Litigation In Mainland China Under New Evidence Rules: Your 50 Questions – Part 2.

11 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 came into effect on 1 May 2020.

 

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. Section one was published on 1 May and can be found here. This blog post focuses on the second section, i.e., routes for evidence production.

 

Section 2: Routes for Evidence Production

 

11. Can I apply for the court to investigate and collect evidence for me?

12. Can the court investigate and collect evidence ex officio?

13. What are the procedures for the court to investigate and collect evidence?

14. Can I request my counterparty or a third party to disclose evidence under his/her control?

15. What are the conditions to apply for an Order for Disclosure?

16. What are the legal consequences if my counterparty refuses to obey an Order for Disclosure?

17. Can I apply for evidence preservation to court?

18. What are the requirements for application for evidence preservation?

19. What measures may the court take to preserve evidence?

20. What are the legal consequences if I make a wrongful application for evidence preservation?

 

11. Can I apply for the court to investigate and collect evidence for me?

 

Yes, if in circumstances where the parties and their attorneys are unable to produce evidence for objective reasons. These include circumstances where (i) the evidence is kept by relevant State authorities, and the parties and their attorneys have no right to inspect or have access to it; (ii) the evidence involves State secrets, business secrets or personal privacy; or (iii) any other evidence for which the parties and their attorneys could not produce for objective reasons.

 

Note that such an application shall be filed during the litigation proceeding and not prior to commencement of litigation.

 

12. Can the court investigate and collect evidence ex officio?

 

If the court deems it necessary, the court may investigate and collect evidence ex officio. However, the court’s discretionary power is limited to prescribed circumstances, which include where (i) the evidence may harm State interests and/or public interest; (ii) evidence relating to identity relationship; (iii) evidence in disputes involving environmental pollution, infringement on vast consumers’ rights and damage to ecological environment and resource protection; (iv) there is a possibility that the parties maliciously conspire to harm the legitimate interests of others; or (v) evidence related to procedural matters like the joining of a third party, suspension, termination or abstention.

 

13. What are the procedures for the court to investigate and collect evidence?

 

The court may direct at least two staff members (judge or court clerk) to jointly carry out the investigation and collection. The court shall make an investigation record detailing (i) the sources of the evidence collected, (ii) the process of investigation, and (iii) the investigators involved. The person and/or entity under investigation and the recorder shall then sign on the investigation record.

 

In respect of investigating and collecting evidence for conducting judicial appraisal, the New Evidence Rules specifically requires the court to further comply with technical requirements to ensure that the evidence would not be contaminated.

 

14. Can I request my counterparty or a third party to disclose evidence under his/her control?

 

Yes. The regime of Order for Disclosing Evidence under Control of Counter Party (Order for Disclosure) is for the first time detailed with operational rules in the New Evidence Rules.

 

Though the Order for Disclosure is established for documentary evidence, it is worthy to note that Article 99 of the New Evidence Rules provides that these shall also apply to audio-visual materials and electronic data.

 

However, the Order for Disclosure only applies to parties in the proceeding and not any third party. That is because the New Evidence Rules are subject to and may be limited by the provisions in the CPL.

 

15. What are the conditions to apply for an Order for Disclosure?

 

The applicant shall describe the name or contents of evidence, elaborate the importance of the facts to be proved, the basis of its belief of the Counter Party’s direct or indirect control and also reasons for requiring the disclosure of such evidence. The applicant shall submit a written application before the expiry of the time limit for evidence production as set by the court.

 

Note that the scope of evidence which an evidence controller shall disclose is limited. Such evidence includes (i) evidence which has been cited by the evidence controller; (ii) evidence prepared for the interests of the other party (applicant); (iii) evidence to which the other party (applicant) has a legal right to obtain; (iv) account books and original vouchers for book-keeping; or (v) other circumstances where the court finds such evidence shall be disclosed.

 

It is particularly noted that for evidence within the prescribed scope above which involve State secrets, commercial secrets, personal privacy of parties, or under circumstances where the law stipulates, the evidence controller may also be required to disclose the same but admissibility test shall not be conducted openly.

 

16. What are the legal consequences if my counterparty refuses to obey an Order for Disclosure?

 

If the evidence controller refuses to disclose evidence as ordered without justified reasons, the court may deem the fact to be proved as true. If the evidence controller for the purpose of obstructing the applicant from using or relying on evidence, destroys that evidence or causes that evidence to become unusable, the court may penalise the evidence controller with either a fine or detention or both, and most importantly the court may deem the fact to be proved as true. This is to deal with the difficulty in practice where a party would rather be penalised than give out key evidence.

 

17. Can I apply for evidence preservation to court?

 

Yes. There are two different types of evidence preservation at law – evidence preservation by court and by a notary public. A notary public’s function is to witness the process of a party’s own attempt to collect or preserve evidence to increase the credibility of the evidence collected. A court may preserve evidence which is in the possession of the applicant’s counterparty or third parties.

 

18. What are the requirements for application for evidence preservation?

 

The applicant may apply for evidence preservation prior to the commencement of litigation or during litigation. The CPL provides grounds for such application where evidence may be destroyed or become difficult to obtain. For evidence preservation at the pre-action stage, urgency should be further proved.

 

Do note that during litigation the party shall file the application before the expiry of the time limit for evidence production. The court may request for security from the applicant should preservation cause any loss to the evidence holder.

 

19. What measures may the court take to preserve evidence?

 

The court is authorised to preserve evidence through a range of measures. It can seal, seize, photograph, audio or video record, photocopy or inspect the object, or take witness statements, per the application and other specific circumstances as may be considered as necessary by the court. If there are several measures which could fulfil the purpose of evidence preservation, the court shall select a measure which has the least impact on the interests of the evidence holder.

 

20. What are the legal consequences if I make a wrongful application for evidence preservation?

 

The New Evidence Rules added a new Article 28 to clarify its position on compensation for wrongful preservation. If an applicant is deliberately or grossly negligent in making the application for which the evidence holder suffers property damage, the applicant shall compensate the evidence holder.

 

Stay tuned for next week’s blog post which will focus on the third section, witness testimony.

 

 

For further information, please contact:

 

Helen Tang, Partner, Herbert Smith Freehills

helen.tang@hsf.com