The foreign language documents used in China court
In order to ensure that the people’s court correctly determines the facts of the case, hears civil cases in a fair and timely manner, and ensures and facilitates the parties to exercise their litigation rights in accordance with the law, in accordance with the provisions of relevant laws such as the Civil Procedure Law of the People’s Republic of China (hereinafter referred to as the Civil Procedure Law), combined with civil trial experience and actual situations, The 1777th meeting of the Judicial Committee of the Supreme People’s Court passed the Decision on Amending the Several Provisions on Evidence in Civil Litigation (hereinafter referred to as the New Evidence Provisions) on October 14, 2019. The new evidence provisions were issued in the form of Fa Shi [2019] No. 19 on December 25, 2019 and came into effect on May 1, 2020.
Among them, Article 16 of the New Evidence Regulations provides the following provisions for extraterritorial evidence:
The official documents and evidence provided by the parties are formed outside the territory of the People’s Republic of China, and such evidence shall be certified by the notary public of the country where it is located, or the certification procedures stipulated in the relevant treaties between the People’s Republic of China and the country where it is located shall be fulfilled.
Evidence related to identity relationships formed outside the territory of the People’s Republic of China shall be certified by a notary public in the host country and authenticated by the embassy or consulate of the People’s Republic of China in that country, or the certification procedures stipulated in relevant treaties between the People’s Republic of China and the host country shall be fulfilled.
The evidence provided by the parties to the people’s court is formed in Hong Kong, Macau, and Taiwan, and relevant proof procedures should be fulfilled
According to this provision, the new evidence provision no longer requires all extraterritorial evidence to be notarized and authenticated. It also stipulates for official documents and evidence related to identity relationships. We can simply understand that simplified procedures are required for official documents and evidence, with only notarization required; For evidence involving identity relationships, notarization and authentication are required. However, the new evidence regulations do not provide a clear definition of what constitutes “official document evidence”, which may cause confusion for the court and parties involved and increase the uncertainty of evidence determination.
China recognizes that official documents and documentary evidence have the probative effect of presumption of truth, and has made special provisions for them in the judicial interpretation and original evidence provisions of the Civil Procedure Law. Article 114 of the Judicial Interpretation of the Civil Procedure Law stipulates: “The matters recorded in documents produced by state organs or other organizations with social management functions in accordance with the law within their scope of authority are presumed to be true, unless there is evidence to the contrary that is sufficient to overturn them. Article 77 of the original evidence provision (which is not included in the new evidence provision) states: “The evidentiary power of official documents produced by state organs and social organizations in accordance with their authority is generally greater than that of other documents.” It can be seen that under the Civil Procedure Law, official documents should be understood as documents produced by state organs and social organizations with social management functions within the scope of their authority.
From the above provisions, the scope of documentary evidence in official documents should be relatively clear. However, through observation of Chinese court judgments after the implementation of the new evidence regulations, it was found that Chinese courts have inconsistent understandings of extraterritorial documentary evidence, as follows:
Case 1:
In judicial practice, there is no dispute in the court that documents made by public authorities in accordance with their authority are official documents. For example, in the (2019) Yue 0391 Min Chu 682 case, the defendant submitted the “Notice of Confiscation” and “Letter of Refund of Deposit” issued by the United States Customs and Border Protection Bureau. The Qianhai Court considered these two documents to be official documents under the new evidence provision, but they were not accepted because the defendant did not provide relevant notarized materials.
Case 2:
Documents made by private entities are generally not recognized by the court as official document evidence. For example, in the (2020) Luminzhong 1386 case, Shandong High Court believed that the medical records and medical expense invoices issued by an Indonesian hospital were not official documents. In the (2020) Jin 01 Min Zhong 2886 case, Tianjin First Intermediate People’s Court held that contracts, correspondence, and expense receipts formed in Greece were not official documents. In the aforementioned cases, the court held that the documents made by these private subjects were not official documents, and according to Article 16 of the new evidence regulations, notarization was not required and their authenticity was recognized.
Case 3:
In practice, there is also a view or tendency for courts to recognize documents made by private entities as evidence of official documents. For example, in the (2019) Xiang 03 Min Zhong 1138 case, regarding the Settlement Contract signed by the parties in New Zealand, the Xiangtan Intermediate People’s Court believed that it had undergone notarization and authentication procedures, and therefore recognized it. In the (2020) E01 Min Zhong 1575 case, the Wuhan Intermediate People’s Court held that the bills for expenses incurred by the parties abroad had not been notarized, and therefore were not recognized. In the above case, although the court did not clearly define the documents made by the private subject as official documentary evidence, the legal basis cited was Article 16 of the New Evidence Regulations. Therefore, the court is likely to interpret these documents as official documentary evidence.
