Litigation In Mainland China Under New Evidence Rules: Your 50 Questions.

 

4 May 2020

 

 

Introduction
 

The Supreme Court of People’s Republic of China (SPC) formally promulgated the amended version of Several Provisions of the SPC on Evidence for Civil Litigation (New Evidence Rules) on 25 December 2019, which comes into effect today, 1 May 2020. The New Evidence Rules together with Chapter VI of the Civil Procedure Law of the People’s Republic of China (amended in 2017) (CPL) and Chapter IV of the Interpretations of the SPC on Application of the CPL (issued in 2015) (2015 Judicial Interpretation) have now covered most evidential rules which constitute a major part of litigation practice.

 

The New Evidence Rules with 100 articles maintain the structure of the old Evidence Rules covering six aspects including “parties’ statements”, “court’s investigation, collection and preservation of evidence”, “time limit for producing evidence and evidence exchange”, “examination and cross-examination”, “evidence verification” and “miscellaneous”. However, the New Evidence Rules also reflects the development of litigation practice in past years and addresses the resolution of disputes arising out of the use of modern technology.

 

There are many highlights in the New Evidence Rules. To provide readers with some guidance from a practitioner’s perspective, we have prepared 50 questions which are divided into five sections: overall picture, routes for evidence production, witness testimony, judicial expert opinion and electronic evidence and others.

 

Over the course of the next few weeks, we will be publishing a series of blog posts targeting one section at a time.  This blog post focuses on the first section, i.e., the overall picture.

Section I Overall Picture

 

1. What forms of evidence would a Chinese court accept?

2. Are there any formality requirements for evidence produced outside Mainland China?

3. What are the routes available for me to produce evidence?

4. How is the burden of proof allocated between parties?

5. What standards am I to satisfy when bearing the burden of proof?

6. Are there any facts that I am relieved of proving?

7. When shall I submit evidence to court?

8. When will parties present evidence and determine its admissibility before court?

9. What is the process of assessing evidence?

10. How does a Chinese court give weight to each evidence?

 

1. What forms of evidence would a Chinese court accept?

 

The CPL sets out eight types of evidence, namely parties’ statements, documentary evidence, physical evidence, audio-visual materials, electronic data/evidence, witness testimony, judicial expert opinion and inspection record.

 

2. Are there any formality requirements for evidence produced outside Mainland China?

 

The New Evidence Rules have relaxed formality requirements that were mandatory in the past. For evidence produced abroad, if it is documentary evidence by officials or authorities, such evidence shall be notarised by a local notary public or shall comply with the certification requirements in bilateral treaties if applicable. However, if it is evidence related to identity, such evidence shall be notarised by a local notary public and legalised by the Chinese embassy in that country, or shall comply with the certification requirements in bilateral treaties if applicable. If it is evidence to prove contractual relationship or other facts between parties, there are no longer strict formality requirements and the veracity of such evidence could be examined the same way as evidence produced within mainland China through examination and cross-examination.

 

The position on formality requirements for evidence produced in Hong Kong, Macau and Taiwan remains the same whereby such evidence is to be attested before an attestation officer (Hong Kong and Macau) or notarised before a local notary public (Taiwan).

 

3. What are the routes available for me to produce evidence?

 

In general, a party may collect and produce evidence on its own. The court may provide support upon application on certain conditions, which include ordering the other party to disclose evidence under that party’s control; exercising its power to investigate and collect evidence, or ordering for evidence preservation. Moreover, the court may also investigate and collect evidence ex officio in prescribed circumstances.

 

4. How is the burden of proof allocated between parties?

 

A party shall submit evidence to prove facts that it relies on to establish claims and rebuts the counterparty’s counterclaims or defence. By default, a party who contends the existence of a legal relationship shall have the onus to prove. If the other party contends any variation, termination or hinderance, it shall prove basic facts of that contention. However, some special laws may reverse the default allocation of burden of proof. For example, in a tortious case for environmental pollution, the polluter shall assume the burden to prove that it should not be liable for the victim’s damages, its liability could be mitigated, or there is no causal link between its conduct and the victim’s damages.

 

The New Evidence Rules deleted the old rules about granting a court with the power to allocate the burden of proof between parties based on principles of fairness and good faith in consideration of parties’ capability to produce evidence. This provides certainty in the allocation of burden of proof.

 

5. What standards am I to satisfy when bearing the burden of proof?

 

The general rule is that the party bearing the burden of proof has to prove the existence of facts on a balance of probabilities (more likely than not). The New Evidence Rules added new rules to enhance and lower this general standard in exceptional scenarios. For facts regarding fraud, coercion and malicious collusion or oral wills and gifts, the party has to prove beyond a reasonable doubt that such facts exist. For facts supporting procedural applications like preservations (interim measures) and recusal, the court may deem such facts exist if the party proves them as more probable than not.

 

6. Are there any facts that I am relieved of proving?

 

Natural or universal rules stand without proof.

 

Parties do not need to prove facts that are widely known to all, induced by law, induced by a known fact based on daily-life experience and ascertained in a binding arbitral award, unless sufficiently rebutted by evidence to the contrary. Further, parties are relieved from proving basic facts ascertained in a binding court judgment and notarised by a notary public, unless the same has been sufficiently overturned by contrary evidence. It is interesting to note that the old rules give facts ascertained in a binding arbitral award the same probative value as ascertained in a binding judgment yet the New Evidence Rules lowers the value of facts ascertained in a binding arbitral award.

 

7. When shall I submit evidence to court?

 

The claimant and the defendant shall submit evidential materials to meet the necessary conditions for filing either a claim or counterclaim. At the pre-hearing stage, the court may set a time period for producing evidence, which shall not be less than 15 days for the first instance and 10 days for the second instance. Alternatively, the parties themselves may agree on a time period to produce evidence which may be subject to the court’s approval. Parties are allowed to apply for a time extension for evidence production if there exists objective obstacle. However, whether to grant such extension is at the court’s discretion. The court may also give further time to submit rebuttal evidence if it deems necessary.

 

Note if a party submits evidence beyond the time limit, the court may require that party to provide reasons for the delay. If that party fails to do so or the court considers those reasons unjustified, the court may refuse to accept evidence, or accept evidence but reprimand that party or impose fines on that party or both.

 

8. When will parties present evidence and determine its admissibility before court?

 

Normally, the court may convene a pre-hearing meeting called “evidence exchange meeting” for parties to present evidence and submit examination opinion on the veracity, legality and relevance of evidence. For complicated cases with significant amounts of evidence, there may be two or three “evidence exchange meetings” before the hearing. By contrast, for straightforward cases with limited evidence, parties may test the admissibility of that evidence directly during the hearing.

 

9. What is the process of assessing evidence?

 

The typical process would be for one party, usually the claimant, to present its evidence and test the veracity, legality and relevance of the evidence of the opposing party. If there was evidence investigated and collected by the court, the assessment of such evidence would follow after the completion of the same for the parties’ evidence. The court may first need to explain the process of investigation and collection and status of these evidence to parties.

 

10. How does a Chinese court give weight to each evidence?

 

The court assesses all the evidence and the evidential chain comprehensively, and examines the relevance of each piece of evidence. As for each individual piece of evidence, the court considers various factors in giving evidential weight like veracity, relevance, source, form and whether there exists any conflicting interest between the evidential holder or provider or witness and any of the parties involved.

 

Stay tuned for next week’s blog post which will focus on the second section, the routes for evidence production.

 

 

For further information, please contact:

 

Helen Tang, Partner, Herbert Smith Freehills

helen.tang@hsf.com