All questions

Breach of contract

The success of a claim for breach of contract depends on the satisfaction of the following elements:

  1. formation of the contract; and
  2. the defendant fails to perform its obligation or its performance fails to satisfy the terms of the contract.

With regard to liabilities resulting from breach of contract, Chinese law applies the principle of liability without fault. That is, the defendant's intention or negligence is not an element for breach of contract claim.

The general rule of evidence is that the party raising a claim bears the burden of proof. Therefore, the plaintiff bears the burden of proving that the above elements are well established. The extent of the plaintiffs' burden varies. Usually the plaintiff can justify its claims merely by a 'preponderance of the evidence' – namely, by showing that the claim against the defendant is more likely true than not. According to Article 108 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law, with regard to the evidence provided by the party concerned with the burden of proof, where the court believes that the existence of a fact to be proved is highly probable upon examination and in combination with the relevant facts, it shall affirm the existence of the said fact.

Chinese courts permit the introduction of various kinds of evidence, including documentary evidence, real evidence, witnesses statement, statements by parties, expert's opinion, audio-visual materials and electronic evidence. As a general rule, all types of evidence must be verified by the court as to its authenticity before being allowed to be used as a basis for determining facts. In addition, in order for a piece of evidence to be admitted, the party submitting the evidence needs to prove that the evidence is relevant to the claim and obtained through lawful means. Documents formed outside China need to be notarised and legalised in order to be admitted as evidence.

Unlike common law jurisdictions, there is no evidence discovery in China. Except for limited circumstances, a party is allowed to only submit evidence in its favour, as there is no obligation to disclose all documents. The court is allowed to collect evidence, on its own initiative or per a party's request, from the parties to the case or other relevant parties. These parties being investigated by the court have obligation to cooperate and provide evidence as required.