New provisions on extraterritorial public documentary evidence

Authors: Zhang Guanglei / Chen cheng

(This article was first published on China Business Law Journal column "Cross-border dispute resolution", authorised reprint)

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.

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.

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.

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作者介绍张光磊

合伙人

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张光磊律师毕业于中国政法大学，获法学学士、民法学硕士和商法学博士学位。此外，获美国乔治华盛顿大学法学硕士学位，为哥伦比亚大学法学院访问学者。张律师拥有中国及美国纽约州律师资格，为香港国际仲裁中心在册仲裁员，中国政法大学法律硕士学院和对外经济贸易大学法学院兼职导师。

张律师的主要业务领域为争议解决，在民商事诉讼、仲裁、调解等领域拥有丰富的经验，被CLECSS评选为2018年十大杰出青年律师。在香港国际仲裁中心主办的2019国际仲裁中文赛中，张律师带领竞天公诚律师事务所获得北京赛区冠军和全国亚军，其个人在所有场次比赛中均被评为最佳律师。

张律师曾代表境内外客户处理过中国国际经济贸易仲裁委员会及其分会、北京仲裁委员会、上海国际仲裁中心、深圳国际仲裁院、珠海国际仲裁院、香港国际仲裁中心等仲裁机构及中国不同层级法院的数百宗民商事案件。张律师擅长在跨境交易纠纷中为客户制定整体解决方案，曾在美国、新加坡、香港等地的诉讼和仲裁程序中多次担任中国法顾问及专家证人。

张光磊律师历史文章

 陈程  

律师

0755-2155 7050

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陈程律师毕业于清华大学法学院，获法律硕士学位，拥有中国律师执业资格。陈律师的主要业务领域为争议解决，曾代表境内外客户处理过数十宗民商事诉讼仲裁案件，也曾参与过多宗商事交易的尽职调查和谈判，在争议预防和解决方面拥有丰富的经验。

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