Litigation In Mainland China Under New Evidence Rules: Your 50 Questions – Part 5.
Legal News & Analysis - Asia Pacific - China - Regulatory & Compliance - Dispute Resolution
3 June 2020
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 prepared 50 questions divided into five sections: (i) overall picture, (ii) routes for evidence production, (iii) witness testimony, (iv) judicial expert opinion and (v) 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.
Section four was published on 22 May and can be found here. This blog post focuses on the fifth and last section, i.e., electronic evidence and others.
Section V Electronic Evidence and Others
What is scope of electronic evidence?
How may I present electronic evidence at a hearing?
What are the factors the court may consider when assessing the veracity of electronic evidence?
How may the court assess the veracity of electronic evidence?
Are there any circumstances the court may deem electronic evidence inadmissible?
Are there any circumstances where I am required to provide collaborative evidence in aid of a single item of evidence to prove a fact?
Can I submit new evidence at the appeal stage?
Will the court provide the reasoning for its assessment of evidence in a judgement?
Will the New Evidence Rules only apply to litigations commenced after the effective date?
If a rule in the New Evidence Rules conflicts with a previous rule in the 2015 Judicial Interpretation, which rule shall I follow?
41. What is scope of electronic evidence?
The New Evidence Rules classifies electronic data into several categories to address the difficulty of applying the general definition of electronic data prescribed in the 2015 Judicial Interpretation to practice.
Electronic data includes (i) information posted on online platforms like webpages, blogs, microblogs; (ii) communication information via network services like text messages, emails, instant messages and communication groups; (iii) information about records like user registration, identity recognition, electronic transaction, communication records, login logs; (iv) files stored in electronic equipment, including documents, pictures, audio, video, digital certificates and computer programs; and (v) other information stored or processed or delivered in the form of electronic data which may prove a fact. Note that provision (v) is a miscellaneous provision intended to adapt to further developments in technology.
42. How may I present electronic evidence at a hearing?
In general, a party is required to submit the originals of any electronic evidence which may include storage mediums. However, when testing electronic evidence at a hearing or in an evidence exchange meeting, the court may allow flexible ways to present electronic evidence.
A party may present electronic evidence by utilising various multimedia devices according to different types of evidence or in the form of documentary copy with relevant statements on the source of such evidence. For emails, the party needs to provide information about source of a particular email including its sender, receiver and email provider, relationship with the sender and receiver, sending and receiving time and contents. If the other party does not object to its source, the party may then present a copy of the email to test its admissibility. In practice, a party may have email evidence and similar evidence such as webpages notarised before a notary public and then present the notarised copy as evidence to avoid the other party’s objection to source.
For text messages in mobile phones, the party adducing them as evidence needs to show the text messages with the mobile phones and further provide a statement on the contents, sender and receiver, sending and receiving times and storage location.
43. What are the factors the court may consider when assessing the veracity of electronic evidence?
The core issue in practice when assessing electronic evidence is the assessment of its veracity. The New Evidence Rules included a new Article 93 and provided several factors for the court to consider when examining the veracity of electronic evidence.
These factors include (i) the integrity and reliability of the computer system for producing, storing and transmitting electronic data, including its hardware and software (Computer System); (ii) the operation status of the Computer System or any impact on the production, storage and transmission of electronic data if the Computer System was not in normal operation; (iii) the effectiveness of monitoring and verifying measures in the Computer System to correct or avoid errors; (iv) whether the electronic data is stored, transmitted and withdrawn as a whole; or whether the method of storing, transmitting and withdrawing electronic data is reliable; (v) whether the electronic data is produced and stored in normal course of business or transaction; (vi) the eligibility of the persons or entities who store transmit and withdraw the electronic data; and (vii) other factors which may affect the integrity and reliability of the electronic data.
44. How may the court assess the veracity of electronic evidence?
The court may test factors in question 43 by (i) comparing copy of electronic data with the original available in the storage medium; (ii) checking the statement of the party who produced the electronic data; (iii) checking whether the process and procedure of collecting electronic data complies with prevailing laws; and (iv) checking if there is any possibility of amending, adding or forging contents, etc. Apparently, it is difficult for court to determine veracity merely by these means for technical reasons.
