The defendant in civil litigation without any evidence witnesses court how to rule

Civil litigation evidence: refers to the objective factual material that can prove the real situation of the civil case. Civil litigation evidence has three most basic characteristics, namely, objective authenticity, relevance and legitimacy. According to the civil litigation law as the standard of civil litigation evidence, the manifestation of civil litigation evidence in China can be divided into documentary evidence, physical evidence, audio-visual materials, witness testimony, party statements, appraisal conclusions, investigation transcripts of seven kinds.

"The supreme people's court on civil litigation evidence of a number of provisions of article 63 provides that:" the people's court shall be able to prove the evidence of the facts of the case as the basis for a decision according to law." Thus establishing the evidence to determine the doctrine. Evidence in civil litigation is to identify the facts of the case is the only carrier, the judge to identify the facts of the case is limited to the evidence in front of the "court", and then can not get the facts of the case from other sources of information, and not because of insufficient evidence and refused to decide. Therefore, the civil litigation evidence is particularly important in the whole trial activities. The admissibility of evidence is directly related to the identification of the facts of the case and the application of the law, is the "cornerstone" of the court's decision.

I. Types of evidence in civil proceedings

1. Refers to the words, symbols, graphics and other recorded content or expression of ideas to prove the case of evidence. The reason why this item is called documentary evidence, not only because of its appearance in written form, but more importantly, it is recorded or expressed content to prove the facts of the case. From the judicial practice, the manifestation of documentary evidence is a variety of forms, from the expression of documentary evidence, there are written, printed, but also engraved, etc.; From the carrier of documentary evidence, there are paper, bamboo, wood, cloth, and stone and so on. And specific forms of expression, common contracts, instruments, bills, trademark patterns and so on. Therefore, the main form of documentary evidence is a variety of written documents, but sometimes also for a variety of items. Documentary evidence in civil litigation is commonly used in a kind of evidence, in civil litigation plays a very important role.

2. Physical evidence. Physical evidence refers to the evidence to prove the facts of the case by the shape, quality, specifications and characteristics of its existence. Physical evidence is through its external characteristics and its own embodied attributes to prove the real situation of the case, it is not subject to the influence and constraints of people's subjective factors. Therefore, physical evidence is one of the important evidence in civil litigation. Common physical evidence in civil litigation are: the subject matter of the dispute (houses, goods, etc.); infringement of the damaged objects (processed goods, clothing, etc.); left traces (marks, fingerprints) and so on.

3. Audio-visual materials. Audio-visual materials, refers to the use of audio, video, electronic computer stored information and data to prove the facts of the case a kind of evidence. It includes video tapes, audio recordings, facsimile information, movie film, microfilm, telephone recordings, radar scanning information and computer storage data and information. Foreign civil procedure law generally do not treat audio-visual materials as an independent type of evidence, only to be categorized into the types of documentary and physical evidence, China's civil procedure law in view of its independent characteristics, it will be categorized as a class of independent evidence to be used.

4. Witness testimony. Witnesses are people who know the facts of the case and testify in court at the request of the parties and the court's subpoena, and the statements made by the witnesses to the court on the facts of the case are called witness statements.

5. Statement of the parties. Party statement refers to the parties in the litigation on the facts related to the case, the statement made to the court. Party statement as a kind of evidence is our country's civil litigation evidence categories are divided into features. The parties are the main body of civil litigation legal relations, due to the outcome of the litigation has a direct interest in the decision of the parties to the statement of the real and false coexist characteristics. Therefore, the trial judge in the use of this evidence should pay attention to prevent false evidence as the basis for determining the facts of the case, for the parties' statements should be combined with other evidence in the case for examination and verification, in order to determine as the basis for determining the facts of the case.

6. appraisal. Refers to the use of professional knowledge, expertise in the case of specialized issues in the analysis, identification, judgment made after the conclusion, known as the appraisal conclusion. Identification of civil litigation has a wide range of conclusions and diversity, usually medical conclusions, paperwork conclusions, traces of conclusions, accident conclusions, product quality conclusions, accounting conclusions, behavioral capacity conclusions and so on.

7. The investigation transcript. Refers to the people's court judges, in the process of litigation, in order to ascertain certain facts, and the case of controversy related to the scene, objects or objects personally or designate the relevant personnel to carry out inspection, photography, measurement of the record.

