network reserves the right to edit (1) The principle of litigants: the judicial power is exercised by the court, the right to appeal belongs to the procuratorate, and the right to appeal belongs to both parties. Trial, litigation and litigation rights are separated, and the parties are in active and active litigation, attack and defense. The litigants are equal, the court maintains the equal litigation rights of both parties, arouses the enthusiasm of participating in litigation, and the judge is in a position of impartiality, neutrality and neutral judgment. Litigation adversary system has more reasonable aspects and contents.
Good lawyer network reserves the right to edit (2), authoritarianism: trial and prosecution, trial and prosecution are not divided. Judicial power has replaced the right of domination and litigation, which shows that the court does everything, which leads to the unequal distance between the court and the parties and cannot equally protect the rights and mutual relations of the parties in litigation. This is a tilted model that violates the principle of neutrality. There are few reasonable aspects and contents of litigation adversary system.
Good lawyer network reserves the right to edit the difference between the two:
In the relationship between the people's court and the parties, where is the initiative in litigation activities, and who will control the substantive content to divide these two theories.
Good lawyer network reserves the right to edit. China model:
At present, we have not built a real judge (that is, there are no high-quality judges), and the courts established are not real national courts, but local courts. The court was subject to local people, money and power. At the National People's Congress in 2002, the Supreme People's Court reported that 28% of the deputies voted against it, and the Supreme People's Procuratorate reported that 27.8% of the deputies voted against it.
Good lawyer network reserves the right to edit. The Anglo-American legal system mainly implements the adversary system, which is also the adversary system in the modern sense. The civil law system mainly practices authoritarianism. At present, based on the major reform in the Supreme People's Court, China's civil litigation structure is basically in a mixed mode, that is, the civil litigation structure mode with litigiousism as the mainstay and authoritarianism as the supplement. It should be said that we are ready to develop this model and are making active efforts.
Good lawyer network reserves the right to edit.
Good lawyer network reserves the right to edit. Fourth, the reform of civil trial mode in China.
Good lawyer network reserves the right to edit. Reform began in the late 1980s. First of all, it turns questioning into pleading. Secondly, the civil court and the economic court will be integrated to form the "Great People's Court". In the basic courts, the People's First Court and the People's Second Court. In the Intermediate People's Court, there are three courts: the First People's Court, the Second People's Court and the Third People's Court. Each court has a court of first instance and a court of second instance.
Good lawyer network reserves the editing right of 1 and judicial justice. Substantive justice is not absolute justice, and procedural injustice is absolute injustice. The parties can tolerate substantive injustice, but not procedural injustice. Several aspects of judge's justice: procedure, entity, image, idea, quality and emotion. At present, the society feels that there are many unjust, false and wrong cases, and only 1-2% of the cases have been corrected through the trial supervision procedures within the court. Entity is the distribution of citizens' rights and obligations; Procedure is the sequence, steps, ways and methods of realizing rights and obligations, the judicial premise and guarantee of realization, and it is attached to the entity. Image is the embodiment of fairness, honesty, sharp thinking, logical judgment and justice. Concept: Do not accept modern legal concepts. Feelings: To make the parties and society feel justice and realize substantive justice, feelings cannot be separated from procedures, and people should feel and see the justice of the trial. Visible justice is realistic justice, while invisible and belated justice is unjust.
Good lawyer network reserves the right to edit II. Efficient. Improve the efficiency of handling cases
Good lawyer network reserves the right to edit 3. Judicial belief and judicial authority. The traditional inquisitorial trial mode and strong authoritarianism in litigation reflect the distortion of modern litigation structure. The parties in civil litigation have no choice but to choose the court. They are not optimistic about the impartiality of the court at all. Indiscriminate trial and prosecution will inevitably lead to the variation of the distance between the judge and the client, the loss of the sense of equidistance, the inevitable loss of justice, and the emergence of first clearing and then trial. The boundary between the preparatory work before the trial and the duties at the trial stage is unclear, resulting in black-box operation, and the trial is a mere formality. Procedural issues should be prepared in the preparatory stage, not substantive issues. The subject and burden of proof are not clear. The judge is in an active position, and the parties have lost their antagonism and enthusiasm. A judge should only have the space to hear cases, and the time (trial limit) is legal and cannot be decided by the judge. Administrative jurisdiction leads to the judge who hears the case has no right to decide the judgment, while the president who is not in charge of the trial has the right to judge, resulting in the separation of trials.
