A Study on Spoliation of Evidence in Civil Procedure Law

• Main Authors: Tien-ching Pan, 潘天慶
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2006
• Online Access: http://ndltd.ncl.edu.tw/handle/69898874231886970323

碩士 === 東吳大學 === 法律學系 === 95 === The Taiwan Code of Civil Procedure was amended in 2000 to revise and augment Article 282-1, which officially provide: “Where a party intentionally destroys or hides a piece of evidence, or makes it difficult to use, for the purpose of obstructing the use of such evidence by the opposing party, the court may, in its discretion, take as the truth the opposing party’s allegation with regard to such evidence or the disputed fact to be proved by such evidence. In the case provided in the preceding paragraph, the parties shall be accorded an opportunity to present their arguments.” The spoliation of evidence has become a general principle and it should be considered as making progress. Nevertheless, many theoretical and practical problems has come up at the same time. Instead of the application of the spoliation of evidence, the most important dispute exist in the problem of the violation of obligation to give assistance. The obligation to give assistance, which decides if and how the party which does not bear the burden of proof help the opposing party to claim facts and to supply evidences, is a problem between two parties. It has fully influence to Civil Procedure and, it is also the most important aspect when we discuss the spoliation of evidence. In the aspect of the conditions of the spoliation of evidence, in order to implement the purpose of legislation, an unpremeditated spoliation of evidence should be included in Article 282-1 through explanation. If the party who bears the burden of proof destroys or hide the evidence, the court should sentence in accordance with evidence instead of applying Article 282-1. The party who claims that the opposing party destroys or hide the evidence needs to prove that the evidence was owned by the opposing party. The unclear of fact must be caused of the spoliation of evidence so that Article 282-1 could be applied. In the aspect of the result of the spoliation of evidence, the court should combine the fact of spoliation with the manifest of other evidence to presume the truth. According to Article 277, the court may also take the switch of the burden of proof as the result of the spoliation of evidence or simply mitigate the burden of proof. In relation between the spoliation of evidence and the perpetuation of evidence, the request of perpetuating evidence is not an essential condition of the spoliation of evidence. In relation between the spoliation of evidence and the production of documentary evidence(Article 345), Article 345 should be gave priority. In the end, in actions seeking the disavowal of, or the acknowledgement of the legitimacy of a child, or for the nullification of, or the revocation of an acknowledgement, or for a declaratory judgment confirming the natural father of a child born after the mother’s remarriage, it regularly focus on the consanguinity of two parties. Since our court could not force two parties to proceed the appraisal of consanguinity, the apply for Article 282-1 has been considered. In order to protect the right of self-determined health and the right of privacy, the court should first proceed other evidences. Only when the proceedings of other evidences show that the claim of a party is near to truth the court could declare the request of appraisal of consanguinity judicially. The disobeying of the declaration results in the apply for Article 282-1.