Second, the civil litigation evidence

Civil litigation evidence is submitted to the court, the judge in accordance with the provisions of the law on the evidence to review the judgment and decide whether to adopt as a basis for determining the facts of the case. Visible, the civil litigation evidence is to review the civil litigation evidence, mainly as a basis for evidence to be excluded, it can be said that the civil litigation evidence is actually a "screening" process of evidence. Mainly from the following aspects of the review:

1.1.time limit for proof. China's civil litigation law only stipulates that the parties have the responsibility to prove, but not the parties to prove the time limit. At present, the theoretical community on the issue of limitation of proof of divergent views. There are views that the parties to the evidence is both an obligation of the parties, but also a right of the parties, so the parties have the right to put forward evidence at any stage of the trial and trial court, the court can not be limited, the provisions of the statute of limitations on the evidence is equal to limit the party's right to litigation; There are views that China's current civil litigation law does not provide for the statute of limitations on the evidence, the parties can be "at any time" at any stage of the trial. At any stage of the trial, the parties can "at any time" to put forward evidence, easy to cause the litigation of the sudden attack and litigation delay, thus undermining the effectiveness of the litigation and justice, in order to truly implement the party's burden of proof, must be established in the system of limitation of proof, before a certain stage, if the party can not or did not put forward the evidence, should bear the legal consequences of their own disadvantage. Due to our relevant laws on the issue of time limit for proof has not been stipulated, the operation of the practice is relatively confusing, the practice is not uniform. Some of the provisions of the first instance hearing before the parties must provide evidence; some of the provisions of the parties should be submitted to the court of first instance before the evidence; some of the provisions of the parties must be submitted to the evidence within the first trial; there are also provisions of the parties in the second trial stage can still be submitted to the evidence. The author believes that the parties to the evidence of uncertainty or the parties do not on time, often affect the efficiency of civil litigation, increase the cost of litigation, increase the other party to the burden of litigation, the more critical is prone to make the trial activities by the parties to the invisible constraints on evidence, resulting in the passive nature of the trial activities and the results of the judgment is not certain. Therefore, the establishment of the time limit system is very necessary, generally will be limited to the time limit for the parties to the court of first instance before the hearing; if the parties to the evidence submitted before the expiration of the time limit is difficult, should be in the time limit for the expiration of the people's court application for an extension of the time limit for the people's court agrees, may be appropriately extended; for the second trial or retrial, a party to put forward new evidence, requesting that the original decision be reversed or changed

2. Unlawful evidence exclusion. Evidence must be obtained in a lawful manner, including the source of evidence and the means and methods of evidence must be lawful, the people's court and litigation agents to investigate and obtain evidence should also comply with legal procedures. The supreme people's court "on the application of the Chinese people's * * * and national civil procedure law," article 70 provides: "the people's court to collect and investigate the evidence, should be more than two people * * * with. The investigation materials shall be signed or sealed by the investigator, the person being investigated, and the person recording the investigation." The collection of investigative evidence by a litigation agent shall also be conducted by two persons * * * together. Article 28 of the Rules for the Operation of Legal Services in Townships, issued by the Ministry of Justice in September 1991, provides that "an agent holding a certificate of a township legal service office and a certificate of a township legal worker shall investigate and obtain evidence from the relevant units and individuals, and the investigation shall generally be conducted by two persons and shall make a transcript. After the investigation transcript is checked for accuracy by the person being investigated, the investigator, the recorder, and the person being investigated shall sign or stamp." Lawyer as an agent to investigate the evidence must be two people **** with, lawyers and lawyers law are not clearly stipulated in the provisional regulations, the theory, the judicial sector also have different understanding. Some insiders believe that the lawyer investigation and evidence collection should also be two lawyers or a lawyer and a paralegal *** with, so as not to be in a disadvantageous position in the litigation, especially when acting as a criminal defense, such as being accused of suspected of conspiracy to provide perjury and other dangers. This is based on the awareness of improving the lawyer's self-protection consciousness and self-protection ability to recognize. The author believes that, as a litigation agent, lawyers and other legal workers are not essentially different, the purpose is to maximize the maintenance of the legitimate rights and interests of the parties. Especially in civil litigation, the litigation status of the parties are equal, as a litigation agent of lawyers and legal workers should enjoy the same rights, so lawyers should be investigated and evidence collection two **** with the appropriate. Suggests the supreme people's court or the ministry of justice to make clear provisions, in order to standardize the investigation and evidence collection procedures. Strictly prohibit the use of illegal methods of evidence collection. According to the provisions of the law and judicial interpretations, illegal collection of evidence in the following cases: falsification of evidence; bribery, coercion of witnesses to testify or instructing others to perjure themselves; to infringe on the legitimate rights and interests of others or violation of legal prohibitions on the method of obtaining evidence. Evidence obtained illegally cannot be used as the basis for determining the facts of a case. It should be noted that previously the supreme people's court will be without the consent of the relative secretly recorded conversation materials included in the scope of illegal evidence, however, the supreme people's court on civil litigation evidence of a number of provisions of the supreme people's court to water down this provision, is very human and rationalization. In fact, in real life, due to the development of productive forces and people's growing need for material and cultural life of the contradiction, social integrity crisis still exists to a certain extent, in the parties to collect evidence on their own with the consent of the other party and then record the success rate of the conversation materials is almost zero. Only in the case of secret recording is possible to obtain real evidence. Therefore, the supreme people's court on civil litigation evidence of a number of provisions of the relatively more scientific and reasonable, easier to operate.

