Decision of the Supreme People's Court on Revising the Several Provisions on Evidence in Civil Proceedings
Decision of the Supreme People's Court on Revising the Several Provisions on Evidence in Civil Proceedings
Decision of the Supreme People's Court on Revising the Several Provisions on Evidence in Civil Proceedings
Fa Shi [2019] No.19
December 25, 2019
The Decision of the Supreme People's Court on Revising the Several Provisions on Evidence in Civil Proceedings adopted at the 1777th meeting of the Judicial Committee of the Supreme People's Court on October 14, 2019 is hereby promulgated for implementation as of May 1, 2020.
Decision of the Supreme People's Court on Revising the Several Provisions on Evidence in Civil Proceedings
(Adopted at the 1777th meeting of the Judicial Committee of the Supreme People's Court on October 14, 2019)
According to the Civil Procedure Law of the People's Republic of China, the 1777th meeting of the Judicial Committee of the Supreme People's Court has decided to revise the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings as follows:
I. Article 1 shall be revised to read as:
"Any plaintiff who files a claim or any defendant who files a counterclaim in the people's court shall provide admissible evidence in support thereof".
II. Article 3 shall be revised as Article 2.
III. Articles 2, 4, 5, 6 and 7 shall be deleted.
IV. Paragraph 1 of Article 8 and Article 74 shall be changed to Article 3 and revised to read as:
"Where one party states facts unfavorable to him or explicitly acknowledges facts unfavorable to him in the course of litigation, the other party need not produce evidence to prove the relevant facts.
Where the party concerned explicitly acknowledges any fact unfavorable to him in the course of evidence exchange, inquiry, or investigation or in the statement of claim, the statement of defense, the statement made by his representative or other written materials, the preceding paragraph shall apply".
V. Paragraph 2 of Article 8 shall be changed to Article 4 and revised to read as:
"Any party who neither admits nor denies facts unfavorable to him as claimed by another party, but fails to explicitly admit or deny such facts after the judge has delivered an explanation and made inquiries, shall be deemed to have admitted such facts".
VI. Paragraph 3 of Article 8 shall be changed to be Article 5 and revised to read as:
"Where any party entrusts an agent ad litem to appear on his behalf in a case, any self-confession made by the agent ad litem shall be deemed to be that of the party concerned, except for matters expressly excluded in the power of attorney.
Where the party is present but expressly denies the self-confession made by the agent ad litem, the self-confession shall not be deemed to have been made by that party".
VII. One article shall be added as Article 6 which reads as:
"In ordinary co-litigation, the self-confession made by one or more of the co-litigants has effect on the party who made the self-confession.
In necessary co-litigation, if one or more of the joint litigants make a self-confession which, however, is denied by the other joint litigants, the self-confession will have no effect. Where the other joint litigants neither acknowledge nor deny the self-confession, and still do not expressly give their opinions after the judge has delivered an explanation and made inquiries, the self-confession shall be deemed as having been made by all the joint litigants".
VIII. One article shall be added as Article 7 which reads as:
"If any party has restrictions on any fact claimed by the other party that is unfavorable to it or acknowledge such fact by attaching additional conditions to it, the people's court shall decide whether or not it constitutes a self-confession by taking comprehensive consideration of the case situation".
IX. One article shall be added as Article 8 which reads as:
"The relevant provisions on self-confession shall not apply to any fact stipulated in Paragraph 1 of Article 96 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China.
If any self-confessed fact is not consistent with the facts that have been ascertained, the people's court will not confirm it".
X. Paragraph 4 of Article 8 shall be changed to Article 9 and revised to read as:
"Under any of the following circumstances, where any party withdraws his self-confession prior to the end of the court hearing, the people's court shall permit such withdrawal:
1. consent of the other party has been obtained; or
2. the self-confession was made under coercion or was due to a gross misunderstanding.
Where the people's court permits the party to withdraw his self-confession, it shall make an oral or written ruling".
