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 this, and that the procedure of this law authorizes the referral of a
jurisdiction to enforce this rule.

There is an important difference between the Chinese procedure and the procedures
western. The distribution of powers in China is not the same as in the countries
westerners. The separation of legislative, executive and judicial powers, which we
known in western countries, does not exist in China, where the judiciary
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 Court
Suprême Populaire was based on the experience of the courts and was inspired by
common law and civil law systems, to set out “the provisions on certain
problems in the application of the code of civil procedure1 ”which were published on 6
December 2001, and effective 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 exercise 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 cases
tort, for example with regard to an obligation to make reparation in matters of
environmental pollution, the onus is on the defendant to prove that he benefits from a
exemption provided 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 the
evidence of their claims and the judge must only assess their relevance. He ... not
can search for new ones itself, or supplement them. However, under 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 it necessary for the resolution of the
litigation, he must investigate and gather 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
of 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:

1. facts likely to harm the interest of the State, the general interest or
   the legitimate interests of others;

2. procedural reasons for the suspension of the trial, the cessation
   of the trial and recusal.

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 a list
limiting in its article 63:

1. Proof in writing
2. Physical evidence
3. Sound and audiovisual recording
4. The testimony
5. The testimony of the parties
6. The expert report
7. The judge's finding

1. 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.
2. 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.
3. 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.
4. 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:

1. In an administrative trial, the defendant is the administrative department and its officials.
2. 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. .
3. 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:

1. That he has met the conditions of the charge.
2. 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.
3. 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.

The new Chinese Penal Code which came into force on October 1, 1997 was revised on February 28
2009 by amendment VII, and the Chinese Criminal Procedure Code promulgated on March 17
1996 entered into force on January 1, 1997. The general provisions of these Codes
specify that the aim is to ensure accuracy in establishing the facts complained of,
the proper application of the law, the punishment of criminals and the protection of persons
innocent in order to safeguard the socialist legal system and guarantee citizens the
protection of human rights, property rights, democratic rights and others
rights, and to ensure public economic and social security and the development of the cause
socialist..

Chinese criminal law applies to offenses committed on the national territory and to
certain offenses committed abroad. The extent of extraterritorial jurisdiction is
determined by the nationality of the offender and the nature of the offense.

In matters of counterfeiting and falsification of money or negotiable securities, corruption, violation of state secrets, use of the false status of civil servant, nationals are always punishable when the acts are committed abroad.

Apart from these cases, nationals can also be prosecuted for acts perpetrated abroad, however they could benefit from an exemption when the maximum penalty provided by Chinese law is less than a sentence of three years of imprisonment.

The Chinese Penal Code only applies to offenses committed by foreigners outside Chinese territory when the alleged acts have harmed the Republic or Chinese nationals, that they are punished by the law of the place of commission, and that the minimum sentence under Chinese law is three years' imprisonment.

Where criminal law has extraterritorial application, national courts have
jurisdiction even when the facts have been tried by a foreign court. But if the trouble
pronounced was executed abroad, Chinese courts have the power either to reduce the
penalty incurred either to pronounce an exemption from penalty.

With regard to the application of criminal law over time, art. 12 of the Criminal Code
enshrines the principle of non-retroactivity of the new law by requiring that the actions
the accused are punished only on condition of being incriminated by the law applicable at the time of the
facts. This principle is mitigated, as in most modern legal systems, by the
retroactivity in mitius which allows any accused to benefit as of right from the application of
provisions of the new sweeter law.

The constituent elements of the offense in Chinese Law are the same as in French Law. We find the requirement of a legal element, a material element and an intentional element.

The intentional element is of great importance in Chinese criminal law because it determines the classification of offenses. Instead of the tripartite classification of French law, only two categories of offenses are known in Chinese law; on the one hand, intentional offenses and on the other hand, unintentional offenses.

Minor offenses equivalent to contraventions according to the French classification, are qualified as “administrative” offenses and do not fall under the jurisdiction of the Courts.

