Evidence law in China (Fr)
Kenneth Weissberg, lawyer at the Paris Bar and French Foreign Trade Advisor
Ying Liu, Master in Law from the University of Xiamen, in China and Master in Business Law from the University of Paris Ouest Nanterre La Défense, in France.
Evidence plays an essential role in the proceedings. A right only exists when a rule of law recognizes it, and the procedure of this right authorizes the referral to a court competent to enforce this rule.
There is an important difference between the Chinese procedure and the Western procedures. The distribution of powers in China is not the same as in Western countries. The separation of legislative, executive and judicial powers, which we know in Western countries, does not exist in China, where the judicial power including that of the Prosecutor's Office, and the executive power depend on the legislative power.
The traditional system of Chinese procedure is inquisitorial: control of the trial is entrusted to the judge who plays an active role. In addition to the elements that the parties will submit to him, the judge may look for evidence himself in order to base his own opinion. However, with the entry into force of the 2008 Code of Civil Procedure, which was inspired by the adversarial system (the justice system which mainly relies on the skills and abilities of the parties' lawyers to defend their version of the facts. ), the admissibility of evidence has become an increasingly important issue.
The Chinese Civil Procedure Code promulgated on April 9, 1991 was amended on October 28, 2007, and came into force on April 1, 2008 (hereinafter referred to as CPCC). In its chapter 6, 12 articles relate to the proof.
The Chinese Criminal Procedure Code promulgated on March 17, 1996 entered into force on January 1, 1997 (hereinafter referred to as CPPC). The evidentiary provisions are in Chapter 5 and have 8 articles.
The Chinese Administrative Procedure Code promulgated on April 4, 1989 entered into force on October 1, 1990, its chapter 5 includes 6 articles concerning the evidence (hereinafter called CPAC).
All these provisions being very abstract and difficult to apply, the Supreme People's Court drew on the experience of the courts and was inspired by the systems of common law and civil law, to state “the provisions on certain problems in application of the Code of Civil Procedure1 ”which were published on December 6, 2001, and which came into force on April 1, 2002 (hereinafter referred to as“ 2002 Provisions ”). 2
The purpose of these provisions is to ensure the correct application of the law and to guarantee citizens the exercise of their powers.
The first part of this article will concern a general presentation of the legal regime of evidence in China, mainly in civil matters. The second part will consist in analyzing the particularities of evidence in administrative and criminal matters.
I. The general system of evidence in civil matters
A. The burden of proof
Like French law, the burden of proof in China rests with the parties who must prove the facts in support of their claim.
According to article 64 of the CPCC:
It is up to each party to prove the facts necessary for the success of its claim.
If for objective reasons the parties and their principals cannot collect the evidence themselves, when the court considers it necessary for the resolution of the dispute, it must investigate and gather the evidence.
The People's Court must investigate and verify the evidence objectively as a whole, in accordance with the procedure prescribed by law.
Article 65 of the CPCC specifies:
the court has the power to investigate legal and natural persons; data subjects have no right to refuse.
The parties have the obligation to prove the damage for which they claim compensation. In principle, the burden of proof rests on the claimant, since the claimant must prove it. Reciprocally, whoever claims to be released must justify the payment or the fact which produced the extinction of his obligation.
According to article 4 of the 2002 Provisions, it is the defendant who must then prove that the claim of the plaintiff is unfounded. Article 4 lists eight tort cases, for example with regard to an obligation to compensate for environmental pollution, the defendant has to prove that he benefits from an exemption provided for by law, the absence of the event giving rise to liability, or the absence of a causal link.
In French law, in civil matters, the judge is passive: the parties must provide proof of their claims and the judge must only assess their relevance. He cannot search for new ones himself, nor complete them. On the other hand, in Chinese law, the role of the judge is not passive. It is expressly stated in paragraph 2 of article 64 CPCC, that when the court considers that it is necessary for the resolution of the dispute, it must investigate and collect the evidence. Article 7 of the 2002 Provisions provides that, in the absence of a settlement, the court is responsible for determining the burden of proof in accordance with the principle of equality and the principle of honesty and loyalty.
At first, this rule posed a lot of problems, it often happened that the court replaced the parties and collected the evidence for them, which raised the question of the legality and the admissibility of the evidence that the court obtained by exceeding his powers. The law was silent on this issue. Fortunately, with the 2002 Provisions, this issue has been resolved; section 15 has limited to two cases in which the court can gather evidence:
- facts likely to harm the interest of the State, the general interest or the legitimate interest of others;
- the procedural reasons for the suspension of the trial, the cessation of the trial and the challenge.
Apart from these two cases, the court can collect evidence at the request of the parties, subject to state or professional secrecy.
B. Methods of proof
The new code of civil procedure defines the modes of proof in an exhaustive list in its article 63:
- Proof in writing
- Physical evidence
- Sound and audiovisual recording
- The testimony
- The testimony of the parties
- The expert report
- The judge's finding
- Proof in writing: literal proof or proof in writing results from a series of letters, characters, numbers, or any other signs or symbols with an intelligible meaning whatever their languages of origin, including the deed and the private deed.
- Material proof: it is the object itself which proves the legal facts by its figure, its weight, its specification or any other signs or symbols. Regarding litigation on the quality of constructions, the building that has been reconstructed constitutes physical evidence.
- Sound and audiovisual recording: it contains sound recording, video recording, data saved on computer. It is a new mode of evidence, most legal systems consider it traditional written evidence, but in Chinese law it is an independent mode of evidence. The test for the admissibility of evidence is set out in article 68 of the 2002 Provisions; evidence which has been obtained by means prejudicial to the legitimate rights and interests of others or contrary to law is inadmissible. Evidence consisting of a recording in a public place is admissible.