XI. Article 19 shall be changed to Article 10 and revised to read as:
"No party shall be required to present evidence to prove any of the facts described below:
1. natural laws and theories and law;
2. facts that are common knowledge;
3. any fact inferred in accordance with legal provisions;
4. any fact inferred on the basis of a known fact or rule of everyday life;
5. any fact confirmed in an arbitration award that has taken effect;
6. any basic fact confirmed in a judgment of the people's court that has taken effect; or
7. any fact that has been proved in a valid notary document.
Where any party produces evidence disproving any fact described in Items 2 to 5 of the preceding paragraph, the relevant fact shall be provable; where any party produces evidence refuting any fact described in Items 6 and 7 of the preceding paragraph, the relevant fact shall be provable".
XII. Article 10 shall be revised as Article 11.
XIII. One article shall be added as Article 12 which reads as:
"If movable property is used as evidence, the original item shall be submitted to the people's court. If the original item is not suitable for removal or preservation, the party concerned may provide a reproduction, video materials or other substitutes thereof.
After receiving the movable property or its substitute submitted by the party, the people's court shall promptly notify both parties to go to the people's court or the site storing such property or substitute for inspection".
XIV. One article shall be added as Article 13 which reads as:
"Where any party uses real property as evidence, he shall provide the people's court with the image data of the real property.
The people's court shall, if it deems it necessary, notify both parties to go to the scene for inspection".
XV. One article shall be added as Article 14 which reads as:
"Electronic data includes the following information and electronic files:
1. information released by network platforms such as webpages, blogs, and microblogs;
2. communication information of network application services such as mobile phone text messages, emails, instant messaging, and communication groups;
3. users' registration information, identity authentication information, electronic transaction records, communication records, login logs and other information;
4. documents, pictures, audio, video, digital certificates, computer programs, and other electronic files; and
5. other information stored, processed, and transmitted in digital form that can prove the facts of the case".
XVI. One article shall be added as Article 15 which reads as:
"Any party who uses audiovisual materials as evidence shall provide the original carrier storing the audiovisual materials.
Any party who uses electronic data as evidence shall provide the original. Any copy produced by the producer of electronic data that is consistent with the original, or any printed copy directly sourced from the electronic data or other output medium that can display or identify the electronic data, shall be regarded as the original of the electronic data".
XVII. Article 11 shall be changed to Article 16 and revised to read as:
"Where any written evidence submitted by the parties is sourced from outside the territory of the People's Republic of China, the evidence concerned shall be certified by a notary's office in the relevant country of origin, or shall be certified in accordance with the procedures specified in the relevant treaty concluded between the People's Republic of China and the country concerned.
Any evidence that is sourced from outside the territory of the People's Republic of China and is related to identity shall be certified by a notary's office in the relevant country of origin and authenticated by the embassy of the People's Republic of China in that country, or shall be certified in accordance with the procedures specified in the relevant treaty concluded between the People's Republic of China and the country concerned.
Where any evidence submitted by the parties is sourced from Hong Kong, Macao or Taiwan, the applicable evidential formalities shall be observed".
XVIII. Article 12 shall be revised as Article 17.
XIX. Article 13 shall be changed to Article 18 and revised to read as:
"Where both parties to a case consent to the admission of any fact that falls under the circumstance specified in Paragraph 1 of Article 96 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, the people's court may order the parties to produce relevant evidence".
XX. Article 14 shall be revised as Article 19.
XXI. Articles 15, 16 and 17 shall be deleted.
XXII. Paragraph 2 of Article 19 shall be deleted, and Article 18 and Paragraph 1 of Article 19 shall be changed to Article 20 and revised to read as:
"To petition the people's court to investigate and collect evidence, the relevant party or the agent ad litem thereof shall submit a written application before the expiry of the time period for producing evidence.
