On 25 December 2019, the PRC Supreme People’s Court (“SPC”) released the amended Provisions on Evidence for Civil Proceedings (“Amended Evidence Rules”), which will come into force on 1 May 2020, replacing the old evidence rules that have been in effect since 2002.
Major Provisions
Significant provisions in the Amended Evidence Rules include, among others, the following.
1. Electronic data evidence
Articles 14, 15, 93 and 94 of the Amended Evidence Rules set out the types of electronic data admissible as evidence and specify the forms for the production and criteria for authentication of such evidence.
Article 14 of the Amended Evidence Rules provides that:
“[e]lectronic data shall include the following information and electronic documents: (i) Information published on such online platforms as webpages, blogs and microblogs; (ii) messages transmitted through network communication applications such as mobile phone text messages, emails, instant messages, group chat messages, etc.; (iii) user registration information, identity authentication information, electronic transaction records, communication records, login logs, etc.; (iv) electronic documents such as text files, pictures, audio and video records, digital certificates, computer programs, etc.; and (v) other information stored, processed or transmitted in a digital form which can prove the facts of cases.”
Electronic data was first recognized as a form of admissible evidence in the 2012 edition of the PRC Civil Procedure Law[1]. However, until the Amended Evidence Rules, there has been a lack of clear guidance as to the scope and form of such evidence and how it ought to be presented in civil proceedings. The Amended Evidence Rules fills the gap.
Article 15 provides that electronic data shall be presented in its original form and the duplicates generated by the creator of the electronic data, direct printouts of the electronic data and any other media that can display the electronic data shall be considered as the original forms. This provision solves the long-standing confusion regarding the requirement for original evidence set in the Civil Procedure Law.
Article 93 of the Amended Evidence Rules sets forth the factors that Chinese courts may take into consideration in determining the authenticity of electronic data. Such factors include:
- the level of integrity and reliability of the hardware and software environment;
- its operating condition; and
- the methods by which the electronic data were generated, stored, extracted and transmitted, etc.
Therefore, when collecting electronic data evidence for use in civil proceedings, it is important to engage a professional discovery team with solid knowledge and experience in handling electronic data collection processes to ensure that the collection is conducted in a defensible and forensically sound manner. In some cases it may also be advisable to have a public notary to notarize the collection and imaging process in China.
Moreover, under certain circumstances, Chinese courts may presume the authenticity of electronic data unless there is evidence to the contrary. Such circumstances include – (i) where the electronic data is submitted or kept by a party, and such data is unfavourable to that party; (ii) where the electronic data is submitted or confirmed by an independent third party platform that records or retains the data; (iii) where the electronic data is generated from the ordinary course of business; (iv) where the electronic data is stored in archives; (iv) where the electronic data is stored, transmitted and extracted in accordance with the manner agreed by the parties, and (vi) where the contents of the electronic data have been notarized by a notary public.
2. Legalization requirement on evidence formed overseas
Pursuant to the current evidence rules[2] and judicial practices, it is a formal requirement that any evidence or procedural documents (e.g. power of attorney) formed overseas shall first be notarized by a notary in the country where the evidence was formed and thereafter, be authenticated by the Chinese embassy or consulate in the relevant country. Without fulfilling the two steps, evidence formed overseas may not be admitted and recognized by the Chinese courts. However, such notarization and authentication process can be time consuming and costly, and may even delay the litigation timeline.
The Amended Evidence Rules eases the burden of the parties, by limiting the required notarization and authentication requirement to official documentary evidence and evidence involving identity relations that are formed overseas. In other words, evidence formed overseas, which does not fall into the above-mentioned two categories will no longer be subject to the lengthy notarization and authentication process, and can be used in Chinese courts as evidence directly. Official documentary evidence usually refers to documents issued by government organs. Evidence such as contracts and communications between parties is not considered to be official documentary evidence and is free from the legalization requirement. That being said, the Amended Evidence Rules do not explicitly define the scope of official documentary evidence, which may leave some uncertainty in the implementation of this provision in judicial practice.
3. Document disclosure duty
The SPC’s Interpretation on the Implementation of the Civil Procedure Law (“2015 Interpretation”) first introduced the duty for a party to disclose documentary evidence at the request of the counter-party. Pursuant to Article 112 of the 2015 Interpretation, the party who bears the burden of proof can submit a written application to the counterparty in civil proceedings requesting the disclosure of documents in its possession. However, Article 112 does not provide detailed guidance for Chinese courts to follow, and hence is rarely used in practice.
The Amended Evidence Rules supplement and elaborate the 2015 Interpretation in this respect. Particularly, without derogating from the generality of Article 112 of the 2015 Interpretation, it provides that a party in possession of the following documentary evidence shall disclose it at the request of the counter-party:
a) documents the party has previously referred to in litigation proceedings;
b) documents generated for the benefit of the counter-party;
c) documents that the counter-party is entitled to review or obtain under law;
d) accounting books and underlying records and vouchers; and
e) other documents which the court may find appropriate.
Although the Amended Evidence Rules do not state that only the four types of documents, as specifically set out above, are subject to the disclosure duty, in practice it may be difficult to request disclosure of other types of documents. As such, the disclosure scope is still limited compared with the discovery regime in common law proceedings.
Notably, documents involving state secrets, trade secrets, privacy and documents subject to legal duties of confidentiality are not exempt from the disclosure duty, but can be exempt from open court examination and publication.
The written application shall specify the document requested and demonstrate the relevancy and importance of the requested document, as well as proof that such document is within the control of the requested party. The courts shall hear both parties’ opinions before deciding whether the disclosure of the documents shall be ordered. If the application is not specific, or fails to prove that the particular document is relevant to the case or has a material bearing on the case outcome, the court will dismiss the application.
If a party refuses to follow a court order to disclose a document without justifiable reasons, the court has discretion to make an adverse inference against that party.
Action to consider
In summary, the Amended Evidence
Rules have introduced significant rules to facilitate litigation in China, signalling
the Chinese government’s intention to improve its litigation system. Therefore, parties who intend to litigate in a
Chinese court should take heed of the changes and improvements introduced
therein.
[1] See Article 63, PRC Civil Procedure Law (amended 2012).
[2] See Article 11, Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings (2001 version).