- The testimony: It consists on the part of a witness to come to declare in justice what he personally saw or heard.
The testimony of the parties knows two cases:
- the parties' explanation of the facts of a case,
- the admission of a party concerning the facts of a case denounced by the other party is admissible, it consists for a person to recognize a fact which is unfavorable to him. It must be emphasized, however, that admitting a fact does not mean consenting to the other party's claim.
The expert report:
expertise is a measure of technical or scientific investigation that a judge entrusts to an expert at the request of the parties. Its purpose is decision support. The request of an expert is both a right for the parties to the proceedings, and an obligation of the burden of proof. The parties have the right to oppose an expert report issued by the expert chosen by the court.
A report by the judge:
The investigation carried out by the judge on the place or on the objects of the litigation, either at the request of the parties, or on his own initiative.
II. Special features in administrative and criminal matters
A. In administrative matters
The Chinese Administrative Procedure Code promulgated on April 4, 1989 entered into force on October 1, 1990 (hereinafter CPAC which includes 75 articles in total), its main features are:
- In an administrative trial, the defendant is the administrative department and its officials.
- The claim of the claimant can only relate to concrete administrative behavior, that is to say unilateral behavior carried out by an administrative department towards a citizen, a legal person or all the other bodies determined during the exercise of its administrative powers. .
- Conciliation is not applicable in administrative matters.
The burden of proof in administrative matters lies with the administration (the defendant). The latter must demonstrate concrete administrative behavior within ten days of receipt of the request. On the other hand, the CPAC had not specified the cases of absence of proof on the part of the administrative department or the proof presented after the deadline of ten days without justified reason. The Supreme People's Court explained that in such a case, the concrete administrative behavior in question is considered to be devoid of just cause; this results in the failure of the administrative department. If for an objective reason or in case of force majeure, the defendant does not succeed in establishing the proof, he has the right to request an extension of ten days. During the trial, the defendant cannot collect the evidence of the plaintiff or the witness himself.
Although the FPCC has expressly stated that the burden of proof rests with the defendant, it does not exclude that, where applicable, the burden of proof may lie with the plaintiff. The applicant must then prove:
- That he has met the conditions of the charge.
- Concerning a case in which the defendant did not act, he did not fulfill his obligation to do. The onus is on the applicant to prove that they have made an application. A distinction must be made between the fact that he did not act and the fact that he made a negative decision. In the case of a negative decision, it is considered that the administrative department has already acted.
- As regards an obligation to make reparation, the claimant (the claimant) must prove the damage he suffered.
B. In criminal matters
The principles of evidence in criminal matters are different from those applicable in civil matters.
First, with regard to the distribution of the judicial power, which is defined in article 3 of the Code of Criminal Procedure, the judicial power is divided between the public security organs responsible for the preparatory investigation and the preventive detention. It has the power to take the initiative of public action, and it is responsible for the investigation of all other offenses under the direction of the prosecution; the court assumes the function of judging. Indeed, in the current Chinese system, the investigative bodies have considerable powers, they have the power to decide and execute any investigative measure such as search, seizure, surveillance of residence, liberty under bail, and police custody (except arrest and subsequent detention) without prior authorization from the prosecution or the court.
Next, a large part of the evidence provisions of the Code of Criminal Procedure concern the procedures for obtaining evidence. The other parts, which concern the provisions on the presentation of evidence, the communication of documents, the validity of evidence and the effectiveness of evidence are very difficult to apply directly in practice. This is the reason for the appearance of numerous provisions published by different authorities, for example "The provisions on certain problems in the application of the Code of Criminal Procedure" of January 19, 1998, jointly stated by the Supreme People's Court, the Prosecutor's Office People's Supreme, the Ministry of Public Security, the Ministry of State Security, the Ministry of Justice and the Commission responsible for the legal work of the Standing Committee of the National People's Assembly. These provisions are very numerous and lack coherence between them.
Finally, the appearance as a witness before a court consists on the part of a witness who comes to declare before the court at a hearing what he personally saw or heard, and to be questioned by the parties or his solicitors according to the procedure provided by law. However, this procedure does not work well in practice, and the presence of the witness is a great difficulty. Due to the lack of witness protection provisions, their attendance rate is extremely low; however, testimony is used extensively at the hearing. Article 157 of the Chinese Criminal Procedure Code states: "The testimony of an absent witness must be read aloud in court." As a result, the parties cannot question them and the judge is in a difficult situation to verify the sincerity of this testimony. The consequence is that the hearing remains very formal and loses much of its interest, the judge renders his judgment on the basis of the paper documents which are given to him.
In conclusion, not only in terms of evidence, but also in general, Chinese criminal procedure, even if it has evolved considerably in recent years and has seen much progress, still has a lot of progress to make in order to reach the degree of reliability of western countries.
1 Similarly in administrative and criminal matters,
Provisions on certain problems in the application of the code of administrative procedure of June 4, 2002, implemented on October 1, 2002.
Provisions on certain problems in the application of the code of criminal procedure of June 29, 1998, brought into force on September 8, 1998.
2 According to a decision concerning the repeal of the provisions published before the end of 2007 (7th) of the Supreme People's Court of December 8, 2008, articles 136, 205, 206, 240, 253,299 of the provisions of 2002 were deleted due to the modification in 2008 of the CPCC, the part concerning the evidence remains in force.