The application shall clearly specify the basic details of the evidence concerned, such as the name of the person or entity to be investigated, his or its address, the name or content of the evidence to be investigated and collected, the reason why the evidence needs to be investigated and collected by the people's court, the facts in support of which the evidence is sought, and clear evidence".
XXIII. Article 20 shall be changed to Article 21 and revised to read as:
"Written evidence investigated and collected by the people's court may be original documentation or certified reproductions or photocopies thereof. In the case of a reproduction or photocopy, the source of the document or item and the manner in which it was collected shall be specified in the investigation notes".
XXIV. Article 21 shall be changed to Article 22 and revised to read as:
"Physical evidence investigated and collected by the people's court shall consist of the original items. In the event that it would be difficult for the person investigated to provide the original item, a reproduction or image data thereof may be provided instead. In the case of a reproduction or image data, the investigation notes shall specify the circumstances under which the evidence was obtained".
XXV. Article 22 shall be changed to Article 23 and revised to read as:
"The people's court that investigates and collects audiovisual materials and electronic data shall request that the person investigated provide the original recording of the relevant data.
Where it is difficult to provide the original recording, a copy may be provided. In the case of a copy, the people's court shall specify the source of the evidence and the production method used in the investigation notes.
Where the people's court adopts evidence preservation measures against the audiovisual materials or electronic data, the preceding paragraph shall apply".
XXVI. One article shall be added as Article 24 which reads as:
"When investigating and collecting evidence that may be subject to authentication, the people's court shall abide by the relevant technical specifications to ensure that the evidence is not contaminated".
XXVII. Article 23 shall be changed to Article 25 and revised to read as:
"Where any party or his interested party applies for a preservation order relating to evidence pursuant to Article 81 of the Civil Procedure Law, the application shall set forth the basic information of the evidence to be preserved, the reason for application for preservation and the preservation measures to be taken.
Any party who applies for a preservation order relating to evidence pursuant to Paragraph 1 of Article 81 of the Civil Procedure Law shall make the application before the expiry of the time period for producing evidence.
Where different provisions concerning the pre-trial preservation of evidence exist in other laws or judicial interpretations, such provisions shall prevail".
XXVIII.
......
Fa Shi [2019] No.19
December 25, 2019
The Decision of the Supreme People's Court on Revising the Several Provisions on Evidence in Civil Proceedings adopted at the 1777th meeting of the Judicial Committee of the Supreme People's Court on October 14, 2019 is hereby promulgated for implementation as of May 1, 2020.
Decision of the Supreme People's Court on Revising the Several Provisions on Evidence in Civil Proceedings
(Adopted at the 1777th meeting of the Judicial Committee of the Supreme People's Court on October 14, 2019)
According to the Civil Procedure Law of the People's Republic of China, the 1777th meeting of the Judicial Committee of the Supreme People's Court has decided to revise the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings as follows:
I. Article 1 shall be revised to read as:
"Any plaintiff who files a claim or any defendant who files a counterclaim in the people's court shall provide admissible evidence in support thereof".
II. Article 3 shall be revised as Article 2.
III. Articles 2, 4, 5, 6 and 7 shall be deleted.
IV. Paragraph 1 of Article 8 and Article 74 shall be changed to Article 3 and revised to read as:
"Where one party states facts unfavorable to him or explicitly acknowledges facts unfavorable to him in the course of litigation, the other party need not produce evidence to prove the relevant facts.
Where the party concerned explicitly acknowledges any fact unfavorable to him in the course of evidence exchange, inquiry, or investigation or in the statement of claim, the statement of defense, the statement made by his representative or other written materials, the preceding paragraph shall apply".
V. Paragraph 2 of Article 8 shall be changed to Article 4 and revised to read as:
"Any party who neither admits nor denies facts unfavorable to him as claimed by another party, but fails to explicitly admit or deny such facts after the judge has delivered an explanation and made inquiries, shall be deemed to have admitted such facts".
