How to collect evidence in civil and commercial litigatio

Introduction: in court, litigation activities actually operate around the evidence. When a lawyer begins to prepare a case, the first task is to prepare evidence. The preparation of evidence is a systematic project, which generally includes the stages of evidence collection, inspection and screening, solidification and preservation, organization and arrangement, etc. This paper will discuss how to carry out evidence collection based on the experience of lawyers in civil and commercial dispute resolution cases.

1. The importance of evidence collection to civil and commercial litigation
The theoretical basis of China’s civil procedure legal system is the “theory of legal facts”, which advocates replacing “objective facts” with “legal facts”. That is, what happened objectively needs to be proved by relevant evidence. The facts that can be proved by evidence are legal facts.
The judge is not a witness of the dispute case, and can only restore facts according to the evidential materials provided by the parties. A judge’s judgment should be “based on facts”, which is essentially “based on evidence”. Evidential materials have become the basis for finding out the truth of the case, an important means to determine the facts of the case, and directly affect the judgment of the case. Therefore, we need to collect and apply evidence in strict accordance with legal requirements and evidence rules.

2. Ways of evidence collection
Evidence is so important that it is difficult to do anything without evidence. As an agent, lawyers can carry out the transfer and collection of evidence from the following ways:

2.1 Investigate and collect evidence from the parties
The parties are always the first-hand source of evidence. Since the lawyer contacts a case, he will obtain all kinds of evidence around the case from the parties. At the same time, the lawyer needs to have independent judgment ability. He should analyze the facts stated by the parties and distinguish the authenticity of the facts in combination with the evidence. If the parties’ statements are incomplete or concealed, they shall be informed of the litigation risks they will face in time.
2.2 Investigate and obtain evidence from public channels or relevant units and departments
In China, the authority of civil and commercial dispute resolution lawyers to obtain evidence is very limited. The way for lawyers to investigate and obtain evidence is often through public information or by providing applications to relevant departments. Now is an era of information explosion. Every bit of the behavior of the parties may leave traces in the public information. Through the systematic retrieval of public information, it can often provide strong support for cases.

2.3 Witness statements obtained from the search for witnesses
In the past, when witnesses appeared in court to testify, they may prepare a “witness statement” in advance and explain the facts according to the book. The witness statement should be a continuous statement, rather than a formalistic statement; the witness statement should be based on the facts of his experience, rather than through speculation, inference or critical language. At this time, in order to achieve the best testimony effect, it is particularly important to do a good job in the guidance of the witness before appearing in court, so that the witness can have a correct attitude Treat the contents of testimony in a legal manner.

2.4 Apply to the court for investigation and collection of evidence
Judicial interpretation of China’s Civil Procedure Law Article 94 stipulates that it is possible to apply to the people’s court for retrieval only if the parties and their agents ad litem are unable to collect the evidence by themselves for objective reasons. In fact, if the parties apply to the court for investigation and evidence collection only on the ground that they are unable to investigate and collect the evidence by themselves for objective reasons, the court does not necessarily support the application for evidence collection. The reason is that there is still a substantive examination If the conditions need to be met, that is, the evidence applied for investigation and collection by the parties is not related to the facts to be proved, is meaningless to prove the facts to be proved, or is not necessary for investigation and collection, the people’s court shall not allow it.
Therefore, when applying to the people’s court for investigation and evidence collection, the parties should pay attention to explaining to the court that the evidence applied for retrieval has a significant impact on the identification of the main facts of the case, and the parties really can’t obtain it by themselves.

2.5 Go to the scene
Most of the time, lawyers are immersed in the written materials to understand and study the case, and it is of great significance for lawyers to visit and check the scene in person. The experience of personal perception can help us understand the truth of the case, help carry out the case investigation, help find breakthrough points and help find details that cannot be reflected in the written materials.

3. Contents of evidence collection
In civil and commercial dispute litigation, lawyers should objectively, comprehensively, deeply and carefully collect evidence around the dispute facts, so that the collected evidence can fully reflect the dispute, so as to prove their claims. According to the author’s experience, they can sort out and collect from the following aspects:

3.1 When legal relationship is formed, attention should be paid to collecting the identity data of the other party’s subject, such as the business license of the enterprise, personal ID card, etc. if the parties are more standardized and cautious in handling things at ordinary times, and they should consciously communicate or change important things in written form, a lot of evidence has been collected naturally, and there is no need to wait until a dispute occurs to look for and deal with it Collect.
3.2 After the formation of the legal relationship, attention should be paid to collecting evidence materials reflecting the formation and development of the legal relationship between both parties, such as contracts, financial vouchers, correspondence documents, relevant documents sent and signed, etc. both parties are willing to actively communicate and form written documents from the time of the formation of the legal relationship to the time of the emergence of the dispute. At this time, it is easier to collect evidence consciously.

3.3 After a legal dispute arises, when there is a dispute between the two parties, try not to immediately close the communication channels with the other party and completely form an antagonistic relationship with the other party. On the contrary, when the dispute is resolved through negotiation without results, the communication channels shall continue to be retained and targeted supplementary evidence materials reflecting the facts of breach of contract or damage shall be collected.

4 Experience and skills in collecting evidence
In practice, sometimes the existing evidence is not enough to prove the claims of the parties. In order to more completely prove the facts to be proved, we need to consider whether there is room for further access and collection of evidence, and how to access and collect evidence targeted to build a complete evidence chain. We believe that the following rules of thumb can be followed for collection: