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On the Principle of Common Evidence in Chinese Civil Litigation

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2020, (29), pp.1-26
  • DOI : 10.31839/ibt.2020.04.29.1
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : March 4, 2020
  • Accepted : April 24, 2020
  • Published : April 30, 2020

Bao,Bing-Feng 1 WangYue 1

1西南政法大学

Accredited

ABSTRACT

In recent years, in China's civil procedure, the traditional “family -oriented” and “non-lawsuit” litigation system has gradually transitioned to a litigant-dominated litigation system. The non-binding debating principle is moving towards the binding debating principle The rise of the third wave of procedural guarantee theory and its institutionalized reference is rising in the field of comparative law. But in judicial practice, Due to the lack of in-depth research on the legal basis of the common principle of evidence and the unified regulation of practical operation, Judges often go their own ways and fail to fully exercise the right of interpretation and inquiry, and fail to conduct typo logical analysis combined with the update of the theory of joint action, Therefore, causes to the party's surprise judgment, has harmed its entity interest and the procedure interest. Based on the previous theoretical research on the common principle of evidence, This paper makes a preliminary analysis of this problem by combining the theory of surprise judgment prevention and the overseas investigation of the type of joint action. Although it does not cover all types of cases, the core considerations are clear. The most cost-effective choice between respecting the psychological expectation of the parties and making full use of the litigation resources is also an inevitable result of the legal effect of the surprise judgment prevention theory in the application of the common principle of evidence.

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