The Provisions of the Supreme People’s Court on Evidence in Civil Procedures of the People’s Republic of China (the “Old Provisions”) have been in effect since April 1, 2002, and provide guidance on the application of rules of evidence in civil proceedings. Following amendments to the Civil Procedure Law in 2007, 2012, and 2017 and the publication and implementation of the 2015 Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China (the “Interpretation of the Civil Procedure Law”), substantive changes have taken place in the practice of civil litigation. As a result, the Supreme People’s Court began the process of updating the Old Provisions in 2015 and published the revised Civil Evidence Provisions (the “New Provisions”) on December 25, 2019. The New Provisions will come into effect on May 1, 2020.
The New Provisions have introduced the following changes:
1. The “rule of admission”
The rule of admission was provided in article 8 and article 74 of the Old Provisions. The effect of the rule is that admission by one party dispenses with the burden of proof of the admitted fact by the other party.
The New Provisions introduced the following changes:
First, the wider scope of application of the rule. Under article 3, paragraph 2 of the New Provisions, the rule is now applicable to admissions made in the process of exchanging evidence, interviewing and investigation in addition to those made in a hearing as provided in the Old Provisions.
Second, the “rule of presumed admission.” Under article 4 of the New Provisions, either party’s failure to deny the unfavorable facts claimed by the other party, or to admit or deny the facts upon a judge’s inquiry, can be regarded as an admission of the unfavorable facts.
Third, the legal representative’s authority to admit. This revision increases the risk borne by legal practitioners. Article 5 of the New Provisions provides that unless it is expressly excluded in the power of attorney, lawyers will be presumed to have the power of admission on behalf of their client regardless of whether the fact admitted would have the effect of their client admitting the other party’s claim. Prior to the New Provisions, legal representatives had to obtain special authority to be able to admit facts which would have the effect of their client admitting the other party’s claim. Under the New Provisions, it may be beneficial to both the legal representatives and their client to exclude the authority to admit facts, which could have the effect of the client admitting the other party’s claim, from the power of attorney.
Fourth, admission in a joint action. Article 6 of the New Provisions distinguishes between two types of joint actions – necessary joint action and ordinary joint action – and provides different admission rules for each. Under ordinary joint action, an admission made by a person of one party will not be taken as an admission by other persons of the same party. By contrast, under necessary joint action, an admission made by a person of one party will be taken as an admission by other persons of the same party, unless those other persons expressly deny the admitted fact.
Fifth, admission with conditions. Under the New Provisions, a party may admit a fact with certain conditions (as a compromise between the parties). Article 7 of the New Provisions provides that the court has discretion as to whether to accept the admission. When lawyers use admission as a trial strategy, they should fully explain to their client the risks of the court’s non-acceptance of the admission with conditions.
Sixth, exceptions from admission. Article 8 of the New Provisions provides that the rule of admission does not apply to facts which may damage national or public interests, or relate to (1) a person’s identity and status, (2) actions in the public interest, (3) intentional and malicious acts of complicity that infringe the lawful rights and interests of others, or (4) procedural matters such as joining a party in a court case, or suspending or terminating a court case.
Seventh, withdrawal of admission. Under article 9 of the New Provisions, for withdrawal of admission due to coercion or a major misunderstanding, the prerequisite for “the admission being inconsistent with the facts” is no longer required. Article 9 also provides that the court may grant the withdrawal of admission by making an oral or written ruling. In accordance with article 154, paragraph 2 of the 2017 Civil Procedure Law, such ruling is not subject to appeal.
2. Duty to disclose documentary evidence
The duty to disclose documentary evidence is stipulated in the Interpretation of the Civil Procedure Law. Where documentary evidence is under the control of the other party, the party who bears the burden of proof may submit a written application requesting the court to order the other party to disclose it before the time limit for adducing evidence expires. Expenses arising from such document disclosure request shall be assumed by the applicant.
The New Provisions supplement the Interpretation of the Civil Procedure Law by providing the requirements for an application for disclosure (article 45), establishing the procedural rules for the application (article 46), clarifying the scope of documentary evidence that it may be required to disclose (article 47), and establishing the legal consequences of refusing to disclose such evidence (article 48).
3. Statement of truth
The New Provisions provide that the litigating parties and witnesses should sign and read the statement of truth (article 65 and article 71). If any litigating party or witness knowingly provides a false statement, they may be subject to sanction, including fines or detainment, even criminal liability in accordance with article 111 of the 2017 Civil Procedure Law (article 78).
4. Electronic data
The New Provisions clarify the scope of electronic data (article 14), the requirement for providing electronic data as evidence (article 15) and the standard for analyzing electronic data (article 93 and article 94).
In brief, the New Provisions and the Interpretation of the Civil Procedure Law are closely related. The New Provisions have completely revised the Old Provisions, and added some new procedures and rules in accordance with the 2017 Civil Procedure Law and the Interpretation of the Civil Procedure Law. The New Provisions will apply to cases that remain unresolved as of the date of their implementation. Where cases have already been concluded, the New Provisions do not apply retrospectively and application for a retrial by virtue of the New Provisions is not possible.