Good lawyer network reserves the right to edit the basic reform path and requirements;
Good lawyer network reserves the right to edit 1 and file a case with the court; Let the judge prepare for the trial of the case is procedural preparation, not substantive preparation. The trial shall be conducted by the trial judge. Judges are classified in order, the clerk can't be a judge, the reserve judge can't hold a court session, the judge and the presiding judge must be qualified, and the presiding judge must pass the presiding judge qualification. 2. Increase the facts of the case. 3. Strengthen evidence analysis and improve the rationality of judgment documents.
Good lawyer network reserves the right to edit the main work of pre-trial preparation (both judges and lawyers need to do it):
Good lawyer network reserves the right to edit 1, be familiar with the litigation materials of both parties, preliminarily define the litigation request (including counterclaim) and the focus of the dispute, do a good job in finding the focus and distinguish the levels:
Good lawyer network reserves the right to edit. Focus: (1), the main issues disputed by the parties; (2) In principle, they are parallel, the particularity comes first, and there is a logical inclusion relationship; (3) It is a substantive referee. Levels: the focus includes levels, which are divided into legal elements according to individual cases; Levels are parallel, and levels do not determine substantive issues. For example, in civil divorce dispute cases, one focus is whether the relationship between husband and wife is broken, and there are three parallel levels: marriage foundation, marriage feelings and divorce reasons, all of which serve the "whether it is broken". Among marital property, there are: marital property, pre-marital property, family property, creditor's rights and debts, securities, investment, deposits and other levels.
Good lawyer network reserves the right to edit II. Organize the parties to exchange evidence:
Good lawyer network reserves the right to edit: article 3, paragraph 1
Good lawyer network reserves the right to edit Article 3 The people's court shall explain the requirements and legal consequences of giving evidence to the parties, and urge them to give evidence actively, comprehensively, correctly and honestly within a reasonable period of time.
Good lawyer network reserves the right to edit (1) and the time when the parties can exchange evidence through consultation; (2) The court shall organize both parties to exchange evidence. The evidence exchange system is implemented, and the agreed or court-decided time for exchanging evidence is the expiration period, and evidence cannot be concealed. After the time limit, the evidence loses its rights. Even if it is submitted, the court will no longer conduct cross-examination. Such evidence will not be accepted by the court, so it is naturally not evidence. So it is impossible to carry out an "evidence attack."
, good lawyer network reserves the right to edit the terms (time limit for proof):
Good lawyer network reserves the right to edit Article 33 The people's court shall serve the notice of case acceptance and the notice of responding to the lawsuit on the parties. The notice of proof shall specify the distribution principle and requirements of the burden of proof, the circumstances in which an application can be made to the people's court for investigation and evidence collection, the time limit for proof specified by the people's court according to the circumstances of the case, and the legal consequences of providing evidence beyond the time limit.
Good lawyer network reserves the right to edit. The time limit for adducing evidence may be agreed upon by the parties through consultation and approved by the people's court.
If the people's court specifies the time limit for adducing evidence, the specified time limit shall not be less than 30 days, counting from the day after the party receives the notice of accepting the case and the notice of responding to the lawsuit.
Good lawyer network reserves the right to edit.
Good lawyer network reserves the right to edit.
Good lawyer network reserves the right to edit. Article 34 The parties shall submit evidence materials to the people's court within the time limit for adducing evidence. If the party fails to provide evidence within the time limit, it shall be deemed as giving up the right to provide evidence.
Good lawyer network reserves the right to edit the evidence materials submitted by the parties within the time limit, and the people's court does not organize cross-examination during the trial. Unless the other party agrees to cross-examine. If a party increases or changes a claim or files a counterclaim, it shall file it before the expiration of the time limit for adducing evidence.
Good lawyer network reserves the right to edit. At this time, the judge should do two things: (1), make a list of evidence that both sides have no objection to; (2) List the evidence of objection and indicate the objection.
Good lawyer network reserves the right to edit. What lawyers need to pay special attention to is that adding or changing litigation claims or filing counterclaims, including jurisdictional objections and supervisor objections, should be filed before the expiration of the time limit for adducing evidence. There is a new conflict here. A, add or change the claim, and the counterclaim should be made within 15 days of the defense, because there is the litigation right and time limit for filing a new defense. B. Jurisdiction objections and supervisor objections need to be raised during the defense period, otherwise the rights may be lost under the current laws and regulations. C. The time limit for evidence exchange stipulated in Article 33 of the Regulations is 30 days, while the time limit for defense stipulated in the Civil Procedure Law is 15 days, which may not be guaranteed during the 30-day evidence exchange.
Good lawyer network reserves the right to edit 3. Hold a pre-trial meeting (or prepare a court). The court can organize pre-trial mediation at this time.
