Resolution to Conflict of Competency of Evidence: The Analysis Based on Legal Culture and Litigant system/RÉSOLUTION DES CONFLITS DE COMPÉTENCE DE LA PREUVE: L'ANALYSE FONDÉE SUR LA CULTURE JURIDIQUE ET LE SYSTÈME JUSTICIABLE

By Yin, Weimin | Canadian Social Science, April 3, 2011 | Go to article overview

Resolution to Conflict of Competency of Evidence: The Analysis Based on Legal Culture and Litigant system/RÉSOLUTION DES CONFLITS DE COMPÉTENCE DE LA PREUVE: L'ANALYSE FONDÉE SUR LA CULTURE JURIDIQUE ET LE SYSTÈME JUSTICIABLE


Yin, Weimin, Canadian Social Science


Abstract:

Competency of evidence is a qualification for evidence materials to be used as evidence in the procedure. Due to different legal culture, litigant mode and litigant system, there are differences concerning competency of evidence between continental genealogy of law and Anglo-American genealogy of law, which block the globalization of competency of evidence. So, the solution to conflict of competency of evidence depends on the conflict rule, the making of conflict rule should consider fully the purpose which the court desired in one case, the role of competency of evidence rule in the procedure and principle of conflict law.

Key words: Competency of Evidence; Legal Culture; Litigant Mode; Litigant System; Conflict Rule

Resume: La compétence de la preuve est une qualification des matériels de preuves pouvant être utilisés comme preuve dans la procédure. Selon de différentes cultures juridiques, de différents modes et systèmes justiciables, il existe des différences concernant la compétence de la preuve entre la généalogie du droit continental et la généalogie du droit anglo-américaine, qui bloquent la mondialisation de la compétence de la preuve. La solution de conflit de compétence de la preuve repose donc sur la règle de conflit. La prise de règle de conflit devrait prendre en considération de manière approfondie l'objetif du tribunal dans un cas, le rôle de la règle de compétence de la preuve dans la procédure et le principe du droit des conflits.

Mots clés: Compétence de la preuve; Culture juridique; Mode justiciable; Système justiciable; Règle de conflit

In international civil litigation cases, due to different rules of competency of evidence in different countries, there will be conflicts that one piece of evidence material accepted in one country has no identical competency in another, which is especially reflected between continental genealogy of law and Anglo-American genealogy of law. Therefore, studying the conflict caused by competency of evidence and exploring the reasons are of great help to conflict resolution and thereby to obtain the goal of appropriately trying a case.

1. PRECONDITIONS OF RESOLUTION TO CONFLICT OF COMPETENCY OF EVIDENCE

Different national laws have different provisions for the ranges of evidence ability. Therefore, to resolve these conflicts, we should first make clear the range of the evidence ability. Evidence ability is the qualifications for the evidence materials to become usable in the lawsuit. Whether the term is Qualification of Evidence or Evidence Qualifications, it is in fact a standard under which the evidence materials can be used as the basis for proof. In Anglo-American genealogy of law, the evidence ability is usually termed as admissibility, meaning that "be allowed to be qualified as proofs which can be used in hearings, trials and other procedures." It is reflected through a series of evidence rules. Evidence ability is under many circumstances showing the limitation on the evidence itself, but sometimes it also reflects the limitation on people's abilities, such as the limitation on the qualification of the witnesses and the protection of the privilege of them. These rules are not admissible rules in continental genealogy of law and Anglo-American genealogy of law, but they have certain excluding effects on the usage and admission of the evidence, and that's why they have been included in the range of evidence ability in this paper.

Competence of evidence, in broad sense, refers to a qualification for evidence materials to be used as evidence in asserting the fact of a case. It focuses on two aspects: whether the evidence is proposed in a legal way; whether the method of proposing evidence is legal. Therefore, the method of proposing evidence, in other words, the form of evidence regulated by law is essential in defining competence of evidence. In fact, the competence of evidence equals the acceptability of evidence. …

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Resolution to Conflict of Competency of Evidence: The Analysis Based on Legal Culture and Litigant system/RÉSOLUTION DES CONFLITS DE COMPÉTENCE DE LA PREUVE: L'ANALYSE FONDÉE SUR LA CULTURE JURIDIQUE ET LE SYSTÈME JUSTICIABLE
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