| In order to respond to the judicial resource shortage educed by more and more litigations, and to meet the requirement of modern litigations, under the prevailing idea of preventing, avoiding, simplifying and facilitating litigations, and centralizing trial and diversifying mechanisms of settling disputes, most countries in the two legal systems have simultaneously and successively made substantial revisions of their civil procedural laws. Consequently, all these endeavors have strengthened the pre-trial and pre-action procedure of civil proceedings, and the function of proof preserving system and similar ones has been transmuted from purely preserving proof into multifunction, including determination of facts, proof discovery and facilitating settlement of disputes outside the court. Meanwhile, in litigations, preservation of proof has also transformed from a special way by which the litigants passively collect evidences into an effective measure by which the litigants positively collect evidences. Ultimately, the center of civil proceedings has transferred from trial procedures to pre-trial and pre-action ones, from the certification procedures in trial to the pre-trial and pre-action proof collection ones.Compared with other countries, Chinese proof preserving system is single-typed, rigidly-termed and conservatively-functioned, which does not accord with the world current tide, and cannot satisfy the requirement of reforming civil proceedings and intensifying litigants’ burden of proof. Therefore, we should also revise our civil procedural law and extend the function of proof preserving system. On the one hand, we should introduce new types of proof preservation, when litigants have legal interests on determination of state of things, or the opposite litigant assent to, the application for proof preserving by litigants should be allowed, so that they can collect evidences sufficiently before trial. On the other hand, we should recognize the agreement concluded by litigants concerning facts, issues, proof and the whole dispute on the ground of proof preserving, and hence ultimately accomplish the goal of preventing or reducing litigations and settling disputes impartially, quickly and efficiently. Key words: proof preserving, determination of facts, discovery of proof, settle disputes other than litigation |
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