In China, can a witness be spared appearing in court? Does cross-examination exist in Chinese courts? Here's what we need to know about witnesses and witness testimony in China's civil litigation.
The witness testimony is one of the eight types of evidence stipulated by China’s Civil Procedure Law (CPL). In addition to the CPL, relevant judicial interpretations also provide for the witness testimony from various aspects. It is worth noting that, the role played by the witness testimony in China’s civil litigation is relatively limited for various reasons, and the documentary evidence is still the most important source of evidence.
I. Who can be a witness
Anyone who knows the circumstances of the case and is able to express his/her thought correctly can be a witness. Even minors and mentally ill persons can testify on issues appropriate to their age and mental status. In practice, the closer the relationship between the witness and the party applying for his/her appearance is, the weaker is the probative force of his/her testimony.
It should be noted that in some countries, the definition of a witness is very broad, and whoever (including the parties concerned) can provide information related to the case can serve as a witness. In China, however, only those other than the parties concerned can be called witnesses. As for the statement of the parties, including the statement of the expert assistant engaged by them, it is another type of evidence stipulated by the CPL. Generally speaking, the statement made by the parties against themselves constitute a self-admission, which has strong probative force; while the statement favoring themselves have very weak probative force.
In addition, although the expert (see our previous post, for discussion on the authentication and expert opinions) is not a witness under Chinese law (the expert opinion is another type of evidence different from the witness testimony), the provisions on examining the witness are applicable to the expert as well.
II. How to apply for a witness to testify in court
The party concerned shall submit to the court an application for the witness to testify in court before the expiration of the time limit for presenting evidence. The application form shall contain the name, occupation, residence, and contact information of the witness, a summary of the testimony, the relevance between the testimony and the facts to be proved, and the necessity of the witness to testify in court. In addition, in cases that might harm national interests and social/public interests, even if the parties do not apply for the witness to testify in court, the court should also summon the relevant witnesses ex officio.
III. Can a witness be spared appearing in court
A witness shall testify in court. Only when the witness suffers from health problems, traffic inconvenience, natural disasters or has other justified reasons, can he/she apply to the court for non-appearance. If the court approves the witness’ non-appearance in court, the witness can testify by submitting written testimony, audio, and video materials, or by video conference, etc., as appropriate in the opinion of the court.
In cases involving the witness testimony, most judges will require the witnesses to testify in court, otherwise the other party is likely to challenge the effectiveness of the witness’s testimony on the grounds that it has not been fully examined.
IV. Does China have a cross-examination system
There is no specific provision on cross-examination in Chinese laws. According to the CPL and relevant judicial interpretations, judges, the parties and their attorneys can question witnesses, but the parties and their attorneys need the permission of judges before questioning witnesses; if judges deem it necessary, they can request witnesses to question each other. However, there are no detailed provisions in Chinese laws on the order, rounds, scope of questions, etc.
In the absence of detailed provisions on the cross-examination, the parties may refer to strategies for questioning witnesses from good examples of cross-examination. However, due to the inquisitorial system of China’s civil litigation, any question to witnesses should obtain judges’ prior permission. In China’s judicial practice, it is the judges who are playing a leading role in the process of litigation and their questioning is often deciding. Therefore, we generally do not recommend our clients to spend too much time in cross-examination strategies.
V. Who will bear the cost of the witness testimony
According to the CPL, the losing party shall bear the expenses for the witness testimony, including the expenses for transportation, accommodation, meals, and other necessary expenses for the witness to testify in court, as well as the lost wages. The necessary expenses for transportation, accommodation, and meals shall be calculated as per the travel expenses and subsidy standards of the Chinese government’s staff; the lost wages shall be calculated as per the average daily wage standard of the workers in the previous year published by the government. Taking Beijing as an example, the long-distance transportation is subsidized according to the second-class seat of high-speed rail or the economy class flight, specifically, CNY 80 (about USD 11.5) per day for urban transportation, CNY 500 (about USD 72) per day for accommodation, and CNY 508 (about USD 73) per day for lost wages by reference to the average daily wages of Beijing in 2018.
The above economic compensation rules are newly added to the CPL, as revised in 2012, to encourage witnesses to testify in court and increase the court appearance rate of witnesses in China’s judicial practice. As the recovery of the witness testimony costs often requires the court’s involvement, we suggest our clients to actively propose such requests to the court, so as to avoid unnecessary economic losses caused by some judges’ unfamiliarity with such rules.
VI. What is the effect of witness testimony in practice
Although the law stipulates that it is an obligation to testify in court for those who know the truth, the law does not specify the legal liability of the witness if he/she refuses to do so without justified reasons. In addition, according to a survey about the reasons why witnesses do not testify in court funded by the Chinese Academy of Social Sciences, “averting litigation” and “unwilling to offend others” are the main reasons for many people not wanting to testify in court. This can be confirmed by the statistics from local courts and other studies in this field. According to a statistical report years ago, the rate of Chinese witnesses testifying in court is less than 10%.
Due to the low appearance rate of witnesses, the admission rate of witness testimony has also been greatly affected. Besides, perjury, though being cracked down all the time, never dies in China for various reasons; while the punishment for perjury is not harsh enough (for discussion on the perjury, see an earlier post by Guodong Du and Meng Yu). This further weakens the effectiveness of witness testimony in China’s civil litigation.
VII. Conclusions and suggestions
To sum up, the role of witness testimony in China’s civil litigation is relatively limited. If it is necessary to use the witness testimony, our suggestions to the parties are as follows:
(1) The application for witness testimony shall be made before the expiration of the time limit for presenting evidence.
(2) Try the best to persuade the witness to appear in court. If the witness is indeed unable or unwilling to appear in court, try to find justified reasons to persuade the judge to understand the witness’ non-appearance.
(3) The witness shall state the specific facts personally experienced by himself/herself, answer questions clearly, and avoid speculations or comments.
(4) Prepare for the questions that may be raised by the judge and the other party, carefully evaluate the pros and cons of the witness’s appearance in court to avoid the adverse effects caused thereby.