China - Litigation In Mainland China Under New Evidence Rules: Your 50 Questions – Part 4.

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25 May 2020

 

Introduction
 

The Supreme Court of People’s Republic of China (SPC) formally promulgated the amended version of Several Provisions of the SPC on Evidence for Civil Litigation (New Evidence Rules) on 25 December 2019, which came into effect on 1 May 2020.

 

There are many highlights in the New Evidence Rules. To provide readers with some guidance from a practitioner’s perspective, we have prepared 50 questions which are divided into five sections: overall picture, routes for evidence production, witness testimony, judicial expert opinion and electronic evidence and others. Section one was published on 1 May and can be found here. Section two was published on 8 May and can be found here.  Section three was published on 15 May and can be found here.

This blog post focuses on the fourth section, i.e., judicial expert opinion.

 

Section 4: Judicial Expert Opinion

 

  1. Can I have my own expert?

  2. Is there any difference between my own expert and a judicial expert?

  3. How may a judicial appraisal be initiated?

  4. How will a judicial expert be appointed?

  5. Do I need to pay to an appointed judicial expert?

  6. Do I need to enter into a contract with an appointed judicial expert?

  7. Are there any qualification requirements on judicial experts?

  8. What is the process of a judicial appraisal?

  9. If I disagree with the conclusions made a judicial expert, what shall I do?

  10. Are there any legal consequences if a judicial expert refused to attend hearing or withdraws its expert opinion?

 

31.  Can I have my own expert?

 

Yes, a party may appoint an expert prior to and during litigation. Particularly, a party may appoint an expert adviser to assist him in cross-examining a judicial expert during a hearing.

 

32.  Is there any difference between my own expert and a judicial expert?

 

A party’s expert is different from a judicial expert. A judicial expert is appointed only by the court to carry out a judicial appraisal during litigation. As a result, judicial expert opinion as a prescribed type of evidence under the CPL is different from the opinion by an expert appointed by any of the parties involved.

 

33.  How may a judicial appraisal be initiated?

 

The use of judicial expert opinion is strictly controlled and may be initiated only by the court.  There are two ways to trigger this initiation. One is where a party makes an application for judicial appraisal within the time period as directed by the court. The other is where the court may initiate it ex officio.

 

34.  How will a judicial expert be appointed?

 

If the court approves the party’s application, the court may request for the parties to convene to select a judicial expert and in the event the parties are unable to reach an agreement on the selection, the court may appoint one. If the court directs judicial appraisal ex officio, the court may designate a judicial expert after consulting the parties’ suggestions.

 

The court is required to establish a panel of experts which lists experts in various fields. The regular practice is to select from the panel by randomly drawing a name in the related field.

 

35.  Do I need to pay to an appointed judicial expert?

 

If a party applies for judicial appraisal, that party shall pay the expert fees in advance. There are no clear rules on payment if the court initiates judicial appraisal ex officio. In practice, either the court may ask both sides to pay equally or the court may pay. The losing party may be ruled to bear all or most of the expert fees in the final judgment.

 

36.  Do I need to enter into a contract with an appointed judicial expert?

 

Upon appointment of a judicial expert, the court shall issue an entrusting letter to the judicial expert outlining the issues to be covered or specific questions to be addressed, purpose of the appraisal and time limit of submission. If the judicial expert accepts the entrustment, an entrusting contract would be concluded between the judicial expert and the court.

 

37.  Are there any qualification requirements for the judicial experts?

 

Judicial experts listed are to be experienced and have the necessary qualifications in their respective fields, namely practice certificates from the relevant authorities or industry associations. There are various categories of judicial experts like forensic clinical expert, forensic pathology expert, trace toxicant expert, trace documentary evidence expert, quantum expert, construction engineers, intellectual property expert and traffic accident identification expert, etc.

 

38.  What is the process of a judicial appraisal?

 

The judicial expert shall first sign an undertaking letter declaring that the judicial expert shall act in an objective, impartial and honest manner, attend the hearing if called and assume legal liability for false appraisal.

The court shall call the parties to test the admissibility of the materials to be submitted for appraisal. Without any testing or assessment, no material shall be used as basis for an appraisal. Additionally, the judicial expert may collect evidence, inspect physical evidence and site(s), and question parties and witnesses, if necessary, with the court’s permission.

 

The judicial expert opinion shall be submitted within the time limit as set by the court. It shall include the name of the entrusting court, scope of service, the entrusting letter, materials relied on, principles and methods adopted, description of the process, appraisal opinion and undertaking.

 

39.  If I disagree with the conclusions made a judicial expert, what shall I do?

 

A party may raise objections to the expert opinion in writing within the time limit given by the court. The court may forward the objections to the judicial expert for explanation and supplemental opinion. Should the party still have opposing comments after receiving the judicial expert’s written reply, the court shall require the judicial expert to attend the hearing and notify the opposing party to pay in advance the relevant costs for such attendance. Such costs will be borne by the losing party in the judgment.

The court may also direct the judicial expert to attend the hearing if it finds the expert opinion not sufficiently explicit or has any flaws. In this case, the judicial expert shall pay its own costs so incurred.

 

During the hearing, the parties may cross-examine the judicial expert with the permission of the court. The court may question both the judicial expert and the parties’ expert advisers from time to time. If the court deems it necessary, the parties’ expert advisers may be required to cross-examine each other on certain issues.

 

40.  Are there any legal consequences if a judicial expert refused to attend hearing or withdraws its expert opinion?

 

The New Evidence Rules particularly added some important guiding rules on the behavior of judicial experts. If a judicial expert refuses to testify orally, the judicial expert opinion shall not be treated as basis to ascertain facts in issue and the court may advise related authorities or industry associations to impose administrative penalties on the judicial expert.

 

In addition, once the judicial expert opinion is adopted by the court, the judicial expert is not allowed to withdraw said opinion without justified reasons. Otherwise the expert shall refund any payments received, face punishment by the court and reasonably compensate the parties’ costs so incurred.

 

Stay tuned for next week’s blog post which will focus on the fifth (and last) section, electronic evidence and others.

 

herbert smith Freehills

 

For further information, please contact:

 

Helen Tang, Partner, Herbert Smith Freehills

helen.tang@hsf.com