"Key Laws"?

article 63 there are the following types of evidence:

(1) documentary evidence; ?

(2) physical evidence; ?

(3) audio-visual materials; ?

(4) witness testimony; ?

(5) statements of the parties; ?

(6) appraisal conclusion; ?

(7) record of inspection. ?

the above evidence must be verified before it can be used as the basis for ascertaining the facts. ?

article 74 in the case that the evidence may be lost or difficult to obtain later, the participants in the proceedings may apply to the people's court for the preservation of the evidence, and the people's court may also take the initiative to take preservation measures. ?

"relevant provisions" Articles 46 and 68 of the Arbitration Law; Articles 8-9, 13, 23, 67 and 74 of the Provisions on Evidence in Civil Action; Article 58 of the Trademark Law; Article 5 of the Copyright Law. ?

"meaning decomposition"?

1? What kind of evidence?

The types of evidence in civil proceedings refer to the seven forms of evidence stipulated in Article 63 of the Civil Procedure Law. The examination method of judicial examination is to ask candidates to distinguish these categories. The key and difficult points are:

(1) the difference between documentary evidence and physical evidence. ?

Documentary evidence refers to the evidence that proves the facts of a case by the contents and meanings recorded or expressed in words, symbols and figures. Physical evidence refers to the articles that prove the facts of the case by their external characteristics and material attributes, that is, their existence, shape and quality. ?

① The important difference between the two is that the distinguishing standard lies in what the same object proves the facts of the case. If the evidence is based on its content, that is, ideological content, it is documentary evidence; If it is proved by material form, it is material evidence. ?

② The same object can be both documentary evidence and physical evidence. ?

(2) The statements of the parties are different from the testimony of witnesses. The two will not cross, because the witness is not the party, so the witness testimony will not become the statement of the party in the same case. ?

2? Evidence preservation in litigation?

(1) Applicable conditions:?

① evidence may be lost; ?

② Evidence is difficult to obtain in the future. ?

(2) startup mode:?

① the litigant participants (parties in a broad sense) apply; Or,?

② the people's court is ex officio. ?

note: in litigation, it is not necessarily the plaintiff who applies for evidence preservation, but the defendant may also apply for evidence preservation. This is different from property preservation. ?

(3) application period: when applying for evidence preservation, the parties shall submit the application no later than seven days before the expiration of the time limit for adducing evidence. ?

(4) guarantee: the people's court may require the applicant to provide corresponding guarantee. Note that it is not necessary to ask for a guarantee. ?

3? Pre-litigation evidence preservation?

(1) Applicable conditions:?

The main test sites are in trademark and copyright cases, which are applicable to: in order to stop the infringement (trademark and copyright), if the evidence may be lost or difficult to obtain later. ?

(2) Starting mode: the trademark registrant or interested party applies to the people's court; The copyright owner or copyright-related obligee may apply to the people's court. ?

before the lawsuit, it is generally the obligee or other interested party who will become the plaintiff who applies for evidence preservation. ?

(3) guarantee: the people's court may order the applicant to provide a guarantee, or it may not require the applicant to provide a guarantee; However, if the people's court orders the applicant to provide a guarantee, and he fails to provide a guarantee, the applicant's application shall be rejected. ?

(4) rescission of the protective measures: if the applicant does not bring a lawsuit within 15 days after the people's court takes the protective measures, the people's court shall rescind the protective measures. ?

(5) Impact on the jurisdiction of litigation cases: Unlike property preservation, in trademark rights and copyright cases, evidence preservation does not affect the jurisdiction of the case. ?

4? Proof object?

the object of proof refers to the fact that the participants in the proceedings and the court use evidence to prove that it is of legal significance to the settlement of the case. For this test center, the main points are:

(1) The fact that needs to be proved by evidence is the object of proof. It is generally believed that the object of proof includes the following contents:

① the legal facts about the substantive rights and interests advocated by the parties; ?

② procedural legal facts advocated by the parties; ?

③ evidential materials; ?

④ Customary, local regulations (mainly referring to those not in the court area) and foreign laws; ?

⑤ special experience rules: mainly refer to the specialized experience rules of special industries. ?

focus on points ③ and ④ above. ?

(2) Facts that need not be proved?

as for the content of this fact, the opinions of the people's litigation and the provisions on evidence of the people's litigation have stipulated this. Based on these regulations,

there are mainly the following situations:

① natural laws and theorems; ?

② facts admitted by the parties: one party explicitly acknowledged the facts of the case stated by the other party; ?

③ well-known facts; ?

④ another fact that can be inferred according to the law or the known facts and the rules of daily life experience; ?

