Rules Concerning Evidence in Civil Proceedings
-----Linus Zhu

"He who asserts must prove: ei incumbit probatio qui dicit, non qui negat." This far from reliable maxim once served as one of the broadest governing principles underlying the Chinese legislation on civil procedure in the past decade. This has now been modified by one of the new interpretations promulgated by the Supreme Court of the People's Republic of China.

The Rules, "Several Rules Concerning Evidence in Civil Proceedings", which came into effect 1 April 2002, were planned by the Supreme Court as one of twenty-two central research subjects in 2000, and elaborated on the basis of improving the civil evidence system and fulfilling China's commitments to the WTO. The Rules finally shed light on many of the particulars of the Civil Procedure Law of 1991 ("Law") and its 1992 interpretation rules ("interpretation"), and has a significant impact on the possibility of success in civil proceedings. Since many issues are detailed in the Rules, it will be convenient to present an overview on three major areas the Rules address: 1) burden and standard of proof; 2) determination in terms of evidence; and 3) limits on judicial investigation.

Burden of Proof and Standard of Proof

Article 2 of the Rules construes the principle of burden of proof that is distributed between each party, which was as originally provided for in Article 64 of the Law: "he who asserts must prove." That party must prove a fact in question through evidence elicited from the same, either to favor his claim or to rebut the opponent. Any lack of sufficient evidence in support of his claim will give rise to adverse inference on his part, and even on the eventual outcome of the proceedings.

This is not an absolute, however. Based on Article 74 of the 1992 interpretation, Article 4 of the Rules further detail the incidences in which the evidential burden is said to shift. Under some circumstances, the burden of going forward with evidence shall be shifted to the party who asserts its right to be exempted from strict liability or liability without fault, inter alia, claims on damages or torts arising from patent infringement, pollution, collapse of construction, product liability, joint strict liability, high-risk operations, medical malpractice.

The Rules thus requires more diligence and circumspection not only in the collection and presentation of evidence, but its formalities as well. Apart from any necessary evidence to be adduced, an attached written explanation must be filed together with the statement of claim or defense. On the other hand, a time limit (of no less than thirty days) which is set by the court shall need to be honored, and the time for exchange of discovery evidence is limited to no more than two occasions, except with the leave of the court. Failure to provide evidence within the above limitation after receipt of court's notice of acceptance and/or for defense shall be deemed as a waiver of rights - failing to meet deadlines can affect the outcome of an action.

It should be noted that, in accordance with the article 73 of the Rules, proof on the "balance of probability" is adopted as a supplement to the general standard of proof upon which the burden of a party on a given case may be discharged.

Determination in terms of evidence

New evidence

To help ensure the consideration of only evidence that is timely produced and consistent with the various stages of admission (so as to avoid evidentiary surprises), the Rules attempt to clarify terminology by introducing the following definitions:

1. New evidence at trial, including such evidence as discovered after the expiration of the time limits, is incapable of going before the judge within the time limit or postponement.
2. new evidence at appeal, including such evidence as discovered after the expiration of the trial or that which should have been presented at trial is admissible in evidence at the appeal by means of judicial investigation.
Despite setting forth some guidelines and definitions, there are still holes, such as the failure to define what is "new" evidence) which wind up leaving interpretation open to the judge, falling short of the expectations of lawmakers.
n Types of evidence and evidence obtained improperly or illegally

It is common for an original document to carry more weight than other documentary evidence. In addition to confirming the effect of originals, articles 69 through 77 of the Rules further define the value of various types of evidence. Evidence obtained by improper or illegal means will now actually be admissible by the court, as long as it does not impair the lawful right of third parties and will not contravene the rules and regulations (tape recording without the consent of the party remains excluded).

Limits on Judicial Investigation

In past years, the ambiguous determination of where the initiative lies for judges in judicial investigation has been limited to common sense practice in Chinese civil proceedings. The Rules draw a line on the limits of evidence investigation where the judge must or may take initiatives.
The court will no longer be responsible for investigating any proof other than those in conjunction with state or public interests, procedural matters or upon the party's request. Even for the latter, the party's request for investigation will be accepted only if made in writing and accompanied by details and explanations to the extent that the evidence in question shall concern national, commercial or personal secrets, or is by nature inaccessible to the party relying on such evidence.

Conclusion

There are a number of practical constraints inherent in the fact-finding process and common to all legal systems: considerations of time and cost and the need for finality to litigation.[1] The normalization of the Chinese evidentiary system is making great progress in Chinese legislation and will promote the fair disposal of proceedings that will help save costs.

Although the Rules are a positive step forward, they still may not correspond to every particularity or difficulty a party may face. It is thus advisable that several general considerations be taken into account:

Evidence should be well prepared and accurate, with a clear proof list and explanations
Pay attention to time limits and take advantage of opportunities to exchange evidence
Use and properly maintain original documents for use as evidence in cross-examinations
Provide sufficient and appropriate documents to support requests for judicial investigation; in case of rejection by the court, do not forget to request for a written rejection of inadmissibility from the court
Timely prepare any certification or authentication of foreign related documents on the contents of which a party seeks to rely
Express your allegation, opinion, objection or recognition explicitly and logically before the judge.

Although judges are still furnished with broad discretion in the course of civil proceedings, most notably in the determination of admissibility, inroads have been made in areas such as statutory presence in court of originals, translations, certification and authentication of foreign documentary evidence. Regardless, the development of the new Rules is somewhat of a breakthrough. They adopt a juridical framework and a number of principal rules of evidence that originated from western judicial systems (such as burden of proof, standard of proof, estoppel, judicial notice, preponderance of probability). Acknowledging and adopting positive aspects of western systems helps bring about a more modern era in Chinese legal development.

[1] See Morgan, introduction to the American Law Institute Model Code of Evidence.1942. at pp 3-4