Discovery

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司法调解

ALL JURISDICTIONS require rules governing the ways in which evidence is obtained for the purpose of legal proceedings.

The existence of such rules is essential to ensuring that legal proceedings are conducted in a fair and transparent manner and that one party is not disadvantaged by not being able to obtain evidence that supports its case. This article examines the issues in the context of civil litigation and compares the position in common law jurisdictions with the position in mainland China.

COMMON LAW JURISDICTIONS

Common law jurisdictions are often referred to as being adversarial in nature. One of the features of an adversarial system is that the courts decide a case based solely on the evidence presented by the parties. Unlike civil law jurisdictions, which are often described as inquisitorial (or “non-adversarial”) in nature, the courts do not investigate the facts themselves or collect their own evidence.

In an adversarial system, it is the responsibility of the parties to collect evidence in support of their case before the proceedings commence and to present it to the court. How the parties obtain evidence – particularly when it is in the possession of the other party – is therefore of critical importance. The process by which a party to civil litigation may obtain evidence before a proceeding commences is commonly known as “discovery”. In the UK, the process is known as “disclosure” following reforms to civil procedure that were adopted in 1999.

There are several ways in which one party may obtain evidence from other parties. One way in which a party may obtain evidence from the other party to the proceedings is to make a request to the other party to provide answers to a list of questions. Generally known as interrogatories, such requests assist one party to understand the other party’s legal claim and also the facts that the other party may present in support of its claim.

If evidence is required from third parties (i.e., parties who are not parties in the proceedings), it is possible to request a court to issue a subpoena to the third party, requiring the third party to provide documents or to appear and give evidence in the proceedings.

Another way in which a party may obtain evidence that is in the possession of the other party to the proceedings is to request the other party to produce documents that are relevant to the dispute and that are within its physical possession or control. In the UK, a broad definition of “control” is adopted and includes the right to obtain a copy of, or to inspect, a document. Examples of documents that are considered to be in the control of a party include documents held by its subsidiaries or agents.

The other party is required to provide any such documents, even if they are unfavourable to its case. Failure to comply with this requirement may lead to certain consequences, including contempt of court proceedings. (For a discussion about contempt of court, see China Business Law Journal volume 8 issue 7: Contempt of Court.) In the UK, the term “inspection” refers to the right of a party to inspect and obtain copies of the documents that have been disclosed.

All documents are required to be provided, except those that are subject to privilege (for a discussion about privilege, see China Business Law Journal volume 4 issue 9: Privilege). Because of the potential sensitivity of the documents that are disclosed, the rules usually provide that the documents may be used only for the purposes of the specific proceedings.

If the documents cannot be provided, the other party needs to give reasons. There are various reasons as to why a party may not be able to provide documents. For example, the documents may have been destroyed. (For a discussion about document destruction and the duty to preserve documents, see China Business Law Journal volume 9 issue 5: Document Destruction.) Alternatively, the party may argue that the documents are not in its possession or that it would be unduly burdensome to provide them. If the party requesting the documents is not satisfied with the reasons, it may request the court to issue an order for the provision of the documents.

The range of documents that are subject to discovery is very broad. For example, under the Civil Procedure Rules in the UK, the term “documents” is defined broadly and includes “anything in which information of any description is recorded”. The definition captures not just paper documents (such as agreements, correspondence, memoranda and handwritten notes), but also electronic documents such e-mails, SMS texts, voicemail and other electronic communications.

Various tests are applied to determine the scope of documents that must be disclosed: in the UK, the “standard disclosure” process requires the disclosure of documents relevant to the dispute. Broader tests are adopted in other jurisdictions, such as US where the laws of many states require discovery of documents that may be relevant or that are “reasonably calculated to lead to the discovery of admissible evidence”.

The discovery process has its advantages and disadvantages. One of the advantages is that it provides documents that help the parties decide whether to proceed with the proceedings or, instead, to settle before the proceedings commence. One of the disadvantages is that it is very time-consuming and very costly. Consequently, it is often perceived to favour the wealthier party, which can use discovery to make excessive requests of the other party and to delay the proceedings.

Increasingly, technology is being used to facilitate the disclosure of electronic information. This can reduce the time and costs significantly.

In jurisdictions such as the UK, the obligation to disclose documents continues until the court proceedings have been concluded.

MAINLAND CHINA

Chinese law does not make provision for a discovery process such as that in common law jurisdictions. Each party is responsible for collecting and presenting its own evidence in support of its case. It is possible for a party to request the court to investigate and collect evidence, but it is sometimes difficult to persuade a court to do this.

Article 64 of the Civil Procedure Law provides as in citation 1.

引文一 Citation 1

中国《民事诉讼法》第六十四条

当事人对自己提出的主张,有责任提供证据。

当事人及其诉讼代理人因客观原因不能自行收集的证据,或者人民法院认为审理案件需要的证据,人民法院应当调查收集。

Article 64, PRC Civil Procedure Law

A party shall have the responsibility to provide evidence in respect of any claims that it makes.

Where a party and its litigation representative are unable to collect evidence on their own accord owing to objective reasons, or a people’s court considers that evidence is necessary for trying a case, the people’s court shall investigate and collect the evidence.

A people’s court shall review and verify evidence comprehensively and objectively in accordance with the legal procedures.

In 2015, the Supreme People’s Court issued the “Interpretation of the Supreme People’s Court on the Applicability of the Civil Procedure Law of the People’s Republic of China”. Article 112 of the Interpretation provides as in Citation 2.

引文 Citation 2 

《最高人民法院关于适用〈中华人民共和国民事诉讼法〉的解释》第112条

书证在对方当事人控制之下的,承担举证证明责任的当事人可以在举证期限届满前书面申请人民法院责令对方当事人提交。

申请理由成立的,人民法院应当责令对方当事人提交,因提交书证所产生的费用,由申请人负担。对方当事人无正当理由
拒不提交的,人民法院可以认定申请人所主张的书证内容为真实。

Article 112, Interpretation of the Supreme People’s Court on the Applicability of the PRC Civil Procedure Law

If documentary evidence is under the other party’s control, the party with the responsibility for providing evidence may request in writing the people’s court to order the other party to provide the same before the expiry of the period for providing evidence.

If the grounds for the request are valid, the people’s court shall order the other party to provide the evidence and the cost of production of the evidence will be borne by the requesting party. If the other party refuses to provide the evidence without any proper reason, the people’s court may consider the content of the documentary evidence as asserted by the requesting party to be true. 

The above provides a basis on which a party to civil proceedings may obtain documentary evidence that is in the control of the other party. The requesting party must prove two elements: (1) the relevant evidence is in the control of the other party; and (2) the grounds for the request are valid. It is expected that the second element will be satisfied if the party can prove that the documentary evidence is relevant to the essential aspects of the dispute.

As this provision is relatively new, we await experience as to how it will be interpreted and applied by Chinese courts in practice.

葛安德 Andrew Godwin
葛安德
Andrew Godwin

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre.  Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.