How Do Chinese Courts Examine Extraterritorial Evidence?

Extraterritorial evidence refers to evidence that is formed or exists outside China or outside the legal jurisdiction of the court handling the case. It includes evidence formed or existing outside China's territory as well as evidence from Hong Kong, Macao, and Taiwan regions of China. Since such evidence is formed or exists outside the jurisdiction of the handling court, the court faces natural obstacles in judging its admissibility. Therefore, the legislation of various countries and relevant international conventions have stipulated specific formal requirements for extraterritorial evidence.

How to regulate and effectively provide extraterritorial evidence, and how to review and determine it, will directly affect the substantive outcome of the case and the protection of the parties' rights and interests. This article will summarize several issues related to extraterritorial evidence. Of course, evidence related to Hong Kong, Macao, and Taiwan regions should go through relevant certification procedures as required by Chinese laws. Due to space limitations, this will not be discussed in this article.

How Do Chinese Courts Examine Extraterritorial Evidence?

How Do Chinese Courts Examine Extraterritorial Evidence?

For a long time, whether notarization and authentication have been carried out has been a common criterion used by Chinese courts to review and determine extraterritorial evidence in foreign - related civil litigation cases. However, uniformly requiring all extraterritorial evidence to go through notarization and authentication procedures not only increases the burden on the parties but also leads to many foreign - related cases being delayed for a long time. Currently, Chinese courts across the country are gradually shifting from strict formal review to free substantive review in examining the validity of extraterritorial evidence, in order to meet the growing demands of foreign - related case trials and the practical interests of the parties.

Since the special certification procedure is only one of the conditions for extraterritorial evidence to obtain admissibility, whether extraterritorial evidence that has gone through the certification procedure can ultimately be adopted as evidence still needs to be cross - examined in court and judged in combination with evidence - determination rules. Extraterritorial evidence that has been notarized and authenticated is not necessarily adopted as evidence for deciding a case, and evidence that has not been notarized and authenticated is not necessarily excluded from being used as evidence for deciding a case.

For extraterritorial evidence such as subject - qualification certificates, entrustment procedures, and evidence related to identity relationships, fulfilling the legal certification procedures is a necessary procedural requirement stipulated by law. Failure to fulfill such certification procedures may lead to the evidence not being adopted by Chinese courts.

For extraterritorial evidence that has gone through the certification procedures, if the opposing party can present sufficient evidence to refute it, or prove through cross - examination that the evidence has no relevance to the case, then this evidence still cannot be used as evidence. If only the formal authenticity is notarized, the judge should further determine the authenticity of the content. For example, for a witness testimony issued by a witness outside China, even if it has been notarized by a notary organ, since the content notarized by the notary organ only proves the identity of the witness and the authenticity of the witness's signature, and the notary does not prove the authenticity of the witness's statement, the authenticity of the content of the witness testimony still needs to be examined and determined by the judge in combination with other evidence.

For ordinary extraterritorial evidence, the certification procedure is not necessarily mandatory. Certification methods such as notarization and authentication only increase the authenticity of the evidence. In cases where the authenticity of the evidence has been recognized by the opposing party or can be proven through mutual verification with other evidence, even if it has not been notarized and authenticated, it may still be adopted as evidence.

For example, in an international goods sales dispute, if no written sales contract has been signed between the two parties, the rights and obligations between them may be determined based on their exchanged emails. In principle, this type of evidence can be verified for authenticity by on - site display or online login verification.