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Thus Spoke Chinese Judges on Taking of Evidence Abroad: Insights from Chinese Supreme Court Justices on 2023 Civil Procedure Law Amendment (3)

Tue, 26 Mar 2024
Categories: Insights
Contributors: Meng Yu 余萌

Key Takeaways:

  • The 2023 CPL's systematic framework for taking of evidence abroad reflects proactive measures by Chinese courts to tackle enduring obstacles in civil and commercial litigation, ultimately streamlining legal proceedings and improving efficiency.
  • The Fifth Amendment allows for innovative methods like using instant messaging devices for evidence collection, with consent from both parties, demonstrating a forward-looking approach to adapting legal procedures to modern technological advancements.

On 1 Sept. 2023, the Fifth Amendment to the PRC Civil Procedure Law (the ‘2023 CPL’) was adopted by China’s top legislature, the National People’s Congress’s Standing Committee. The 2023 CPL has made significant modifications to international civil procedures. Among others, major changes can be found in rules on international civil jurisdiction, recognition and enforcement of foreign judgments, and cross-border service of process.

We have provided a Pocket Guide to acquaint CJO readers with these salient developments in the 2023 CPL.

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In December 2023, Judge Shen Hongyu and Judge Guo Zaiyu from the Fourth Civil Division of China’s Supreme People’s Court(SPC) published an article “Commentary and Interpretation of the Revised Provisions of the Foreign-Related Part of the Civil Procedure Law” (《民事诉讼法》涉外编修改条款之述评与解读) in “China Law Review”(中国法律评论)(No. 6, 2023), sharing their insights on the developments in the 2023 CPL.

The purpose of this series is to present the views of the SPC Judges, Judge Shen and Judge Guo, on certain key aspects, including rules on international civil jurisdiction, rules on cross-border service of process and taking evidence, and rules on recognition and enforcement of foreign judgments.

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Over the years, there has been only one principled guideline in the CPL regarding the taking of evidence abroad, namely: “Pursuant to international treaties concluded or acceded to by the People’s Republic of China or in accordance with the principle of reciprocity, people’s courts and foreign courts may request mutual assistance in the service of legal documents, investigation, collection of evidence, and other acts in connection with litigation, on each other’s behalf.” (Art. 283.1 of 2021 CPL). This principled provision does not establish a systematic framework for the taking of evidence abroad and fails to meet the needs of judicial practice in this regard.

Similar to the “difficulty in service of process”, the “difficulty in taking of evidence” has always been a bottleneck preventing Chinese courts from improving the efficiency of civil and commercial litigation.

To overcome this bottleneck, the 2023 CPL introduces the system of investigating and taking evidence abroad, specifying the methods of investigating and taking evidence abroad.

First, it clarifies that the people’s courts may, upon the application of the parties, investigate and take evidence outside the territory of China through international conventions or bilateral treaties concluded or acceded to by China, or through diplomatic channels.

Taking the “Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters” (the “Hague Evidence Convention”) as an example, the methods of taking evidence prescribed therein include letters of request and the taking of evidence by diplomatic officers, consular agents, and commissioners. The letters of request method is the primary channel for the taking of evidence, in which the judicial authority (‘Central Authority) of one Contracting State may request the competent authority of another Contracting State, by means of a letter of request, to obtain evidence, or to perform some other judicial act.

When China acceded to the “Hague Evidence Convention” in 1997, it made reservations regarding the taking of evidence by diplomatic officers, consular agents, and commissioners, only accepting the provisions of Article 15. This means that only foreign diplomatic officers and consular agents may take the evidence without compulsion of nationals of the State which they represent, and China does not accept the taking of evidence by foreign diplomatic officers and consular agents from China’s own nationals or those of a third country, or the taking of evidence by commissioners.

Second, it stipulates that the people’s courts may use the following methods to take evidence abroad, provided that it is not forbidden by the law of the country where the evidence is taken:

(1) Entrusting the Chinese embassy or consulate in the country where the parties or witnesses are located to take evidence for parties or witnesses of Chinese nationality.

It should be noted that most countries grant diplomatic officers and consular agents the power to obtain evidence from their nationals in the country where they are stationed based on treaties or reciprocity, but some countries do not allow such power. Therefore, it shall be determined in accordance with the law of the country where the parties or witnesses are located.

(2) Investigating and taking evidence through instant messaging devices or other methods with the consent of both parties.

There are opinions holding that as the taking of evidence via videos is more sensitive and can be covered by the “with the consent of both parties” method, such provisions may be omitted.

Through research, the SPC has made useful exploration into issues on Internet justice through judicial interpretations, and may set out principled provisions on such issues through legislation.

Therefore, Art. 284, para. 2 of the amended CPL, in subparagraphs 2 and 3, provides for the taking of evidence by means of instant messaging tools with the consent of the parties, and by other means with the consent of the parties, provided that they do not violate the prohibitions of the law of the country in which they are located. Among them, subparagraph 3 is an open-ended provision, leaving room for more methods of taking evidence in the future while respecting the party autonomy.

 

 

Photo by Qingbao Meng on Unsplash

Contributors: Meng Yu 余萌

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Thus Spoke Chinese Judges on Cross-border Service of Process: Insights from Chinese Supreme Court Justices on 2023 Civil Procedure Law Amendment (2)

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