Article 63 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings stipulates: "The people's court shall make a judgment according to the facts of the case proved by evidence." Therefore, the principle of evidence appraisal is established. Evidence appraisal in civil litigation is the only carrier to find out the facts of a case. The basis of the judge's determination of the facts of the case is limited to the evidence before him, and it is impossible to obtain the relevant information of the facts of the case from other channels, let alone refuse the judgment because of insufficient evidence. Therefore, the identification of evidence in civil proceedings is particularly important in the whole trial. The admissibility of evidence is directly related to the determination of the facts of the case and the application of the law, and is the "cornerstone" of the court's judgment.
I. Types of evidence in civil proceedings
1. Written evidence. It refers to the evidence that proves the truth of the case with the contents recorded by words, symbols, graphics and other concepts. This kind of article is called documentary evidence, not only because it appears in written form, but more importantly, what it records or expresses can prove the facts of the case. Judging from the judicial practice, there are various forms of documentary evidence, such as documentary evidence, confirmation and engraving. From the carrier of documentary evidence, there are paper, bamboo, cloth and stone. In terms of specific forms of expression, there are common contracts, bills, bills, trademark patterns and so on. Therefore, the main forms of documentary evidence are various written documents, but sometimes it is also various items. Documentary evidence is a kind of evidence widely used in civil litigation and plays a very important role in civil litigation.
2. Physical evidence. Physical evidence refers to the evidence that proves the facts of a case by its shape, quality, specifications and characteristics. Physical evidence proves the true situation of the case through its external characteristics and its own attributes, and is not influenced and restricted by human subjective factors. Therefore, physical evidence is one of the important evidences in civil litigation. Common physical evidence in civil litigation includes: controversial subject matter (houses, articles, etc.). ); Articles damaged by infringement (processed articles, clothes, etc.). ); Traces (traces, fingerprints) and so on.
3. Audio-visual materials. Audio-visual materials refer to a kind of evidence to prove the facts of a case by using audio and video recordings, information and data stored in electronic computers, etc. It includes video tapes, audio recordings, fax materials, films, microfilms, telephone recordings, radar scanning materials and computer-stored data and materials. Generally speaking, foreign civil procedure law does not regard audio-visual materials as an independent type of evidence, but only divides them into documentary evidence and physical evidence. In view of its independent characteristics, China's civil procedure law lists it as an independent type of evidence and applies it.
4. Eyewitness testimony. A witness refers to a person who knows the facts of a case and is summoned by the court to testify at the request of the party concerned. The statement made by the witness to the court about the facts of the case is called witness testimony.
5. Statement of the parties. The statement of the parties refers to the statement made by the parties to the court on the facts related to the case in the lawsuit. As a kind of evidence, the statement of the parties is a feature in the classification of evidence in civil litigation in China. The parties are the main body of the legal relationship in civil litigation. Because it has a direct interest in the outcome of the lawsuit, the statements of the parties are true and false. Therefore, when using this evidence, the judge should pay attention to prevent false evidence as the basis for determining the facts of the case, and review and verify the statements of the parties in combination with other evidence in this case to determine the basis for determining the facts of the case.
6. Appraisal conclusion. It refers to the conclusion made by the appraiser after analyzing, discriminating and judging the specialized problems in the case by using professional knowledge and technology, which is called the appraisal conclusion. Appraisal conclusions in civil litigation are wide and varied, including medical appraisal conclusions, document appraisal conclusions, trace appraisal conclusions, accident appraisal conclusions, product quality appraisal conclusions, accounting appraisal conclusions, behavioral ability appraisal conclusions and so on.
7. interrogation record. It refers to the record that the judges of the people's court personally inspect, photograph and measure the scene, articles or objects related to the case dispute or appoint relevant personnel to inspect, photograph and measure them in order to find out some facts in the course of litigation.
Second, the identification of evidence in civil litigation.