⑤ the facts that have been confirmed by the legally effective judgment of the people's court; ?

⑥ facts that have been confirmed by the effective award of the arbitration institution; ?

⑦ Facts that have been proved by valid notarial documents. ?

it should be noted that all the above contents without proof are not without proof:?

A? For item (2), (a) is limited to cases in which the other party explicitly acknowledges it in the course of litigation, except for cases involving identity relations. ?

(b) If a fact stated by one party has not been acknowledged or denied by the other party, and the judge has fully explained and asked, but he still does not clearly affirm or deny it, it shall be regarded as an acknowledgement of the fact. ?

(c) If a party entrusts an agent to participate in the litigation, the agent's recognition shall be deemed as the party's recognition. However, there are exceptions: the fact that an agent without special authorization directly admits the other party's claim is not an effective admission, and there are exceptions to this exception: in this case, if the party is present but does not deny the admission of his agent, it is regarded as the admission of the party.

? (d) You can withdraw it if you consider yourself qualified:

? Withdrawal time: the parties withdraw before the end of the court debate:

? The withdrawal is agreed by the other party, or there is sufficient evidence to prove that the act of recognition was made under coercion or gross misunderstanding and is inconsistent with the facts. ?

after effective withdrawal, the burden of proof of the other party cannot be exempted. (Article 8 of the Provisions on Evidence in Civil Proceedings)?

Note that the above restrictions on the withdrawal of admission are stricter than those in the Opinions on Civil Action, and this provision (new law) should be applied. ?

(e) it is also necessary to pay attention to:

? The people's court may order the parties to provide relevant evidence for the fact that there is no dispute between the two parties, but it involves the interests of the state, the social public or the legitimate rights and interests of others; That is, for the fact that. Even if the parties admit themselves, they need to provide evidence to prove it. (Article 13 of the Provisions on Evidence in Civil Proceedings)?

? In litigation, the recognition of the facts of the case involved in the compromise made by the parties for the purpose of reaching a mediation agreement or reconciliation shall not be used as evidence against them in subsequent litigation. ?

B? The claimant shall not be exempted from the burden of proof if the parties have enough evidence to the contrary in the aforementioned items ③, ④, ⑤, ⑤ and ⑦. ?

C? ⑤ and ⑤ are all effective awards. If the award on which this lawsuit is based has not yet taken effect, the lawsuit shall be suspended. (Article 136 of the Civil Procedure Law)?

"Don't confuse"?

the classification of evidence is to classify evidence into different categories according to different standards in evidence theory (academic theory). At present, there are mainly:

(1) proof and disproof-classified according to the relationship between evidence and burden of proof?

(2) direct evidence and indirect evidence-classified according to the relationship between evidence and case facts?

(3) Original evidence and incoming evidence-classified according to the source of evidence?

This is different from the types of evidence. The types of evidence in civil proceedings refer to the seven forms of evidence stipulated in Article 63 of the Civil Procedure Law.

"key laws"?

article 64 the parties have the responsibility to provide evidence of their own claims. ?

the people's court shall investigate and collect evidence that the parties and their agents ad litem cannot collect on their own due to objective reasons, or evidence that the people's court considers necessary for hearing a case. ?

the people's court shall comprehensively and objectively examine and verify the evidence in accordance with legal procedures. ?

Articles 2, 4 ~ 7, 15 ~ 17, 19, 25 ~ 28 of "Relevant Law" and "Provisions on Evidence in Civil Action"; Several Provisions on the Reform of Civil Economic Trial Mode (III). ?

"meaning decomposition"?

1? General distribution principle of burden of proof?

① general principle: the people's court may determine the burden of proof according to the principles of fairness, honesty and credit, and taking into account the parties' ability to provide evidence. This is the general distribution principle of burden of proof. ?

② The applicable situation is: when there is no specific provision in the law and the burden of proof cannot be determined according to this provision and other judicial interpretations. ?

③ Attention must be paid to the power of the people's court to determine the burden of proof. ?

2? Distribution of burden of proof in contract disputes and general distribution principles of burden of proof?

(1) Article 5 of Several Provisions of the People's Court on Evidence in Civil Proceedings clearly stipulates the distribution of burden of proof in contract disputes. Please refer to it. What must be mastered is:?

① in case of any dispute over the performance of the contract, the party who has the obligation to perform shall bear the burden of proof. ?

② in case of any dispute over the right of agency, the party claiming the right of agency shall bear the burden of proof. ?

3? Distribution of burden of proof in infringement and other special circumstances?

