What Certification Procedures Are Required for 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. Given that such evidence is formed or exists beyond 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 Certification Procedures Are Required for 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 Certification Procedures Are Required for Extraterritorial Evidence in China?

According to previous laws, extraterritorial evidence generally needed to undergo corresponding certification procedures. However, with the promulgation of the "Several Provisions of the Supreme People's Court of China on Evidence in Civil Litigation" (hereinafter referred to as the New Evidence Provisions) on December 25, 2019, instead of uniformly mandating notarization or authentication for all evidence, the requirements are differentiated based on the type of evidence:

1. Materials for the Party's Subject Qualification

According to Article 521 of the Interpretation of the Civil Procedure Law of China, when a foreigner participates in litigation, they should submit to the Chinese court a passport or other documents to prove their identity. When a foreign enterprise or organization participates in litigation, the subject - qualification certificate provided should be notarized by the notary organ of the country where it is located, authenticated by the embassy or consulate of the People's Republic of China in that country, or go through the certification procedures stipulated in the relevant treaties concluded between China and the country where it is located before it becomes valid. The subject - qualification certificate here includes the company registration certificate or business license, the company's existence certificate, the representative's identity certificate, and their personal identity documents, etc. There are four points to note:

• Firstly, the notary organ should be defined broadly. Any organ or individual that has the authority to perform certification duties on specific matters in accordance with the laws of the country where the notarization takes place can issue notarized materials, such as notary offices, administrative agencies, autonomous organizations, associations, courts, notaries, judges, administrative officials, lawyers, and ship captains.

• Secondly, since the concept of a legal representative does not exist in most foreign companies, to determine the candidate and the basis of authority of the representative, a case - by - case analysis is required. Usually, there are two scenarios:

  • If the company registration documents clearly state that a certain person can act on behalf of the company with full power, then this person should be the legal representative (for example, German company documents usually contain statements regarding the authorized person).

  • If the company registration documents do not clearly state the representative or there are multiple representatives, generally, one of them needs to be elected as the representative to participate in the litigation on behalf of the company through a resolution of the company's power - making body (such as the board of directors). This resolution should be notarized and authenticated together with the representative's identity certificate.

• Thirdly, as the original registration materials of a legal person are usually stored in specialized institutions, such as the Companies Registry of the Hong Kong Special Administrative Region or the Commercial Registration Office of the local court in South Korea, the notary certifies that the attached materials are the same as the original registration materials. At this time, the registration materials attached in the notarized certificate can be copies or transcripts.

• Fourthly, when the plaintiff sues a defendant whose domicile is outside China and can provide proof of the defendant's existence, it meets the requirement of "having a clear defendant" as stipulated in the Civil Procedure Law of China. The proof of the defendant's existence can be documents such as a valid business registration certificate, identity certificate, or contract. Generally, it is not mandatory for the plaintiff to notarize and authenticate the above - mentioned proof.

  
  

2. Authorization and Entrustment Materials

According to Article 275 of the Civil Procedure Law of China, when a foreigner, stateless person, foreign enterprise, or organization without a domicile within China entrusts a Chinese lawyer or others to act as an agent in litigation and mails or delivers the power of attorney from outside China, it should go through the double - certification procedure of notarization and authentication, or go through the certification procedures stipulated in the treaties that China has joined. In judicial practice, the power of attorney provided by the parties should meet the following requirements:

• Firstly, the power of attorney should be provided in its original form. Since the power of attorney is personally signed by the party (if it is a legal person, it is the authorized representative) in the presence of the notary, and the notary certifies the authenticity of the party's signature and the true intention of the authorization, the power of attorney attached in the notarized certificate should be the original signed by the party.

• Secondly, the matters of the power of attorney should be as clear and specific as possible. Given that the extraterritorial notarization and authentication procedures are rather cumbersome, to save time, the scope of authorization should be expanded within the necessary limit. In terms of the stages covered, it can include the first - instance procedure, the second - instance procedure, the retrial procedure, the execution procedure, and the procuratorial supervision procedure. In terms of specific matters, it should be as comprehensive and specific as possible, such as stipulating the power to file a counter - claim, file an appeal on behalf of the party, conduct mediation, change the litigation request, and receive the refund of litigation fees on behalf of the party.

  
  

3. Public Documentary Evidence

Chinese law does not clearly define the concepts of public documentary evidence and private documentary evidence. Generally, written documents prepared by national functional departments in accordance with their official duties are considered public documentary evidence, such as marriage certificates, divorce certificates, nationality certificates, business licenses, and judgment documents. Additionally, reference can be made to the enumeration in the "Minutes of the Symposium on Foreign - related Commercial and Maritime Trial Work of the National Courts" released by the Supreme People's Court of China on January 24, 2022: "Public documentary evidence includes judgments and rulings made by foreign courts, documents issued by foreign administrative agencies, and documents such as commercial registrations, birth and death certificates, and marriage status certificates issued by foreign public institutions, but does not include documents issued by foreign private institutions such as appraisal agencies."

Article 16 of the New Evidence Rules states: "If a public documentary evidence submitted by a party is formed outside the territory of the People's Republic of China, this evidence shall be certified by the notary organ of the country where it is located, or go through the certification procedures stipulated in the relevant treaties concluded between the People's Republic of China and the country where it is located..." Therefore, for public documentary evidence formed outside the territory provided by the parties, it only needs to be certified by the notary organ or go through the certification procedures stipulated in the relevant treaties between China and the country where it is located; authentication is not required.

However, there are exceptions to the notarization of public documentary evidence. The "Minutes of the Symposium on Foreign - related Commercial and Maritime Trial Work of the National Courts" released by the Supreme People's Court of China on January 24, 2022, clearly states that if the authenticity of public documentary evidence formed outside the territory can be verified via the Internet or if both parties have no objections to the authenticity of the public documentary evidence, the relevant notarization or certification procedures can be waived.

4. Evidence Related to Identity Relationships

Extraterritorial evidence related to identity relationships (such as spousal relationships, parent - child relationships, guardian - ward relationships, and other kinship relationships) has both identity - related and extraterritorial attributes. Once confirmed, it implies the emergence of a series of significant rights and obligations related to personal and property matters. Therefore, Chinese legislation has stipulated more stringent certification procedures. According to Article 16 of the New Evidence Rules, evidence related to identity relationships formed outside China should be notarized by the notary organ of the country where it is located and authenticated by the embassy or consulate of the People's Republic of China in that country, or go through the certification procedures stipulated in the relevant treaties concluded between the People's Republic of China and the country where it is located.

5. Private Documentary Evidence

Private documentary evidence refers to documentary evidence generated from civil and commercial activities among private entities. In practice, the vast majority of civil litigation evidence belongs to private documentary evidence, such as contracts, payment vouchers, communication records, and documents from non - public third - parties (such as customers, suppliers, and service providers). According to current Chinese laws, it is not mandatory to notarize and authenticate private documentary evidence formed outside the territory. The party providing such evidence has the right to choose whether to go through relevant notarization, authentication, or other certification procedures.

For example, for evidence such as emails and WeChat chat records formed due to international trade transactions, the parties can choose to present them in court instead of necessarily notarizing and authenticating them. Moreover, regardless of whether extraterritorial evidence has undergone the corresponding certification procedures, the court needs to organize the parties to cross - examine the evidence and review and determine it in light of the cross - examination opinions. For such evidence, after the parties present and cross - examine it during the court session, the Chinese court will review it based on the evidence - authentication standards.