Good lawyer network reserves the right to edit. 4. Understand and be familiar with the laws, regulations, rules and judicial interpretations, legal theories and professional knowledge related to the case.
Good lawyer network reserves the right to edit. 5. Investigate and collect the evidence materials that the people's courts should collect according to their own conditions, and timely carry out the work that needs the people's courts to inspect or entrust the relevant departments to identify, review and evaluate. Whether the court takes evidence is decided by the court, but the parties may apply to the people's court for evidence collection and investigation according to law.
Good lawyer network reserves the right to edit. 6. Whether the parties are qualified, whether there are additional parties or a third party, and whether the limitation of litigation protection is exceeded.
Good lawyer network reserves the right to edit.
Good lawyer network reserves the right to edit evidence, cross-examination and evidence collection (authentication)
Good Lawyer Network reserves the right to edit (1) and related concepts.
Good lawyer network reserves the right to edit 1. Evidence materials: materials submitted by the parties in the course of litigation that have not gone through legal procedures and have not been tried by judges.
Good lawyer network reserves the right to edit. 2. Litigation evidence: In the course of litigation, all the facts that can prove the true situation of the case are recognized and accepted by the judge according to the judicial authority and trial procedures stipulated by law and the rules of litigation evidence.
Good lawyer network reserves the right to edit. Note: Evidence material is not equal to evidence, nor is it litigation evidence, it is the initial material to form evidence. Is the logical starting point of whether it can be transformed into evidence.
Good lawyer network reserves the right to edit 3. Illegal evidence: evidence obtained by infringing upon the legitimate rights and interests of others or violating the prohibitive provisions of the law.
Good lawyer network reserves the right to edit.
Good Lawyer Network reserves the right to edit. the Supreme People's Court replied: The information obtained by recording the conversation without the consent of the other party cannot be used as evidence 1995.03.6.
Good lawyer network reserves the right to edit Hebei Higher People's Court:
Good lawyer network reserves the right to edit. Your request No.39 [1994] has been received. After study, the reply is as follows:
Good lawyer network reserves the right to edit. The evidence obtained must be legal, and only the evidence obtained through legal channels can be used as the basis for finalizing the case. It is illegal to record a conversation without the consent of the other party, and the recorded materials obtained by this means cannot be used as evidence.
Good lawyer network reserves the right to edit, but the application of this reply as civil evidence is very prominent, and in practice, one party will never agree with the other party to obtain evidence.
According to Article 68 of the Regulations, evidence obtained by infringing upon the legitimate rights and interests of others or violating the prohibitive provisions of the law cannot be used as the basis for determining the facts of the case.
Good lawyer network reserves the right to edit 2002.04.0 1. It means that in the future, when the court finds the facts of the case and takes evidence, it will be legal evidence as long as it does not violate Article 68 of the Regulations.
Good lawyer network reserves the right to edit. 4. Three procedural legal obstacles to the transformation of evidence materials into evidence: proof → cross-examination → evidence collection.
Good lawyer network reserves the right to edit. If you fail to provide evidence according to the requirements of burden of proof distribution and the time limit for providing evidence, the first procedural prohibition of "unable to provide evidence" will occur;
Good lawyer network reserves the right to compile and give evidence, but there is no evidence of cross-examination procedure, resulting in the second procedural prohibition of "cross-examination can not be done";
Good lawyer network reserves the right to edit. After the first two procedures, there will be a third procedural prohibition of "not taking evidence" when the judge fails to take evidence.
Good lawyer network reserves the right to edit. Evidence materials can't be transformed into evidence, which eventually forms evidence resistance.
Good lawyer network reserves the right to edit.
Good lawyer network reserves the right to edit (2) and the burden of proof.
The distribution of burden of proof is the core of the content of proof that Good Lawyer Network reserves the editing right;
Good lawyer network reserves the right to edit 1. This proof is who advocates who gives evidence.
Good lawyer network reserves the right to edit the case within the time limit for presenting evidence, which will lead to the loss of the right to present evidence and eventually lose the case. Who advocates who gives evidence refers to the burden of proof and the burden of disproof (citing contrary evidence) that must be given to the plaintiff's claim and the defendant's opposite claim. Including the evidence of the defendant in the counterclaim.
Good lawyer network reserves the editing right and burden of proof related to or relative to this certificate.
Good lawyer network reserves the right to edit (1) rebuttal: rebuttal by proof: to prove that the facts are contrary to the truth of the other party's facts, thus overthrowing the truth or existence of the facts proved by the other party's evidence.