This summary presentation of the Chinese system will be limited to the description of the main
characteristics of Criminal Law and important elements of the applicable procedure.

I. - The main characteristics of Chinese criminal law

Chinese Criminal Law is based on a particular conception of the concept of public order and on
a classic responsibility system.

A. - The concept of public order

1. - In general criminal law

In China the concept of public policy covers both public policy as it is conceived by the
most western countries, and the protection of socialist ideology.

Public order in the traditional sense of the term is protected in China by several categories of offenses including offenses against the personal and democratic rights of citizens, offenses against public security, crimes against property, offenses against public order . Certain acts of civil liability in France are penalized because of the importance accorded to them in Chinese tradition.

This is the case, for example, of cohabitation with the wife of a military member on duty or even the failure to assist needy or sick parents.

There is no provision in the Code that penalizes political crimes or crimes of opinion.

But the protection of the socialist ideology is ensured by the criminalization of acts which threaten the security of the State.

As such, all actions aimed at overthrowing the socialist regime and those which undermine the sovereignty, territorial integrity and security of the People's Republic of China are punished. Articles 102 to 113 of the Penal Code list these acts in a nonlimiting manner, among which are: incitement to desertion, espionage and incitement of the masses to revolt.

2. - In criminal business law

Chinese Penal Code Punishes Various Actions for the Protection of Public Order
socialist economy. Among these acts, we find financial fraud, fraud
tax and customs, smuggling and violation of intellectual property rights and
industrial.

Certain perfectly legal economic activities in most modern legal systems can be seen as undermining the socialist economic order.

In 1988, a television import contract, concluded between a French company and a subsidiary of the Chinese ministry of aeronautics apparently competent in the matter, was regarded as a vast fraud damaging the economy of the country.

The commercial agent employed by the French company, who had received a commission and received a large security deposit on behalf of his employer, was imprisoned for smuggling and embezzlement.

He was facing capital punishment because, being of Chinese nationality, he could not benefit from the preferential treatment reserved for expatriates. The Chinese authorities who participated in the signing of the contract were dismissed from their posts and also imprisoned for smuggling. The French company was not worried, and the commercial transaction was not called into question towards him.

B. - The repressive system

Criminal responsibility and the sanctions imposed depend on the personality of the
offender and the seriousness of the facts.

1. - Criminal responsibility

In China, the criminal majority is fixed at 16 years.

However, minors under the age of 14 are punishable for certain offenses considered as seriously undermining public order, such as intentional homicide, serious injury, rape and drug trafficking, etc.

The penalties incurred are then lower than those provided by law. The deaf-mute and blind also benefit from this reduction.

As in most legal systems, the mentally ill who have not had
awareness of the scope of their actions is criminally irresponsible.

Likewise, force majeure and self-defense are exempt from liability.

In any event, art. 3 of the Penal Code provides that unintentional offenses do not
are punishable only in cases provided by law.

Most unintentional offenses are punished, but the penalties are much less.

For example, in the case of intentional homicide, the penalty incurred is death, life imprisonment or imprisonment which cannot be less than 10 years. If extenuating circumstances are accepted, the penalty ranges from 10 years' imprisonment to 3 years (article 232 of the penal code). On the other hand when the homicide is involuntary the penalty goes from 3 to 7 years of imprisonment. If extenuating circumstances are

retained, the penalty ranges from 3 years to 6 months of imprisonment (article 233 and 45 of the Penal Code)
For any offense, the accused can benefit from extenuating circumstances, the main cause
mitigation or even exemption from punishment in the case of a minor offense being surrender
voluntary.

2 - Criminal sanctions

The Chinese Penal Code provides for five main and three accessory penalties.

