Sue a Company in China: How Do Chinese Judges Treat Evidence?
As we mentioned in an earlier article “What Evidence Strategy Should You Adopt in a Chinese Court”, all claims/allegations you make in a Chinese court need to be proved by your own evidence. You cannot expect the other party to present evidence to the judge that is favorable to you and unfavorable to himself.
This requires you to start preparing your evidence as early as possible, even at the very beginning of the transaction with your Chinese partners.
So, what evidence should you prepare? Documentary evidence (physical documents), electronic documents, and recordings are all necessary in this regard.
I. Documentary evidence
Documentary evidence includes contracts, order sheets, quotations, product manuals and other documents.
Allowing judges to quickly obtain useful information and make a judgment, documentary evidence, especially text, is the most popular evidence among Chinese judges.
Chinese judges are very concerned about the authenticity of documentary evidence. Therefore, you’d better submit the originals of documentary evidence if possible. Normally, the judges define the original of documentary evidence as a document with both parties’ company seals or signatures.
However, in cross-border trade, most documents are sealed or signed on scanned documents that have been sealed or signed by the other party, and then are sent back. Therefore, both parties may only have scanned copies with the other party’s seal or signature instead of the originals.
As we described in our previous article “How Chinese Courts Interpret Commercial Contracts”, Chinese judges can be inflexible in some cases. They may require you to prove in more ways that the scanned copy is the same as the original, namely, to prove the authenticity of documentary evidence.
At this point, you’d better submit to the judge the email attached with the scanned copy from the other party.
The reason is that if the scanned copy of a sealed or signed document comes from the other party’s email, judges tend to assume that the document is delivered under his or her own hand and seal and believe it’s authentic.
II. Electronic data
Electronic data, including emails, chat history of WeChat or WhatsApp as well as digital documents and pictures, can also serve as evidence under Chinese law.
The aforementioned documentary evidence, if it is a scanned copy stored in an electronic device, will also be considered electronic data.
Electronic data can be used to prove the contents of a contract.
As we stated in “Can I Sue the Chinese Supplier Only With Emails Instead of a Written Contract?”, the contents of a contract settled in an email are also regarded as a written contract under Chinese law.
Electronic data can also prove the performance of a contract, such as records of payments and shipments, as well as notices from the other party indicating a refusal to fulfill the contract.
However, since it is difficult to make direct judgments about the authenticity of electronic data, Chinese judges are often concerned that the data may have been tampered with.
An article by Mr. Chenyang Zhang, “Will Chinese Courts Admit E-mail into Evidence?” also suggests solutions, such as,
1. Try to use data services from third-party platforms.
If you use mailbox services provided by Yahoo, Google, Apple, and certain Chinese internet service providers such as Tencent and Alibaba, your email data will be saved on their servers.
The judge will assume that the data on the servers of these third-party platforms is hard to be tampered with and thus presumed to be authentic.
2. Bring your device containing the original data to court.
If you open your computer or mobile phone on the spot to show the judge your emails and chat history, he will be more likely to recognize the electronic data.
3. Have your electronic data notarized by a notary
If your device is beyond China, or your data is not accessible within China, such as data on Google, Facebook, or WhatsApp, you may not be able to present your data in a Chinese court.
In this case, you can have a notary in your location access the device where you keep the original data, such as your computer, mobile phone or server, and have the notary record the data.
Then, you can take the notarial certificate to the Chinese Embassy or Consulate(s) in your country for authentication.
Upon notarization and authentication, your electronic data can now be recognized by a Chinese judge.
Chinese courts recognize recordings as evidence. You can prove what the other party has said, promised and approved through your recorded calls.
That is why we often recommend that you get the other party to tell the facts in your favor during calls and record them.
It should be noted, however, that the secret recording should not be made in the place where recording is prohibited, nor by fraud or coercion. For more information, you can see Mr. Chenyang Zhang’s another article “Can Secret Recordings Be Used as Evidence in Chinese Courts?”.
You may say, “I know these facts and I can travel to China and give my testimony in court.”
Unfortunately, in most cases, testimony cannot convince Chinese judges.
As I explain in “Why Chinese Judges Don’t Trust the Witnesses and Parties in Civil Litigation?”, Chinese judges will assume that witnesses are very likely to lie and thus will require you to provide more documentary evidence to support your testimony. Therefore, you can’t count on testimony alone.
In summary, if you have gathered necessary documentary evidence, electronic data and recordings, you can start preparing to bring a case before a Chinese court.
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