China
In the PRC, although parties must substantiate their cases with evidence, in principle they are free to determine what evidence they want to use. A court may, however, order a party to submit certain additional evidence if it considers it necessary. Failure to comply with the court’s order may cause the court to draw adverse inferences. Further, whilst there is no concept of legal privilege in the PRC, any evidence containing state secrets, personal information or business secrets will not be publicly presented during an open hearing.
Under the PRC Civil Procedure Law, a party may request the court to investigate and collect evidence on its behalf if the party and its representatives are unable to collect it for objective reasons, including because: (i) it is archived by state authorities and the party has no right of access to it; or (ii) it contains national secrets, trade secrets or personal information. The court is also authorized to investigate and collect evidence which the court deems necessary. Procedurally, if a party requests the court to investigate and collect evidence on its behalf, the requesting party should submit a written application stating:
- basic information of the person or entity to be investigated (name, address, workplace, etc.);
- the evidence to be investigated and collected;
- the reasons for making the request;
- the facts to be proved by the evidence; and
- the definite clues.
Pursuant to Article 95 of Interpretation of the Supreme People’s Court on Application of the PRC Civil Procedure Law (the SPC Interpretation on Civil Procedure), the request for collection of evidence should be rejected if the evidence requested is unrelated to the facts to be proven, is meaningless for proving the facts or if the court considers that it is unnecessary to investigate it.
It should be noted that, in practice, courts rarely grant requests for the collection of evidence. This is partly due to the vaguely defined concept of “objective reasons”, which leaves the discretion to the court, and partly due to the fact that such requests will place additional burdens on the courts, which already struggle with heavy caseloads.
Under the law of the PRC, interim relief for evidence preservation is available both during and prior to the commencement of legal proceedings if evidence is at risk of being destroyed or may become difficult to obtain at a later date. A party can apply to the competent court for evidence preservation, and the court can also take preservation measures on its own initiative. The party requesting the evidence preservation will usually be required by the court to provide security in case such evidence preservation causes losses to other related parties.
Theoretically, the plaintiff can apply to the court for the court’s investigation and collection of evidence before the commencement of proceedings. However, the court rarely grants such applications before the commencement of proceeding.