More Details on Discovery and Trials in China
In an earlier post, I interviewed Li Qishi about litigation in China. During our interview, I learned about China’s procedure for exchanging evidence at a hearing before trial and about its use of jurors in commercial disputes.
I was intrigued about these subjects, so I spoke to Ye Fang, a partner at Jingtian & Gongcheng in Beijing about his experience with commercial trials in China.
Why should you continue reading this post about commercial trials in China?
You are interested in learning more about the world’s largest country’s complex legal system
This blog’s first post about Chinese litigation left you in intolerable suspense
You have a trial that starts in a Chinese courtroom in fifteen minutes and you are scrambling to find information on the internet in English on what’s about to happen
Background
Tell me about your practice and the clients you represent.
I specialize in commercial dispute resolution, including litigations and arbitrations, both domestic and international. Most clients I represent are enterprises, including SoEs, private enterprises, and foreign enterprises, and they work in various industries.
Evidence Exchange
In your experience, do plaintiffs initiate lawsuits only when they already have enough evidence to win at trial? Or do they initiate lawsuits and then expect to get sufficient evidence later at the evidence exchange hearing?
Ye Fang is a partner at Jingtian & Gongcheng in Beijing. This interview has been lightly edited.
Unlike the U.S., there is no evidence discovery system in China. In principle, parties should bear the burden of proof for their claims/defenses and arguments in lawsuits. As a result, plaintiffs usually initiate lawsuits when they believe they have enough evidence to win.
That said, the Civil Procedure Law and its judicial interpretations issued by the Supreme People’s Court (often called the “SPC”) provide that the parties are entitled to apply to the court to investigate and collect evidence which the parties “cannot collect due to objective reasons.”
According to the law, requests for evidence must be made in writing and include the following information:
Basic information of the person or enterprise to be investigated, including their name and address;
The name or contents of the evidence;
The reason why it is necessary for the court to investigate and collect evidence;
Facts to be established by the evidence;
Specific clues for such evidence (which I understand to mean where the evidence is probably located, or who probably possesses or controls the evidence).
As a result, the quantity of the evidence that the parties get through such procedure depends on what it requests, whether it can provide specific clues about such evidence, and whether the court could collect all the evidence that it requests in accordance with such clues.
For example, last year I represented a client in a court application to set aside an arbitration award. In the proceeding, I made a request to the court to collect all the hearing records of the arbitration case from the arbitration commission. The court granted the request.
In practice, the plaintiffs usually will not rely on this procedure in the lawsuits because whether the court will grant the plaintiffs’ applications and how the court will investigate and collect evidence is largely subject to the court’s discretion.
How does the evidence exchange hearing work? Do lawyers need to identify specific documents that they want from their adversary? Or can they ask for all documents that concern various subjects?
The evidence exchange hearing works in a fairly simple way. Basically, it may be divided into two stages: evidence submitting and evidence cross-examining.
In the first stage, the parties will state the name and the purpose of the evidence that it submitted, then the other party will state its cross-examining opinions accordingly. Normally the cross-examining opinions should center around the authenticity, relevance, legality and purpose of the counter-party’s evidence.
To be clear, normally lawyers do not “ask for” documents that are not in their possession. They should collect their own evidence and submit to court and the counter-party prior to or in the evidence exchange hearing.
In your experience, how many documents do you normally get from an adversary during the evidence exchange?
Normally we do not get any documents from adversary during the procedure.
Do litigants in China normally produce their internal emails as evidence during the evidence exchange hearing?
Yes. Emails are often used as evidence in China, especially in commercial disputes between enterprises.
Are communications between lawyers and clients protected from disclosure during the evidence exchange?
Because there is actually no “disclosure” in litigations in China, lawyers rarely encounter such issues in China.
Do you use any special software to store or exchange evidence?
No.
When you examine witnesses, do the lawyers ask most of the questions or does the judge?
It depends on various factors, including the personality and style of the judge, the merits of the case and the relevance or importance of the testimonies of the witnesses.
Do the jurors ask questions?
Basically no. The jurors rarely speak during the whole hearing.
Are you able to ask a judge in a commercial case to issue an order at the very start of the case?
Generally, the answer is yes. In accordance with the Civil Procedure Law, the parties may apply to the court to make the following three kinds of “preservation orders” at the beginning of a case, or even before the case is officially initiated:
Property or asset preservation orders – This type of application is intended to “secure” the enforcement of a future judgment. The parties may file such an application to the court at the very beginning of the case, or even before the case is initiated if there is an emergency. In practice, most courts tend to not grant these applications before a case is initiated, except when there is very solid evidence showing that the absence of such preservation would probably jeopardize the enforcement of the future judgment.
Behavior preservation orders – These are similar to property preservation orders. Parties may apply to the court to order a counter-party to make or not to make certain behaviors. I understand that these orders are to some extent similar to injunctions or restraining orders in the U.S.
Evidence preservation orders – If certain evidence may become extinguished or difficult to collect in future, parties may apply to the court for one of these orders to preserve the evidence.
In practice, the court will request the applicant to provide a financial guarantee to the counter-party before it grants such applications, so the counter-party can be compensated for the disruption to their property rights.