This is the absolute focus of the judicial examination, which needs attention. According to the provisions of civil law, civil procedure law and other laws, the burden of proof does not apply to the above-mentioned principle of burden of proof distribution, but has made special provisions. See Articles 4, 6 and 7 of the Provisions on Evidence in Civil Procedure. I won't list them one by one here, but choose the main points to analyze:

(1) By carefully comparing Article 4 of the Provisions on Evidence in Civil Litigation with Article 74 of the Opinions on Civil Litigation, we can find that the Provisions on Evidence in Civil Litigation is more accurate in expressing the distribution of burden of proof in special infringement cases, and it is specific to what matters are allocated with special burden of proof (inverted), so readers can pay attention to the Provisions on Evidence in Civil Litigation without looking at the Opinions on Civil Litigation. But we must pay attention to who (usually the defendant) bears the burden of proof for which fact. ?

(2) We must carefully study Article 4 of the Provisions on Evidence in Civil Proceedings, and I * * * listed eight situations. ?

① Items (2), (3), (4), (5) and (6) are special torts stipulated in the General Principles of Civil Law. However, due to the different principles of imputation of civil liability, it is necessary to distinguish which tort and which fact the defendant bears the burden of proof. ?

items (1), (7) and (8) are not among the special torts stipulated in the general principles of civil law, but they are also special and therefore easy to remember. It is still necessary to pay attention to which fact the defendant bears the burden of proof. ?

③ In the patent infringement litigation, it is only stipulated that the burden of proof in the patent infringement litigation caused by the invention patent of the new product manufacturing method is reversed, that is, the unit or individual that manufactures the same product bears the burden of proof that its product manufacturing method is different from the patented method.

④ in labor dispute cases, if a labor dispute occurs due to the decision of the employer to dismiss, remove the name from the list, dismiss, terminate the labor contract, reduce the labor remuneration, and calculate the working years of the workers, the employer shall bear the burden of proof. ?

4? The court actively investigates the application of collecting evidence?

the parties should provide evidence to prove their claims, but in some cases, the court can also investigate and collect evidence. There are two ways to start the court investigation and collection of evidence: first, the parties apply to the people's court for investigation and collection of evidence according to law; Second, the court took the initiative to investigate and collect evidence ex officio. The application of the two methods is an important test point for the judicial examination. This paper analyzes the application of the court's initiative to investigate and collect evidence ex officio. ?

according to the provisions of the civil procedure law, the people's courts should take the initiative to investigate and collect the evidence that they think is necessary for the trial of a case. The Provisions on Evidence in Civil Litigation clearly stipulates what is "necessary for the trial of a case", that is, the following two situations: (1) involving facts that may harm the interests of the state, the interests of the public or the legitimate rights and interests of others; ?

(2) It involves the addition of parties ex officio, suspension of litigation, termination of litigation, withdrawal and other procedural matters unrelated to substantive disputes.

? It must be noted that the court shall not take the initiative to investigate and collect evidence under any other circumstances except the above two situations. ?

5? The parties concerned apply to the people's court for investigation and collection of evidence?

(1) what is the applicable situation?

① the evidence collected in the application for investigation belongs to the archival materials kept by the relevant state departments and required to be retrieved by the people's court ex officio; ?

② materials involving state secrets, business secrets and personal privacy; ?

③ other materials that the parties and their agents ad litem cannot collect by themselves due to objective reasons. ?

The above situation is the latest provision made in the Provisions on Evidence in Civil Procedure, and anything inconsistent with it should not be applied. For example, if the provisions in Article 73 of the Opinions on Civil Action and Several Provisions on the Reform of Civil Economic Trial Mode are inconsistent with the above new provisions, the new provisions shall apply. Therefore, candidates only need to master the above three situations. ?

(2) What is the application method and time limit?

① both parties and their agents ad litem can apply; ?

② apply to the people's court; ?

③ Not later than seven days before the expiration of the time limit for adducing evidence. ?

④ whether or not to grant permission is decided by the people's court. If the applicant is not satisfied with the decision not to grant permission, he may apply to our court for reconsideration. ?

(3) The application for investigation and collection of evidence does not affect the burden of proof: after investigation by the people's court, evidence cannot be collected, and the party with the burden of proof will still bear the consequences of failure to provide evidence. ?

6? Apply for identification?

(1) Appraisal can be applied by the parties or entrusted by one party to the relevant departments. ?

(2) application period: when a party applies for identification, it shall submit it within the time limit of proof. The following item (5) is met, except that the parties apply for re-appraisal. ?

(3) determination of the appraisal institution and personnel (two ways): after the parties apply for appraisal and get the consent of the people's court, ①