After the civil litigation evidence is submitted to the court, the judge shall examine and judge the evidence according to law and decide whether to adopt it as the basis for determining the facts of the case. Evidently, the identification of evidence in civil litigation is to examine and judge the evidence in civil litigation, mainly to exclude the evidence that obviously cannot be used as the basis for deciding a case. It can be said that the admissibility of evidence in civil litigation is actually a process of "screening" evidence. Mainly from the following aspects to review:
1. Limitation of evidence. China's civil procedure law only stipulates that the parties bear the burden of proof, but does not stipulate the time limit for the parties to provide evidence. At present, theoretical circles have different views on the limitation of probative force. Some people think that it is both the obligation and the right of the parties to give evidence, so the parties have the right to give evidence at any trial stage and in the trial court, and the court cannot restrict it. Setting a time limit for proof is equivalent to limiting the litigation rights of the parties; Some people think that there is no time limit for presenting evidence in China's current civil procedure law, and the parties can present evidence "at any time" at any stage of the trial, which is easy to cause a sudden attack, delay the lawsuit and damage the efficiency and justice of the lawsuit. In order to truly implement the burden of proof of the parties, it is necessary to establish a time limit system for proof. Before a certain stage, if the parties are unable or unable to give evidence, they shall bear the adverse legal consequences. Because there is no stipulation about the time limit of proof in the relevant laws of our country, the operation in practice is rather chaotic and the practices in different places are not uniform. Some stipulate that the parties must provide evidence before the trial of the first instance; Some stipulate that the parties shall submit evidence to the collegial panel of the court of first instance; Some stipulate that the parties must submit evidence within the time limit of first instance; It is also stipulated that in the second trial stage, the parties can still submit evidence. The author believes that the uncertainty of the time limit for the parties to give evidence or the failure of the parties to give evidence on time will often affect the efficiency of civil litigation, increase the litigation cost and increase the litigation burden of the other party. More importantly, it is easy to make the trial activities invisible to the parties to give evidence, resulting in the passivity of the trial activities and the uncertainty of the judgment results. Therefore, it is necessary to establish a time limit system for proof, which is generally limited to the time limit for the parties to give evidence before the trial in the court of first instance; If it is really difficult for a party to submit evidence before the expiration of the time limit for adducing evidence, it shall apply to the people's court for an extension before the expiration of the time limit for adducing evidence, which may be appropriately extended with the consent of the people's court; During the second trial or retrial, if the parties present new evidence and request to cancel or change the original judgment, it will not be accepted in principle unless there are special circumstances, and it will be regarded as giving up the right of proof in the first trial stage and bearing the legal consequences of not giving evidence, so as to maintain the seriousness and stability of the court's judgment.
2. Exclude illegal evidence. The way of obtaining evidence must be legal, including the source of evidence and the means and methods of obtaining evidence. People's courts and agents ad litem shall also observe legal procedures when investigating and collecting evidence. Article 70 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC) stipulates: "The evidence investigated by the people's court shall be collected by two or more persons. The investigation materials shall be signed or sealed by the investigator, the respondent and the recorder. " An agent ad litem shall also be jointly investigated and collected by two persons. Article 28 of the Detailed Rules for the Work of Township Legal Service Offices 199 1 issued by the Ministry of Justice in September stipulates: "An agent shall hold the Certificate of Township Legal Service Office and the Certificate of Township Legal Worker to investigate and collect evidence from relevant units and individuals. In general, the investigation should be conducted by two people and recorded. After the investigation record is verified by the respondent, it shall be signed or sealed by the investigator, recorder and respondent. " Whether lawyers, as agents, must investigate and collect evidence together is not clearly stipulated in the "Provisional Regulations on Lawyers" and the "Lawyers Law", and theoretical and judicial circles also have different understandings. Some insiders believe that lawyers' investigation and evidence collection should also be carried out by two lawyers or a lawyer and a paralegal to avoid being at a disadvantage in litigation, especially in criminal defense, such as being accused of collusion and perjury. This is based on improving lawyers' awareness and ability of self-protection. The author believes that lawyers, as agents ad litem, are not essentially different from other legal workers, and all aim at protecting the legitimate rights and interests of the parties to the maximum extent. Especially in civil litigation, litigants have equal litigation status, lawyers and legal workers as litigation agents should enjoy equal rights, and lawyers should jointly investigate and collect evidence. It is suggested that the Supreme People's Court or the Ministry of Justice make clear provisions to standardize the investigation and evidence collection procedures. It is forbidden to collect evidence by illegal means. According to the provisions of laws and judicial interpretations, there are several cases of illegally collecting evidence: forging evidence; Bribery, coercion of witnesses to testify or instigation of others to commit perjury; Evidence obtained by infringing upon the lawful rights and interests of others or violating the prohibitive provisions of the law. Illegally obtained evidence cannot be used as the basis for determining the facts of a case. It should be noted that in the past, the Supreme People's Court classified the conversation materials recorded secretly without the consent of the other party as illegal evidence, but "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings" diluted this provision, which was very humane and rational. In fact, in real life, due to the contradiction between the development of productive forces and people's growing needs for material and cultural life, the crisis of social integrity still exists to a certain extent. When the parties take evidence on their own, the success rate of recording conversation materials with the consent of the other party is almost zero. Only in the case of secret recording can real evidence be obtained. Therefore, "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings" is relatively more scientific, reasonable and easy to operate.
