Extraterritorial public documentary evidence under new provisions

By Zhang Guanglei, Chen Cheng, Jingtian & Gongcheng
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In October 2019, the Supreme People’s Court revised the Several Provisions on Evidence in Civil Proceedings (provisions), which took effect on May 1, 2020. The new provisions (article 16) no longer require all extraterritorial evidence to be notarised and legalised, but only provide for notarisation and legalisation of public documentary evidence and evidence involving a personal relationship.

Zhang-Guanglei,-partner,-Jingtian-&-Gongcheng
Zhang Guanglei
Partner
Jingtian & Gongcheng

Meanwhile, the new provisions make a distinction between these two types of extraterritorial evidence: only “notarisation” is required for public documentary evidence, while “notarisation and legalisation” are required for evidence involving a personal relationship. On the one hand, the new provisions no longer require notarisation and legalisation of private documentary evidence, while on the other hand, they simplify the requirements for public documentary evidence to notarisation without legalisation.

However, the new provisions do not provide a clear definition of “public documentary evidence”, which may bring confusion to the court and the parties, and increase uncertainty over evidence identification.

The Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, concluded in the Hague in 1961 (only applicable to Hong Kong and Macau, but not to other parts of China) provides that public documents include: (1) documents emanating from an authority or an official connected with the courts or tribunals of the state; (2) administrative documents; (3) notarial acts; and (4) official certificates that are placed on documents signed by persons in their private capacity.

Chen-Cheng,-associate,-Jingtian-&-Gongcheng
Chen Cheng
Associate
Jingtian & Gongcheng

Although not a member of the convention, China also recognises that public documents have the probative effect of presumption of truth, and makes special provisions for them in the Judicial Interpretation of the Civil Procedure Law and the provisions. Article 114 of the interpretation provides: “The matters recorded in the documents made by state authorities or other organisations with social management functions according to law, within the scope of their functions and powers are presumed to be true, unless there is evidence to the contrary sufficient to reverse them.”

Article 77 of the provisions (excluded from the new provisions) provides that: “The proving force of public documentary evidence produced by state authorities and social organisations according to their functions and powers is generally stronger than other documentary evidence.” Thus, under Chinese law, public documentary evidence should be construed as documents prepared by state authorities and social organisations with social management functions within the scope of their functions and powers.

Judging from the above-mentioned provisions, the scope of public documentary evidence should be relatively clear. However, by observing the judgments of Chinese courts after implementation of the new provisions, we find that Chinese courts have different understandings of extraterritorial public documentary evidence.

There is no dispute that documents made by extraterritorial public authorities under their functions and powers are public documentary evidence

In practice, there is no dispute in courts regarding this point. For example, in Case ([2019] Yue 0391 Min Chu No. 682), the defendant submitted a notice of confiscation and a letter of return of deposit issued by US Customs and Border Protection.

Qianhai Court held that these two documents were public documentary evidence under the new provisions, but they were not accepted because the defendant did not provide relevant notarised material. Similarly, in Case ([2020] Zhe Min Zhong No. 346), Zhejiang High People’s Court held that the award issued by US Customs, and the description and classification of commodities, were public documentary evidence under the new provisions, but rejected the evidence because the defendant had not gone through notarisation procedures.

There is dispute over whether documents made by extraterritorial private subjects are public documentary evidence

Documents made by private subjects are generally not recognised as public documentary evidence by courts. For example, in Case ([2020] Hu 73 Min Zhong No. 146), Shanghai Intellectual Property Court held that the contract submitted by the parties, and the copyright certificate issued by an American company, were not public documentary evidence.

In Case ([2020 Lu Min Zhong No. 1386), Shandong High People’s Court held that the medical records and medical expense invoices issued by a hospital in Indonesia were not public documentary evidence. In Case ([2020] Jin 01 Min Zhong No. 2886), Tianjin First Intermediate People’s Court held that contracts, letters and expense receipts formed in Greece were not public documentary evidence.

In the above-mentioned three cases, the courts held that the documents made by these private subjects were not public documentary evidence, and required no notarisation under article 16 of the new provisions, and recognised their authenticity.

However, in practice, there is also a view or tendency that the court identifies documents made by private subjects as public documentary evidence. For example, in Case ([2019 Xiang 03 Min Zhong No. 1138), Xiangtan Intermediate People’s Court held that the settlement contract signed by the parties in New Zealand had gone through the notarisation and legalisation procedure, and therefore recognised it.

In Case ([2020] E 01 Min Zhong No. 1575), Wuhan Intermediate People’s Court held that the bills incurred by the parties abroad were not notarised, and therefore rejected them. In Case ([2019] Su 0508 Min Chu No. 10103), the parties failed to provide notarised documents of foreign claim letter and foreign-related emails after being instructed by Suzhou Gusu District Court, so the court did not recognise them as public documentary evidence. In the above-mentioned cases, although the courts did not explicitly define the documents made by private subjects as public documentary evidence, the cited legal basis was article 16 of the new provisions, so the court probably construed these documents as public documentary evidence.

To sum up, the authors believe that it is still possible for courts to require notarisation and legalization of all extraterritorial evidence, regardless of the type of evidence. Therefore, the authors still suggest that parties try to notarise and legalise the extraterritorial evidence, so as to avoid the adverse consequences that the authenticity is not recognised because the form of evidence does not meet the requirements of courts.

If it is impossible to apply for notarisation and legalisation due to objective reasons (such as the covid-19 pandemic), the party concerned should fight for its point of view under the new provisions in the litigation, and make an appeal under the circumstances that the court makes misinterpretation and the new provisions apply.

Zhang Guanglei is a partner and Chen Cheng is an associate at Jingtian & Gongcheng. Zhang Guanglei is an arbitrator at Hong Kong International Arbitration Centre.

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