According to 200 1 Provisions of the Supreme People's Court on Evidence in Civil Proceedings, there are two kinds of new evidence in the second trial procedure:
1, newly discovered evidence after the trial of first instance;
2. Before the expiration of the time limit for adducing evidence in the first instance, the parties concerned shall not be allowed to apply to the people's court for investigation and evidence collection, and the court of second instance shall, after examination, consider that they should be allowed and obtain evidence according to the application of the parties concerned.
However, the 20 12 Civil Procedure Law and its judicial interpretation relax the overdue evidence, which does not necessarily lead to the loss of rights of the overdue evidence, but essentially expands the scope of new evidence. Whether the overdue evidence meets the conditions of new evidence requires the people's court to review and draw a conclusion.
Although the Rules of Evidence does not stipulate the review of overdue evidence and related procedural requirements, the review content is implied in the provisions on how to judge new evidence. In the second trial procedure, if the reasons for the overdue evidence can be established, it will be transformed into new evidence in the second trial.
1. Article 41 of "Several Provisions of the Supreme People's Court on Evidence in Civil Procedure" stipulates: "The" new evidence "stipulated in the first paragraph of Article 125 of the Civil Procedure Law includes the following two situations:
(1) New evidence in the procedure of first instance. Including: the evidence newly discovered by the parties after the expiration of the first-instance proof period; Evidence that the parties concerned cannot provide within the time limit for adducing evidence due to objective reasons, but cannot provide within the extended time limit with the permission of the people's court.
(2) New evidence in the second trial procedure. Including: newly discovered evidence after the trial of first instance; If the party concerned fails to apply to the people's court for investigation and evidence collection after the expiration of the time limit for adducing evidence in the first instance, the court of second instance shall, after examination, consider that it should be allowed, and shall collect evidence according to the application of the party concerned.
Second, the time for presenting new evidence in the second instance.
If the parties present new evidence in the procedure of second instance, they shall present it before or during the trial of second instance; If the second instance does not need to be heard in court, it shall be put forward within the time limit specified by the people's court. The evidence provided by the parties after the expiration of the time limit for adducing evidence is not new, and the people's court shall not accept it. If the parties have been allowed by the people's court to postpone the presentation of evidence, but due to objective reasons, they have not provided it within the permitted time limit, which may lead to unfair judgment, the evidence provided by the parties may be regarded as new evidence.
Third, the review of new evidence in the second instance.
The evidence rules of 200 1 adopt the principle of losing the right of overdue evidence, and the consequences of losing the right will only happen under special circumstances. However, in the process of amending the Civil Procedure Law of 20 12, the "additional burden of proof" was adopted, that is, if the party fails to provide evidence for legitimate reasons, the evidence is allowed as an exception to the consequences of incapacitation, but the party bears the burden of proof for the existence of legitimate reasons for providing evidence for the delay. The new judicial interpretation has also implemented this concept, ensuring the fairness of litigation and standardizing the litigation order.
In the second instance, the review of new evidence mainly depends on the subjective process of the parties' overdue provision of evidence to determine whether there is intentional or gross negligence. According to the degree of fault, different responsibilities and consequences apply. The specific review is as follows:
1. Due to intentional or gross negligence, the parties cannot provide evidence. In principle, evidence is invalid, but if the evidence involves the proof of basic facts, it will not lead to invalidation, but it will be admonished and fined.
2 due to intentional or gross negligence, the parties can not provide evidence. In this case, there is no consequence of losing the right to evidence, and the people's court should adopt it, but the parties should be admonished.
3. If a party fails to provide evidence within the time limit, it cannot exempt the other party from the responsibility of demanding compensation for the corresponding losses. If the other party requests compensation for the increased expenses such as transportation, accommodation, meals and lost time due to the overdue provision of evidence, the people's court may support it.