3. Admissibility of evidence. Admissibility of evidence is the title of Anglo-American law system, and the concept with the closest meaning in the evidence law of civil law countries is evidence ability. In Anglo-American legal system, the admissibility of evidence is mainly related to the relevance and legality of evidence, that is, it embodies the requirements of character evidence rules related to relevance. Although the countries of civil law system have also formulated the exclusionary rules of illegal evidence, the restrictions on the qualification of evidence are generally not strict, and the core of examining and determining evidence is probative force. In China's evidence theory, the ability of evidence generally corresponds to the so-called legitimacy in traditional evidence theory, while the probative force reflects the relevance and objectivity of evidence. In a word, the legality of evidence is a concept closely related to the admissibility or ability of evidence. A reasonable grasp and definition of the connotation and extension of the concept of legality of evidence will directly affect the identification of evidence qualification. Specifically, it mainly includes the legitimacy of the subject of evidence collection, the legitimacy of the form of evidence and the legitimacy of the methods and procedures of evidence collection. But not all illegal evidence is unacceptable. Different countries have different values of criminal proceedings: Britain and the United States emphasize the value of protection, so they have a strict grasp of the qualification of evidence; The civil law system pays more attention to the value of litigation control, is cautious about the exclusion of evidence, and generally does not strictly limit the qualification of evidence. First of all, we must obtain the legitimacy of the subject. The subject who collects or provides evidence is illegal, and the resulting evidence will not be accepted. The investigation records made by non-judicial organs in accordance with the procedures prescribed by the relevant administrative, discipline inspection and supervision before the judicial organs put the case on file can be used as evidence after the court investigates and verifies the authenticity and legality of the original evidence collection process (in line with the relevant administrative, discipline inspection and supervision regulations on investigation and evidence collection) in the case of the death or exit of the investigated personnel. The legitimacy of the form of evidence. The form of evidence mainly refers to the provisions and formal requirements of the law on the types of evidence. The witness should be a natural person, and the unit cannot be a witness. Legality of evidence collection methods. In view of the fact that the illegally obtained material evidence is unlikely to be false and has high credibility, the nature and state of the evidence will generally not change because of the illegality of the evidence collection method, and it can be accepted in principle; If a witness denies the authenticity of his original testimony only for general illegal reasons such as the place and procedure of inquiry, the witness can make a reasonable explanation. If after investigation, there is indeed a reason that may lead to the truthfulness of his testimony, his testimony under such illegal evidence collection will not be accepted, but if there is no such reason, the court should comprehensively judge the authenticity of his original testimony by combining the testimonies of witnesses before and after.
4. Distribution of burden of proof. The first is the application of the special rules of burden of proof distribution-the principle of good faith and the principle of fairness. The principle of good faith in the civil procedure law originates from the "good faith litigation" in ancient Rome, which gives judges the power to judge cases with the principles of good faith and fairness and justice. Because all countries with written laws will face the same embarrassing situation: the relative lag of laws cannot completely cover the ever-changing social situation. This restriction exists not only in substantive law, but also in procedural law, especially in the evidence system. Because judges can't completely adopt legalism in the distribution of burden of proof, in the absence of explicit provisions in law, judges should take the principle of good faith as the principle of their distribution. This is undoubtedly the basis for judges to enjoy discretion, which is of great significance to overcome the limitations of written law. The principle of fairness, as its name implies, is the standard of justice and equality. Judges should not only pay attention to the fairness of distribution results, but also pay attention to the fairness of distribution process. The values of fairness principle and good faith principle are embodied in the whole process of allocating the burden of proof by judges, which are applicable not only to the general rules of allocating the burden of proof, but also to the inversion of the burden of proof and the burden of proof under special circumstances. In judicial practice, the most common phenomenon that violates the principles of good faith and fairness is the obstacle of proof, which refers to a special litigation phenomenon in which one party bears the burden of proof, but the other party loses or cannot produce the only evidence in the lawsuit intentionally or negligently, resulting in the fact that the truth is unknown and cannot prove his claim. The party who commits the act of obstructing evidence should bear certain punishment consequences for obstructing the smooth progress of litigation, and it is the essential requirement of the principle of procedural due process that the law requires him to bear more risk of losing the case. At the same time, it is necessary to establish a supporting system of obstructing evidence. On this basis, we believe that the burden of proof should be shifted to the following two obstacles: first, deliberately destroying or forging evidence, preventing others from testifying or instructing others to commit perjury; Second, intentional or serious negligence leads to the loss of the only evidence in the lawsuit.