Good lawyer network reserves the right to edit (2) counterclaim: a new lawsuit against the facts and requests advocated in this lawsuit.
Good lawyer network reserves the right to edit (3) contrary evidence: do not admit the evidence and facts of the other party, and present evidence to prove the opposite facts.
Good lawyer network reserves the right to edit (4) rebut evidence: put forward rebuttal opinions or opinions on the defects in the other party's evidence.
Good lawyer network reserves the right to edit. Note: Denial is not included.
Good lawyer network reserves the right to edit II. The burden of proof is reversed.
Good lawyer network reserves the right to edit, and the burden of proof is reversed. The law stipulates that the defendant shall bear the burden of proof for this proof. As a plaintiff, we must first fulfill the responsibility of this place, and then the burden of proof is reversed. The Regulations stipulate the facts presented to the plaintiff under special circumstances. The defendant who denies it shall bear the burden of proof.
Good lawyer network reserves the right to edit 3. Confirm:
Good Lawyer Network reserves the editor's right (1) to admit facts that go beyond the burden of proof or responsibility of the parties. Self-admission is the king of evidence, which is special evidence. Self-knowledge has a fragile shortcoming. (2) admit, beyond the facts stated by the other party, only admit the other party's application. Both admission and commitment can be allowed to apply for cancellation. A confession made in a criminal case due to coercion, major misunderstanding, etc. cannot be used as evidence for a final decision.
Presumption: Presumption is the evidence that may be used as another fact, and the legal consequence is the transfer of the burden of proof. Presumption should comply with the law. Presumption in civil litigation has corresponding provisions in other basic civil laws such as General Principles of Civil Law and Inheritance Law. Article 69 of the Regulations has reinforcement clauses. Legal presumption, factual presumption, strict presumption requirements, (1), and clear basic factual requirements; (2) It is closely related to the presumed facts.
Good lawyer network reserves the right to edit. Presumption in litigation: (1). If an evidence is in the other party's hand, but it is unfavorable to the other party, and the other party does not hand it over, it is presumed that the other party lost the case. (2) Presumption is not evidence, but a rule. The result can be used as evidence of another fact, which belongs to quasi-evidence, and presumption can lead to the burden of proof. (3) the facts determined in advance and the facts determined by the court judgment. (4) notarize the facts. (5) Arbitration facts.
Good lawyer network reserves the right to edit. 5. Judicial cognition: facts that are known to everyone in a certain region and within a certain period of time do not need to be proved. It belongs to the category of evidence.
The above "1, 2" refers to the burden of proof of the parties. "3" is the exemption of the burden of proof of the parties. "4" is the shift of the burden of proof of the parties. "5." Exemption of both parties' responsibilities.
Good lawyer network reserves the right to edit.
Good lawyer network reserves the right to edit (3), cross-examination:
Good Lawyer Network reserves the right to edit cross-examination. Cross-examination is a procedural process in which the parties explain, question, cross-examine, explain, defend, question and debate the authenticity, relevance, legality and probative force of all evidence materials submitted in accordance with the law.
Good lawyer network reserves the right to edit, which is the confrontation between the two parties and the third party around the "three natures" of evidence, not just one aspect of probative force.
Good lawyer network reserves the right to edit. Litigants: plaintiff, defendant, third party and court.
Good lawyer network reserves the right to edit. The court's requirements for obtaining evidence are: obtaining evidence legally and exercising the right of interpretation.
Good lawyer network reserves the authenticity of editing rights: the content reflected by litigation evidence must be objective facts. The objective existence of this fact is the result of people judging it to be true through subjective understanding. The authenticity of the contents of the evidence and the facts themselves. The core is to put an end to forging evidence.
Good lawyer network reserves the right to edit, without major misunderstanding or denial of authenticity. Statutory rules and free evaluation of evidence are inseparable.
Good lawyer network reserves the right of editing relevance: there is an objective internal relationship between litigation evidence and facts to be proved. The objective internal connection is manifested as logical connection and legal connection. For example: causality, form and substance, direct and indirect, accidental and inevitable, internal and external, legal connection, right and wrong.
Good lawyer network reserves the right to edit. Without relevance, there is no ability to prove.
Good lawyer network reserves the legitimacy of editing rights: litigation evidence must be factual materials obtained in accordance with legal requirements and legal procedures. Including the subject of evidence collection, collection procedures and methods, evidence content and the form of evidence itself.
Good lawyer network reserves the right to edit. Authenticity is the basis of relevance, and authenticity and relevance are the premise of legitimacy. As the basis of the final decision, legitimacy must include the truth and connection of the people. None of the "three natures"