VI. Paragraph 3 of Article 8 shall be changed to be Article 5 and revised to read as:
"Where any party entrusts an agent ad litem to appear on his behalf in a case, any self-confession made by the agent ad litem shall be deemed to be that of the party concerned, except for matters expressly excluded in the power of attorney.
Where the party is present but expressly denies the self-confession made by the agent ad litem, the self-confession shall not be deemed to have been made by that party".
VII. One article shall be added as Article 6 which reads as:
"In ordinary co-litigation, the self-confession made by one or more of the co-litigants has effect on the party who made the self-confession.
In necessary co-litigation, if one or more of the joint litigants make a self-confession which, however, is denied by the other joint litigants, the self-confession will have no effect. Where the other joint litigants neither acknowledge nor deny the self-confession, and still do not expressly give their opinions after the judge has delivered an explanation and made inquiries, the self-confession shall be deemed as having been made by all the joint litigants".
VIII. One article shall be added as Article 7 which reads as:
"If any party has restrictions on any fact claimed by the other party that is unfavorable to it or acknowledge such fact by attaching additional conditions to it, the people's court shall decide whether or not it constitutes a self-confession by taking comprehensive consideration of the case situation".
IX. One article shall be added as Article 8 which reads as:
"The relevant provisions on self-confession shall not apply to any fact stipulated in Paragraph 1 of Article 96 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China.
If any self-confessed fact is not consistent with the facts that have been ascertained, the people's court will not confirm it".
X. Paragraph 4 of Article 8 shall be changed to Article 9 and revised to read as:
"Under any of the following circumstances, where any party withdraws his self-confession prior to the end of the court hearing, the people's court shall permit such withdrawal:
1. consent of the other party has been obtained; or
2. the self-confession was made under coercion or was due to a gross misunderstanding.
Where the people's court permits the party to withdraw his self-confession, it shall make an oral or written ruling".
XI. Article 19 shall be changed to Article 10 and revised to read as:
"No party shall be required to present evidence to prove any of the facts described below:
1. natural laws and theories and law;
2. facts that are common knowledge;
3. any fact inferred in accordance with legal provisions;
4. any fact inferred on the basis of a known fact or rule of everyday life;
5. any fact confirmed in an arbitration award that has taken effect;
6. any basic fact confirmed in a judgment of the people's court that has taken effect; or
7. any fact that has been proved in a valid notary document.
Where any party produces evidence disproving any fact described in Items 2 to 5 of the preceding paragraph, the relevant fact shall be provable; where any party produces evidence refuting any fact described in Items 6 and 7 of the preceding paragraph, the relevant fact shall be provable".
XII. Article 10 shall be revised as Article 11.
XIII. One article shall be added as Article 12 which reads as:
"If movable property is used as evidence, the original item shall be submitted to the people's court. If the original item is not suitable for removal or preservation, the party concerned may provide a reproduction, video materials or other substitutes thereof.
After receiving the movable property or its substitute submitted by the party, the people's court shall promptly notify both parties to go to the people's court or the site storing such property or substitute for inspection".
XIV. One article shall be added as Article 13 which reads as:
"Where any party uses real property as evidence, he shall provide the people's court with the image data of the real property.
The people's court shall, if it deems it necessary, notify both parties to go to the scene for inspection".
XV. One article shall be added as Article 14 which reads as:
"Electronic data includes the following information and electronic files:
1. information released by network platforms such as webpages, blogs, and microblogs;
2. communication information of network application services such as mobile phone text messages, emails, instant messaging, and communication groups;
3. users' registration information, identity authentication information, electronic transaction records, communication records, login logs and other information;
4. documents, pictures, audio, video, digital certificates, computer programs, and other electronic files; and
5. other information stored, processed, and transmitted in digital form that can prove the facts of the case".
XVI. One article shall be added as Article 15 which reads as:
"Any party who uses audiovisual materials as evidence shall provide the original carrier storing the audiovisual materials.
