To participate in China’s judicial proceedings, it is important to understand the time limit system for presenting evidence. The time limit for presenting evidence is generally designated by the court and may be changed under some circumstances. Although the evidence is still very much likely to be admitted by the court even if its presentation is delayed and may incur court punishment, the parties should try the best to present evidence on time. Also, surprise evidence is not rare in China’s court proceedings, and the parties often need their attorneys’ help to deal with it.
I. What is the time limit for presenting evidence
As the name suggests, the time limit for presenting evidence is the time limit for the parties to present evidence to the court. In addition, the applications to the court for evidence investigation and collection, evidence preservation, authentication and the like also need to be put forward before the expiration of the time limit for presenting evidence.
II. How to determine the time limit for presenting evidence
The time limit for presenting evidence is generally designated by the court, or sometimes agreed upon by the parties. However, in practice, it is designated by the court in most cases, and the latter situation is very rare.
The time limit for presenting evidence designated by the court commences from the expiration of the defense period, and shall meet the following requirements:
(1) No less than 15 days in the first-instance trial in which the ordinary procedure is applied.
(2) No more than 15 days in the first-instance trial in which the summary procedure is applied.
(3) No less than 10 days in the second-instance trial in which the parties present new evidence.
The time limit for presenting evidence is not unchangeable. If the parties have justified reasons, they may apply to the court for an extension of time before the period expires. After the expiration of the time limit for presenting evidence, if one party needs to present rebuttal evidence against the other party, or needs to supplement/correct the source/form of their own evidence, it can also apply to the court to re-determine the time limit for presenting evidence.
In practice, some judges will not define the time limit for presenting evidence before the trial, but will, during the trial, determine a certain number of days after the trial as the time limit for presenting evidence.
III. Legal consequences of late evidence presentation
Before the revision of the Civil Procedure Law (CPL) in 2012, Chinese courts had strict requirements on the time limit for presenting evidence and would not accept late evidence presentation in principle. The revised CPL has relaxed the requirement on such limit. If the parties present evidence late, according to the merits of cases and the parties’ subjective fault, the court may choose to not to admit the late presented evidence, or to admit the evidence after admonishing and imposing fines [less than CNY 100,000 (about USD 14,278) for natural persons; CNY 50,000 (about USD 7,139) - CNY 1,000,000 (about USD 142,783) for organizations] on the parties.
Viewed from the judicial practice, China’s judicial system attaches great importance to fact-finding. As long as the late presented evidence contributes to the fact-finding, such evidence will generally be admitted. Nevertheless, we would still advise our clients to present evidence as scheduled to avoid the above adverse consequences.
IV. How to deal with surprise evidence
Because some judges do not strictly define the time limit for presenting evidence, some parties may try to use the strategy of a surprise attack, that is, to present evidence without prior disclosure during the court trial. Even if the judge designates the time limit for presenting evidence as before the court session, due to the lack of severe consequences of late presentation, some parties may still choose to use surprise evidence. Under such circumstances, it is often difficult for the opposing party to give effective examination opinions to challenge the evidence on the spot, while it may leave a negative impression on the judge if the party concerned completely refuses to do so.
In the face of surprise evidence, we’d give the following advice:
1. For general evidence, the parties may conduct a preliminary examination on the spot and make it clear to the judge that they reserve the right to supplement and modify the examination opinions in the future. If the party finds significant defects of the other party’s evidence on the spot, it shall point them out immediately to win the favor of the judge to the greatest extent.
2. For critical or complex evidence, we advise our clients not to conduct an examination on the spot, but to apply to the court for extra time for evidence examination. According to our experience, the first-time examination opinions would have a great influence on judges. A reckless examination would probably lead to the judge’s negative impression on us, which is difficult to be reversed even if formal opinions are submitted later.
3. In addition, according to Chinese laws, if one party fails to raise an objection to the other party’s late evidence presentation, such late evidence presentation will not be deemed as late. Therefore, the parties may raise objections to the surprise evidence and request the judge to consider admonition and fine to the other party.
It should be noted that we do not recommend our clients to present surprise evidence without careful consideration. Not only is it not conducive to the judge’s in-depth understanding of our evidence before the trial, but also will it cause an additional burden for the judge to preside over the trial, and even cause the judge’s antipathy. It will not be worth the candle to intentionally use the surprise evidence but to have the consequence of non-admission, or even admonishment and fine by the judge. Therefore, it is necessary for the parties to provide reasonable explanations and apologies to the judges in the case of late evidence presentation either due to obtaining the evidence late or intentionally making an evidence surprise attack at some times.
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