In China’s civil litigation, judges attach the greatest importance to the documentary evidence. The role of witness testimony and physical evidence is almost negligible.
I. Documentary evidence is the most important evidence in Chinese civil lawsuits
In accordance with the Civil Procedure Law ("CPL") of China, there are 8 types of evidence: documentary evidence, physical evidence, audio-visual materials, electronic data, witness testimony, statement of the parties, appraisal opinions, and records of inspection. The scope of the documentary evidence in this article is broader, including not only the documentary evidence specified in the CPL, but also, in form of written documents, the audio-visual materials, witness testimony, statement of the parties, appraisal opinions, and records of inspection.
In China’s civil litigation, the judge mainly relies on the documentary evidence to determine the facts of the case. If you just pick any first-instance judgment (because the first-instance mainly deals with evidence and factual issues) made by a Chinese judge, you will find that almost 90% of the evidence listed in the judgment is documentary evidence.
The importance of the documentary evidence is reflected in the following four aspects: First, the documentary evidence will be sent to the court along with the documents required for the litigation, and acts as the basis for the litigation and the basis for the judge’s pre-trial preparation, while the other types of evidence will not be processed in this manner. Second, during the court hearing, the presentation and examination of evidence are basically carried out around the documentary evidence. Third, judges are more willing to admit the documentary evidence than other types of evidence. Fourth, in most cases, the judges determine the facts of the case almost entirely based on the documentary evidence.
II. Why the Chinese courts attach so much importance to the documentary evidence
1. The documentary evidence is more authentic
Chinese judges believe that documentary evidence is not easy to be tampered with. Because information such as text once recorded on paper, its content does not change over time. Therefore, Chinese judges believe that documentary evidence more accurately reflects what happened.
2. Chinese judges generally distrust the testimonial evidence
Chinese judges often do not attach much significance to the testimonial evidence (mainly witness testimony and statements of the parties) because they believe that such evidence has some flaws, including: First, the content of the utterance is easily subject to change. For example, the testimony that the witness says today, and the testimony that the witness said yesterday, are likely to be different. It is difficult for judges to determine which one is true. Second, witnesses and parties may lie, but the documentary evidence will not. Judges generally believe that witnesses are likely to commit perjury in order to protect themselves, protect related parties, or even to obtain remuneration (to a large extent, this is because in China's civil litigation, perjury is rarely punished). Third, witnesses rarely appear in court. Many Chinese are reluctant to testify in court because they think it will cause trouble for them to deal with the court.
3. Documentary evidence can prove the facts more easily
The content of the documentary evidence is usually clear and specific, and ordinary people can understand the meaning of it after reading. Therefore, the judge and the parties concerned can clearly understand what documentary evidence proves. This is not the case with physical evidence.
4. Documentary evidence can improve the efficiency of litigation
It is precisely because the documentary evidence can prove the facts more easily, the documentary evidence can greatly reduce the workload of the judge in handling the case. After all, witnesses need to testify in court, and physical evidence needs to be cross-examined in court, which will take up a lot of time of the judges. At present, Chinese courts face the dilemma of litigation explosions and judges overworking, and judges tend to accept more time-saving evidence.
5. The bureaucratization of Chinese courts requires the documentary evidence
The hierarchical structure of Chinese courts has led to civil litigation also running in a bureaucratic manner. As Marx Weber described, documents play an important role in the bureaucracy. Therefore, the court also tends to receive evidence in the form of documents in order to manage the case trial.
6. Judges prefer documentary evidence in order to avoid occupational risks
In the Chinese judicial system, it is generally believed that documentary evidence is more authentic and can prove the facts more easily. Therefore, when the judges face the accusation and punishment of their supervisors, it is easier for them to use the documentary evidence to restore the previous case trial, thus proving that their behavior and judgment at that time were reasonable. Therefore, the documentary evidence became the shield for judges to protect themselves.
III. The key to the documentary evidence is the original version
The original of the documentary evidence occupies an important position in Chinese civil lawsuits because judges are more accustomed to making judgments based on the original of the documentary evidence.
Specifically, according to the CPL, the original should be submitted when the party submits the documentary evidence to the court. Only in extremely special circumstances can the party submit a duplicate, and the judge needs to determine whether the duplicate is consistent with the original in consideration of other evidence.
It is worth noting that Chinese law does not clearly specify the definitions of the original and the duplicate. In practice, it is generally believed that if there is the original handwriting of a natural person or the original seal of the enterprise or government department on the document, then such document is authentic.
In China’s civil litigation, once a piece of documentary evidence is required to prove the fact, it means that the original documentary evidence is required. Therefore, in China's commercial activities, the parties generally require that civil activities be recorded in the form of documents and that the original be retained by the parties. Only in this case, the transaction is safe. Without the original documentary evidence, it would be difficult for the parties to take a favorable position in the proceedings.
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Lin Haibin also contributes to the post.