In December 2019, the Supreme People’s Court (SPC) promulgated the revised Civil Evidence Rules (《最高人民法院关于民事诉讼证据的若干规定》, hereinafter “the Rules”), which covers most rules of evidence in China’s civil procedure.
After the first version of the Rules being formulated in 2001, China’s Civil Procedure Law (CPL) has been amended three times, and many evidence-related problems keep popping out in civil litigation. Therefore, the SPC revised and promulgated the Rules in 2019.
There are 100 articles in the Rules, only 11 articles of which are from the 2001 version, while the other 89 articles are revised or newly added provisions. Thus, it can be seen that substantial changes have been made to the Rules.
The Rules can be divided into six parts, namely: the burden of proof, the investigation, collection and preservation of evidence, the time limit of evidence presentation and evidence discovery, the examination of evidence, the determination of evidence, and supplementary provisions. According to Judge Jiang Bixin (江必新), the vice president of the SPC, the first five parts reflect the “dynamic process” of evidence from the beginning to the end of civil litigation.
1. The burden of proof
A. Basic principle
In civil litigation, if a party claims a fact in his own favor, he should present evidence to prove it. This is the most basic principle of civil evidence rules in China, that is, “the burden of proof lies with the party asserting a proposition.” But on this basis, there are some exceptions.
The fact that the party claims against himself constitutes a self-admission, and the other party need not to present evidence to prove such fact. (Article 3)
C. Self-evident facts
The parties need not bear the burden of proof for such specific facts as: (1) the facts proved by effective arbitral awards, court judgments, and notarized documents; (2) the natural laws and the well-known facts; (3) the facts that can be deduced from the law or life experience. (Article 3)
D. Extraterritorial evidence
The parties usually do not need to notarize and certify the extraterritorial evidence when they submit it to the court.
However, if the extraterritorial evidence is documentary evidence, it must be notarized by the public notary office of the country where the evidence is produced; if the extraterritorial evidence relates to personal identity, it must be notarized by the public notary office of the country where the evidence is produced and certified by the Chinese embassy or consulate in that country. (Article 10)
E. Electronic data
Electronic data may be used as evidence, but the party concerned shall provide the original copy. The copy made by the producer of electronic data that is consistent with the original, or the printout directly derived from the electronic data, or other output media that can be displayed and identified shall be regarded as the original electronic data. (Article 15)
2. Investigation, collection and preservation of evidence
A. Request for court investigation
The parties and their agents may apply to the court for investigation and collection of evidence. (Article 20)
B. Judicial expertise
The parties may, on their own initiative, apply to the court to appoint an expert witness to issue expert opinions. (Article 31)
If the court considers that the facts to be proved need to be proved by expert opinions during the case trial, it shall inform the parties to decide whether to apply for judicial expertise within a specified period of time. (Article 30)
C. Order for presenting documentary evidence
The party concerned may request the court to order the other party to present documentary evidence. (Article 45)
The court may decide whether to require the other party to present documentary evidence according to the role of the documentary evidence in the case. (Article 46)
If the other party denies its control of the documentary evidence, then the court should determine the authenticity such claim according to the laws, the customs and the facts of the case. (Article 45)
If the party controlling the documentary evidence refuses to present the documentary evidence without justifiable reasons, the court may determine that the documentary evidence claimed by the other party truly exists. (Article 48)
3. Time limit of evidence presentation and evidence discovery
A. Time limit of evidence presentation
The time limit of evidence presentation may be negotiated by the parties and approved by the court.
The court may also specify the time limit of evidence presentation, among which, the time limit of evidence presentation in the ordinary procedure of first instance shall not be less than 15 days, that of summary procedure shall not exceed 15 days, that of small-claims cases shall not exceed 7 days; that of second instance shall not be less than 10 days. (Article 51)
B. Evidence discovery
The court can organize the parties to make evidence discovery before the court, and further determine the main disputed issues between the two parties. (Articles 56, 57)
4. Examination of evidence
A. Presentation of the original
When examining documentary evidence, physical evidence or audio-visual materials, the party concerned shall produce the original thereof. (Article 61)
B. Statement of the parties
The parties shall make a true and complete statement of the facts of the case. The parties shall sign an affidavit and read out the content thereof before making the statement. If the parties intentionally make a false statement and obstruct the case trial, the court shall punish them. (Articles 63, 65)
C. Testimony of witness
The witness shall testify in court, unless otherwise agreed by both parties. The witness shall sign an affidavit and read out the content thereof in court before testifying. (Articles 68, 71)
If a witness intentionally makes a false statement, a participant in the proceedings or any other person obstructs the witness from testifying, or the party concerned retaliates against the witness after testifying, the court shall punish the relevant person. (Article 78)
5. Determination of evidence
A. The judge’s determination duty
The judge should determine the evidence comprehensively and objectively, independently evaluate the evidence’s probative force, as well as disclose the reasons and results of the judgment. (Article 85)
B. Determination of a single piece of evidence
The judge can determine a single piece of evidence from the following aspects:
a. Whether the evidence is the original and whether the copy is consistent with the original;
b. Whether the evidence is relevant to the facts of the case;
c. Whether the form and source of evidence conform to the law;
d. Whether the content of the evidence is authentic;
e. Whether the witness or the person providing evidence has a stake in the party concerned.
C. Solitary evidence (Uncorroborated evidence)
The judge cannot take the following solitary evidence as the basis of fact-finding:
a. The statement of the parties;
b. The testimony made by a person without or with limited capacity for civil conduct that is not commensurate with their age, intelligence, or mental health;
c. The testimony made by a witness who has a stake in the party concerned or his agent;
d. Audio-visual materials and electronic data with doubts;
e. Copies and reproductions that cannot be checked with the original.
Contributors: Guodong Du 杜国栋