域外取證之拒止及摸索證明

Obtain Evidence Abroad, Blocking Statutes and Fishing Research

本文旨在討論涉外案件審理中之域外取證議題。首先從訴訟制度之差異性，若干國家採取審問型模式，取證僅由法院為之，若干國家採取對審型模式，主要由當事人取證，訴訟制度之差異也導致域外取證制度之差異。由此，再從證據必要性、舉證責任法則準據法說明我國法院准許域外取證之審查基準。進而討論請求書域外取證之程序，包含請求書之形式以及請求應記載之內容，再說明可被容許的域外取證程序及要件為何。最後從討論若干國家經由法院裁定，允許當事人域外取證，有損及他國主權之虞，並有國家採取制定拒止法規抗拒域外取證、以及域外取證之證據為應守秘密資料、證據所在地有禁止提出之法律明文如何影響域外取證等等，在討論請求域外取證屬於摸索證明時，是否應允許等等提出討論，進而反饋討論請求他國域外取證以及我國協助外國取證之要件。

This article is to discuss the issue of obtaining evidence abroad while letting the Taiwan court hear the foreign-related civil cases. First, this article will introduce the difference between procedural systems of different countries. In inquisitional procedural model, the court collects the evidence, and in adversarial system, the party have the right to collect evidence under court’s permit. Due to the difference, the extraterritorial evidence collection system is also different in inquisitional and adversarial procedural model. Because of the difference between litigation system, rules and regulations to obtain evidence abroad is different. In addition, the applicable law and choice-of-law rule of the burden of proof is different. The way to obtain evidence abroad is through international judicial cooperation and the letter of request system. This article focuses on the letter of request system, including the requisite of letter of request, content and the form of the letter of the request. And if Taiwan courts want to require foreign court to collect evidence, Taiwan courts shall examine the requisite whether it shall conform to. At the end, this article will discuss the issue of Blocking Statute and Fishing Research. In some counties, the party could collect evidence abroad according to the court rulings that may undermine the sovereignty of foreign country. Some countries adopted the formulation of refusal laws and regulations which called Blocking Statute to resist this kind of evidence-collection. The Blocking Statute originates from the duty to keep secret of client’s materials or national security. When there is Blocking Statute in that country, could the court allow the party to collect evidence in that country? This article further discusses the issue of Fishing Research and attempts toand resolve the question of obtaining evidence abroad whether through judicial cooperation or not.