What Are the Types of Extraterritorial Evidence in China?

Extraterritorial evidence refers to evidence that is formed or exists outside China or outside the legal jurisdiction of the court handling the case. It encompasses 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 inherent difficulties in assessing its admissibility. Consequently, the legislation of various countries and relevant international conventions have stipulated specific formal requirements for extraterritorial evidence.

What Are the Types of Extraterritorial Evidence in China?

How to regulate and effectively present extraterritorial evidence, and how to review and determine it, directly impacts 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.

What Are the Types of Extraterritorial Evidence in China?

In foreign - related civil and commercial cases in China, due to the involvement of foreign - related parties, the occurrence of facts that lead to the establishment, change, or termination of legal relationships outside the jurisdiction of the handling court, or the location of the litigated subject matter outside the jurisdiction of the handling court, it is inevitable that some evidence is formed outside the territory. From the perspective of Chinese judicial review, extraterritorial evidence in China can be broadly classified into two categories:

Materials Concerning the Litigation Subject Qualification of the Parties and Authorization and Entrustment Matters

Reviewing and verifying the litigation subject qualification of the parties and their authorization and entrustment matters is a crucial step prior to the substantive trial of a case. It is related to whether the case - filing conditions are met and whether the litigation process can proceed smoothly. Therefore, regardless of whether a foreign party in a foreign - related civil and commercial case acts as a plaintiff or a defendant, it should and must provide the Chinese court with relevant supporting materials sufficient to prove its litigation subject qualification in accordance with China's current Civil Procedure Law.

When a foreign party acts as a defendant, the following actions should be taken according to different circumstances:

1. If, at the time of prosecution, the plaintiff provides proof of the defendant's existence but fails to provide the defendant's specific address, or if service cannot be made based on the address provided by the plaintiff (excluding service by public announcement), the plaintiff should further supplement and provide the defendant's specific address. If the defendant's address still cannot be determined based on the materials supplemented by the plaintiff, the court may serve relevant judicial documents on the defendant by public announcement in accordance with the law.

2. If, at the time of prosecution, the plaintiff does not provide proof of the defendant's existence, but based on the defendant's name, title, domicile, name of the legal representative, etc. stated in the indictment, the defendant can be served through legal service channels (excluding service by public announcement), and after service, the defendant does not respond or defend within the legal time limit and refuses to appear in court, the court may conduct a default judgment in accordance with the law.

3. If, at the time of prosecution, the plaintiff does not provide proof of the defendant's existence, and based on the circumstances stated in the indictment, service cannot be made on the defendant through legal service channels (excluding service by public announcement), the plaintiff should supplement and provide proof of the defendant's existence. If the plaintiff refuses to provide such proof or if, after supplementation, the defendant's true existence still cannot be determined, the court may find that there is no clear defendant and should, in accordance with Article 122(2) of the Civil Procedure Law of the People's Republic of China, rule to reject the plaintiff's lawsuit.

   
   

Evidence Used to Prove the Facts of the Case

As a major component of the scope of evidence in foreign - related civil and commercial cases, extraterritorial evidence regarding the facts of the case is also of great significance in the trial and may directly affect the substantive judgment result of the case.

So, how to determine whether a piece of evidence is extraterritorial evidence? Chinese law does not provide a clear definition. Based on practical experience, it can be judged by considering whether the evidence involves subjects outside China, whether it uses extraterritorial languages, numbers, currencies, measurement units, standards, production habits and methods, whether it reflects facts occurring outside the territory, and whether it has other factors that can prove its formation outside the territory. For example, if a party obtains a witness testimony from a witness outside China, it belongs to extraterritorial evidence. However, if the representative of a foreigner, foreign enterprise, or organization signs a power of attorney in the presence of a judge, it does not belong to extraterritorial evidence.