Rules Set Important Guidelines of Evidence in Civil Lawsuit

"Rules on Evidence in Civil Lawsuit of the Supreme People's Court" came into effect on 1st April 2002. Important guidelines have been set regarding the collecting, providing and cross-examining of evidence in litigation.

1. Burden of proof by claimant/respondent. Article 2 of the Rules provides that parties concerned shall bear the burden to prove the fact on which the claim of the suit is based. In case no evidence or insufficient evidence is provided to prove the fact on which the suit is based, the parties who have the burden of proof shall be prepared to accept the unfavorable consequences. Besides, the People's Court shall let the parties in litigation know the requirements of adducing evidence and the legal consequences thereof, and in case parties concerned are not in a position to collect evidence by themselves due to special objective cause, they may request the Court to collect evidence on their behalf (Article 3). Burden of proof shall be shifted to the respondent, in case of certain infringement lawsuits. For instance, in process patent infringement lawsuit concerning a new product, the burden of proof shall lie with the respondent, i. e., the respondent shall prove that he has exploited a process different from the patented process (Article 4).
2. Collecting evidence by the Court. According to Article 15, the Court may, at the request of the parties concerned or their legal representatives, collect evidence for and on their behalf, if:
   1) the evidence to be collected is in the nature of archive which is kept by relevant state organs, and which is only accessible to People's Court's ex officio investigation;
   2) the evidence relates to state secrecy, trade secret or privacy; and
   3) the evidence can not be collected by the parties or their legal representatives due to special objective cause. If parties concerned request the Court to collect evidence on their behalf, they should apply in writing, stating clearly the name of the person or entity to be investigated as well as its address, and what evidence to be collected, the reason for asking the Court to act on their behalf and the fact they intend to prove. Such request shall be filed seven days before the deadline specified by the Court to hand in evidence.
3. Time for submitting evidence and exchange of evidence in the Court. When notifying the claimant of the acceptance of a case or serving the notification to the respondent, the Court shall in the meantime invite both parties to submit evidence. Burden of proof as well as the principles in distributing the burden and other requirements, the ircumstances in which parties can apply to the Court for collecting evidence on their behalf, the deadline for collecting evidence and the legal consequence for over due evidence shall be indicated in this notification. If the deadline for submitting evidence is specified by the Court, it shall not be less than thirty days. In the meantime, parties concerned may agree upon the deadline for submitting evidence, subject to the ] Court's prior approval (Article 33).
4. Cross-examination and expert witness. Any evidence submitted by parties concerned should be under query of the other parties and be cross-examined during Court hearings. However, evidence relating to state secrecy, trade secret and privacy should not be cross-examined in open hearings (Article 47 and Article 48). Parties can apply, ten days prior to hearings, to bring in one or two persons with expertise to testify and answer specific questions, subject to the Court's approval. Persons with expertise brought to the court by the parties may enquire each other on specific questions, if permitted by the judges.

These guidelines are believed to have profound impact on facilitating the "discovery" process, particularly in intellectual property related lawsuits.