The main penalties are as follows:
(i) being placed under surveillance for three months to two years, a non-custodial sentence which obliges the convicted person to submit reports on his activities and
obtain authorization for all travel;
(ii) detention from one month to 6 months, which takes place in a detention house where the convicted person is gainfully employed;
(iii) imprisonment from 6 months to 15 years;
(iv) life imprisonment;
(v) the death penalty which has been incurred since 1982 for economic offenses.
It can be suspended for two years, during which time the offender benefits from “reformation through work” and can, if he commits no other voluntary crime, obtain that his sentence be commuted to one life sentence or term of 15 to 20 years.

The People's Courts may, on an ancillary basis, pronounce either a fine or the deprivation of political rights for a period of one to five years, or even the total or partial confiscation of property.

II. - Criminal proceedings

The judicial power is distributed by art. 3 of the Code of Criminal Procedure between the organs of
public security responsible for the preparatory investigation and preventive detention, the
public prosecutor's offices which approve the arrest, control its legality and implement
public action, and the Courts. We will only discuss the provisions relating to
arrest and detention and the guidelines for the trial.

A. - Arrangements for arrest and detention.

The public security organ wishing to make an arrest must obtain authorization from the Court or the Prosecutor's Office.

In case of refusal, he can request a review.

It is also the only power it has when the prosecution refuses to initiate criminal proceedings following a preliminary investigation.

In an emergency, the public security organ can detain people caught in the act or suspected of serious crimes, without having been authorized to do so.

In this case, he must inform the prosecution within three days and if the latter does not authorize the arrest, within three days, the detained person must be immediately released.

Detention during the preliminary inquiry cannot exceed two months. If the investigation cannot
be closed at the end of this period, the Public Prosecutor's Office may grant an additional period of one month.

This was the case in the above-mentioned import contract case.

The commercial agent was detained for 12 months without any charges being brought by the People's Court. A first indictment for embezzlement was transmitted to the Court after 4 months of detention. After the Tribunal dismissed it for insufficient evidence, a new charge was brought 3 months later.

Despite the dismissal of this second charge, only a release "under medical care guarantee" was obtained 5 months later. This release was made possible due to the acquisition of French nationality by the detainee in his capacity as spouse of a French national.

B - The guiding principles of the trial.

All accused must be notified of the indictment no later than ten days before the date of the hearing.

The right to defense is affirmed by the Code of Criminal Procedure, moreover the law of 2001 and 2008 concerning the exercise of the legal profession reaffirmed and strengthened the rights of lawyers in criminal procedure to ensure the criminal defense of their customer.

The criminal proceedings are adversarial, the debate taking place between the accused, the prosecutor and
possibly the civil party. Usual modes of evidence are recognized and the accused's confession
alone does not have probative value. Magnetic recordings, which are widely used
common in China, have probative value even when done without the knowledge of
the contact.

The presumption of innocence is not recognized by the Code of Criminal Procedure. The defender
of the accused has the power to provide evidence in order to have his innocence recognized.
In practice, counsel for the accused are often appointed by the Tribunal. They have for
mission to encourage their "client" to recognize the facts in order to facilitate the manifestation of
truth and benefit from the indulgence of judges.

In any event, when the judges deliberate at a sitting, they have the obligation to
communicate the judgment to the parties within five days. However, when the decision is
referred to a later hearing, copies of judgment to be issued to parties
straight session. The time limit for appeal starts only from the reception of the judgment.

Conclusion

Notwithstanding the relative independence of judges vis-à-vis the Prosecutor's Office, experience has shown that in matters of economic crimes, it is difficult for the accused to establish their good faith.

It is therefore strongly recommended that Western companies handling cases involving considerable sums of money ensure the legality of the transactions envisaged, especially when they use national intermediaries.

Legal consultation from one of the major Chinese business firms in the market is therefore an imperative requirement, prior to the conclusion of any agreement.

For the past ten years we have witnessed an important debate on offenses relating to state security, criminal business law, capital punishment and the rights of the accused in criminal proceedings, all these debates have had certain positive consequences for criminal law legislation.

It is therefore important to note that Chinese criminal law has evolved considerably and has seen a lot of progress, one can only hope that it will meet both the requirements of China's social development and those of international trade.