3. The admissibility of evidence. The admissibility of evidence is the title of the common law system, the civil law countries in the evidence of jurisprudence with the most similar concept is the ability to evidence. In the common law system, the admissibility of evidence is mainly related to the relevance and legitimacy of the evidence, that is, reflects the relevance of the character of the rules of evidence requirements. Although the civil law system countries have also formulated illegal evidence exclusion rules, but generally on the qualification of the evidence is not strict, the examination and determination of the evidence to prove the core. In our country's evidence theory, generally the evidence capacity and the traditional evidence theory of the so-called legitimacy corresponds to, and the proof of evidence reflects the relevance and objectivity. In short, the legitimacy of evidence is closely linked with the admissibility of evidence or the concept of evidence capacity, a reasonable grasp and definition of the concept of legitimacy of the evidence of the connotation and extension of the evidence will directly affect the qualification of the evidence. Specifically, including the legitimacy of the main body of evidence, the legitimacy of the form of evidence, as well as the legitimacy of the evidence collection methods and procedures. But not as long as the evidence is not legitimate are not admissible. Different countries have different criminal procedure values: common law countries emphasize the value of protection, so the qualification of evidence is more strict; civil law system is relatively focusing on the value of litigation control, and thus the exclusion of evidence to hold a more cautious attitude, generally do not qualify for evidence to make strict restrictions. First, the legitimacy of the subject of evidence. Evidence collected or provided by the subject is not legal, the evidence formed is not admissible. Non-judicial organs in the judicial organs in accordance with the relevant administrative, disciplinary inspection, supervision and other regulations before the case of the investigation records made in accordance with the procedures specified in the regulations, such as the occurrence of the death of the investigated person, exit and other special circumstances can not be evidence, by the court of the original process of authenticity of the evidence collection, legality (in line with the administrative, disciplinary inspection, supervision of the relevant provisions of the investigation and evidence collection) after investigation and verification, can be used as evidence. The legality of the form of evidence. The form of evidence mainly refers to the provisions of the law on the type of evidence and the formal requirements, the witness should be a natural person, the unit can not be a witness. The legality of the method of evidence. In view of the illegally obtained physical evidence of the possibility of false small, high credibility, the attributes and state of the evidence is generally not due to the method of obtaining evidence of the illegality of the change, therefore, in principle, has the admissibility; for the witness only to inquire about the location, formalities and other general violations of the law as a reason for denying the authenticity of their original testimony, can be made by the witnesses to give a reasonable explanation, after investigation does exist may lead to the reasons for their untruthfulness of their testimony, its In this illegal deposition under the testimony is not admissible, but there is no such thing, the court shall combine the witness before and after the testimony to determine the truth of his original testimony.

4. Allocation of the burden of proof. First of all, the allocation of the burden of proof is a special rule - the principle of good faith and the application of the principle of fairness. The principle of good faith in civil procedure law from the ancient Roman "good faith litigation", it gives the judge to the integrity and fairness and justice principle of the power to adjudicate cases. Because the written law countries will face the same awkward situation: the relative lag of the law can not be comprehensive coverage of the ever-changing social conditions. This limitation is not only reflected in the substantive law, also exists in a large number of procedural law, especially in the evidence system, because the judge can not be allocated to the burden of proof completely legalism, therefore, the judge in the absence of express provisions of the law, the principle of good faith as the principle of its allocation of behavior. This is undoubtedly the basis for judges to enjoy discretionary power, which is of great significance in overcoming the limitations of statutory law. And the principle of fairness, as the name suggests, is the norm of justice and equality, the judge in the process of evidence allocation not only to pay attention to the fairness of the distribution results, but also to take into account the fairness of the distribution process. The principle of fairness and the principle of good faith throughout the value of the judge to allocate the burden of proof of the whole process, whether it is the general rules of allocation of the burden of proof, or the inversion of the burden of proof, or the burden of proof in special circumstances should be applied. In judicial practice, violation of the principle of good faith and fairness is the most common phenomenon is the obstruction of proof, refers to a party has the burden of proof, but due to the other party due to intentional or negligence in the litigation of the existence of the only evidence of the loss or can not be put forward, so as to be unable to prove their own claims, leading to the fact that in the state of truth is not clear that this special litigation phenomenon. The implementation of the evidence to hinder the behavior of the party to hinder the smooth progress of the litigation to bear certain punitive consequences, the law requires it to bear more litigation in the risk of losing is the essence of the principle of procedural due process. At the same time, the establishment of evidence of obstruction of supporting evidence system is very necessary. On this basis, we believe that the following two kinds of obstacles to the implementation of the burden of proof transfer: First, intentional destruction of evidence or forged evidence to prevent others from testifying or instructing others to commit perjury, and second, due to intentional or grossly negligent behavior caused by the litigation of the only evidence of the loss.