Any party who uses electronic data as evidence shall provide the original. Any copy produced by the producer of electronic data that is consistent with the original, or any printed copy directly sourced from the electronic data or other output medium that can display or identify the electronic data, shall be regarded as the original of the electronic data".
XVII. Article 11 shall be changed to Article 16 and revised to read as:
"Where any written evidence submitted by the parties is sourced from outside the territory of the People's Republic of China, the evidence concerned shall be certified by a notary's office in the relevant country of origin, or shall be certified in accordance with the procedures specified in the relevant treaty concluded between the People's Republic of China and the country concerned.
Any evidence that is sourced from outside the territory of the People's Republic of China and is related to identity shall be certified by a notary's office in the relevant country of origin and authenticated by the embassy of the People's Republic of China in that country, or shall be certified in accordance with the procedures specified in the relevant treaty concluded between the People's Republic of China and the country concerned.
Where any evidence submitted by the parties is sourced from Hong Kong, Macao or Taiwan, the applicable evidential formalities shall be observed".
XVIII. Article 12 shall be revised as Article 17.
XIX. Article 13 shall be changed to Article 18 and revised to read as:
"Where both parties to a case consent to the admission of any fact that falls under the circumstance specified in Paragraph 1 of Article 96 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, the people's court may order the parties to produce relevant evidence".
XX. Article 14 shall be revised as Article 19.
XXI. Articles 15, 16 and 17 shall be deleted.
XXII. Paragraph 2 of Article 19 shall be deleted, and Article 18 and Paragraph 1 of Article 19 shall be changed to Article 20 and revised to read as:
"To petition the people's court to investigate and collect evidence, the relevant party or the agent ad litem thereof shall submit a written application before the expiry of the time period for producing evidence.
The application shall clearly specify the basic details of the evidence concerned, such as the name of the person or entity to be investigated, his or its address, the name or content of the evidence to be investigated and collected, the reason why the evidence needs to be investigated and collected by the people's court, the facts in support of which the evidence is sought, and clear evidence".
XXIII. Article 20 shall be changed to Article 21 and revised to read as:
"Written evidence investigated and collected by the people's court may be original documentation or certified reproductions or photocopies thereof. In the case of a reproduction or photocopy, the source of the document or item and the manner in which it was collected shall be specified in the investigation notes".
XXIV. Article 21 shall be changed to Article 22 and revised to read as:
"Physical evidence investigated and collected by the people's court shall consist of the original items. In the event that it would be difficult for the person investigated to provide the original item, a reproduction or image data thereof may be provided instead. In the case of a reproduction or image data, the investigation notes shall specify the circumstances under which the evidence was obtained".
XXV. Article 22 shall be changed to Article 23 and revised to read as:
"The people's court that investigates and collects audiovisual materials and electronic data shall request that the person investigated provide the original recording of the relevant data.
Where it is difficult to provide the original recording, a copy may be provided. In the case of a copy, the people's court shall specify the source of the evidence and the production method used in the investigation notes.
Where the people's court adopts evidence preservation measures against the audiovisual materials or electronic data, the preceding paragraph shall apply".
XXVI. One article shall be added as Article 24 which reads as:
"When investigating and collecting evidence that may be subject to authentication, the people's court shall abide by the relevant technical specifications to ensure that the evidence is not contaminated".
XXVII. Article 23 shall be changed to Article 25 and revised to read as:
"Where any party or his interested party applies for a preservation order relating to evidence pursuant to Article 81 of the Civil Procedure Law, the application shall set forth the basic information of the evidence to be preserved, the reason for application for preservation and the preservation measures to be taken.
Any party who applies for a preservation order relating to evidence pursuant to Paragraph 1 of Article 81 of the Civil Procedure Law shall make the application before the expiry of the time period for producing evidence.
Where different provisions concerning the pre-trial preservation of evidence exist in other laws or judicial interpretations, such provisions shall prevail".
XXVIII.
......