In the practice of commercial litigation, difficult cases usually involve greater professionalism and technicality. It is difficult to distinguish right from wrong, and there are even gaps in the application of legal rules. The systematic and dialectical thinking of evidence is particularly important. This article combines judicial practice to provide a reference for parties to submit practical, efficient and rigorous evidence in relevant cases.
Senior partner
Kangda Law Firm
Q: How are difficult cases defined?
A: In the relevant judicial interpretations, the Supreme People’s Court (SPC) has defined “major and complicated cases”, usually based on “jurisdiction”. For example, the major and complicated cases under the jurisdiction of the Intermediate People’s Courts are: (1) cases where the defendant is a people’s government at, or above, the county level, and is not suitable to be tried by basic people’s courts; (2) joint litigation and class action cases with significant social impact; and (3) major cases involving foreign affairs, or Hong Kong, Macau and Taiwan.
In fact, difficult cases should be viewed from another angle, that is, the degree of social concern, legal relationship and technical overlap, etc. It is relatively objective to define it from the perspective of legal relationship. The involvement or intertwining of criminal and civil elements, alternation of commercial arbitration and litigation, and direct intersection, involvement, overlap and entanglement of different legal relationships are prominent features of difficult cases.
Q: What is the key to evidence production in difficult cases?
A: The pursuit of objective truth is the highest ideal of law. For this purpose, commercial litigation has designed a series of serious procedures and strict rules, and made great efforts in the distribution of proof standard and burden of proof. Legal truth is the actual state of proof standard, while objective truth is the objective standard and ultimate value for judging the authenticity of legal truth. However, due to the irreversibility of the facts in difficult cases, it is unrealistic for the parties to reproduce the historical features of cases absolutely and exactly.
The key to evidence production in difficult cases lies in their systematisation, intersectionality and complexity, that is, the multi-dimensional thinking of criminal, civil and administrative elements should be applied so as to be responsible for the legal facts of the case. The probative effect of criminal prosecution proposal and administrative penalty decision in commercial litigation must be considered, as a whole, to be meaningful.
Q: How is systematic evidence production in difficult cases easily understood?
A: Systematic evidence production in difficult cases is based on the systematic thinking, rather than individual and fragmented thinking, of case facts. The evidence of a specific case must be considered from multiple angles, such as the counterparty’s angle, trial angle, legal precedent angle, legal spirit, etc., so as to sort out accurate evidence-production thinking, and adjust one’s own demands.
The mission of law is to conform to the laws of nature and the nature of things, embody justice and rationality, and respect human dignity and ultimate value. In fact, the system of evidence production also lies here. In many difficult cases, it was after knowing the logical defects of the counterparty’s evidence production that the author fully achieved the client’s appeal goal.
Q: How is the dialectical nature of evidence production in difficult cases easily understood?
A: Within the framework of authenticity, relevance and legitimacy, all evidence must endure dialectical polishing. Law itself is a kind of dialectics, and dialectics is the basic framework of law. Evidence, as a combination of distributing rights and obligations, and addressing disputes and demands, whether old or new, insufficient or sufficient, weak or strong, negative or positive, depends on time, stage and space.
In cross-border commercial disputes, evidence production should be carried out after considering different legal systems and legal cultures. The “confession rule” in the new evidence rules, and the specific applicable rules and scope of electronic evidence in government information disclosure and government performance of statutory duties, are of important dialectical significance in judicial practice.
The value of retrial procedure, as an after-the-fact error correction procedure, lies not only in providing the parties with an opportunity outside the trial system, but also in reviewing and reflecting on the production of evidence, so as to correct mistakes to the greatest extent.
Q: How is the technicality of evidence production in commercial disputes easily understood?
A: Generally, private laws focus on ethical norms, while commercial law is full of pursuit and enthusiasm for technicality. For example, the provisions of the Company Law on convening procedure and resolution method of shareholders’ meetings, the procedures for issuing corporate bonds, and the selection and appointment of directors and supervisors, the provisions of the law of negotiable instruments on issuance, endorsement, acceptance and recourse of negotiable instruments, and the provisions of the maritime law on determination and adjustment of general average, all indicate that commercial law is composed of highly technical norms. Without the technical pursuit and research in evidence production, commercial lawyers will not be able to deal with the fundamental challenges of commercial disputes.
Yang Rongkuan is a senior partner at Kangda Law Firm. He can be contacted on +86 13601356259 or by email at yrklaw@126.com