In practice, in addition to the abovementioned methods, the court may consider the electronic evidence as a whole with other admissible evidence and a party’s statement when testing the veracity of electronic data. If necessary, the court may also initiate an inspection or judicial appraisal to aid in verifying electronic data.
45. Are there any circumstances the court may deem electronic evidence inadmissible?
Yes. The court may deem electronic evidence true and admissible unless sufficiently rebutted by evidence to the contrary, in circumstances where (i) a party submits or controls electronic data against its interests; (ii) the electronic data is provided or confirmed by a neutral third-party platform which records and stores such data like Alibaba, Amazon or JD; (iii) the electronic data is produced in daily and normal process of business or transaction like electronic bank statement and electronic invoice; (iv) the electronic data is kept in an archive management system like the incorporation information of a company at National Enterprise Credit Information Publicity System; or (v) the electronic data is stored, transmitted and withdrawn via agreed methods by parties.
46. Are there any circumstances where I am required to provide collaborative evidence in aid of a single item of evidence to prove a fact?
Yes. Certain evidence requires collaborative evidence to strengthen its evidential value when proving a fact and the court may not ascertain a fact by merely relying on that evidence alone. The New Evidence Rules reiterates most of old rules in this aspect.
The scope of this type of evidence includes (i) parties’ statements; (ii) witness statements by persons with no or limited capacity, which are not proportionate to their age, intelligence or mental health; (iii) witness statements by witnesses, who have conflicting interests with a party or its attorney; (iv) doubtful audio-visual evidence and electronic evidence; or (v) the copy of a particular piece of evidence could not be verified by an original.
Note there is no requirement on the volumes or types of collaborative evidence. However, a party bearing the burden of proof should satisfy the evidential standard i.e., proving a fact on a balance of probabilities.
47. Can I submit new evidence at the appeal stage?
Yes. A party may provide “new evidence” at the second instance or appeal stage. Under the old Evidence Rules, “new evidence” in the second instance means (i) evidence discovered after the close of trial in the first instance, or (ii) evidence which the second instance court holds that the first instance court should have investigated and collected upon a party’s application within the stipulated time period.
Note that the New Evidence Rules has deleted the definition of “new evidence”. The SPC explained that this intentional deletion means that there is no limit to the scope of “new evidence” as long as such evidence has not been submitted any the previous procedures. Though there are severe legal penalties for the late submission of evidence, the court generally seems tolerant in accepting the late submission of evidence as long as such evidence is relevant to the basic facts of the case. We consider that without any limitation on the scope of “new evidence”, it is possible the whole litigation process may be delayed for the lack of strict adherence to the time limit for evidence submission.
48. Will the court provide the reasoning for its assessment of evidence in a judgment?
Yes. The court is required to state the reasons for its ruling on admissibility of evidence, except for evidence on which both parties do not have any disputes.
49. Will the New Evidence Rules only apply to litigations commenced after the effective date?
The New Evidence Rules took effect on 1 May 2020. From the effective date, all ongoing litigations and new cases shall follow and comply with the New Evidence Rules.
50. If the New Evidence Rules conflict with a previous rule in the 2015 Judicial Interpretation, which rule shall I follow?
As mentioned in our introductory paragraph, the New Evidence Rules together with Chapter VI of the CPL and Chapter IV of the 2015 Judicial Interpretation have now covered most evidential rules which constitute a major part of litigation practice. Both the New Evidence Rules and the 2015 Judicial Interpretation are subject to and may be limited by the provisions in the CPL. Between these two, if there are conflicting rules on any matter, the New Evidence Rules shall prevail over the 2015 Judicial Interpretation. However, there are some rules in the 2015 Judicial Interpretation that the New Evidence Rules do not include, e.g. allocation of evidential burden. In this regard, the 2015 Judicial Interpretation shall apply.
For further information, please contact:
Helen Tang, Partner, Herbert Smith Freehills