The Supreme People’s Court released the Decision of the Supreme People’s Court on Amending the Provisions on Evidence in Civil Procedures (the “Civil Evidence Provisions of 2019”), which will go into effect on May 1, 2020. The Civil Evidence Provisions of 2019 are amendments to the Provisions on Civil Evidence of 2008 based on to the Civil Procedure Law of 2012 and Interpretations of the Civil Procedure law in 2015, as well as other rules of the evidentiary system. These amendments revise 41 articles of the original Provisions on Civil Evidence and add 47 articles. This article will briefly introduce the rules regarding admissions, and the investigation, collection, review and determination and authentication of electronic evidence as covered in these amendments.
First, the Civil Evidence Provisions of 2019 amend and improve the rules on admissions. For admissions by a litigation agent, unless they involve items that are expressly excluded by the retainer letter, those admissions are to be deemed as admissions of the party itself; the conditions for revoking party admissions are also appropriately expanded. For admissions made by a party under coercion or major misunderstanding, the party is no longer required to substantiate that the confession is inconsistent with the facts.
The Civil Evidence Provisions of 2019 also enumerate the scope of electronic data and stipulate the rules regarding the review and determination of electronic data. Electronic data include the following information and electronic files: (1) information published by Internet platforms such as websites, blogs, and microblogs; (2) text messages, emails, instant messaging, communication groups and other communications through Internet app services; (3) user registration information, identity authentication information, electronic transaction records, communication records, and login logs; (4) electronic documents, pictures, audio clips, video clips, digital certificates, and computer programs; and (5) other information that is digitally stored, processed and transmitted and can prove the facts of the case. The people’s court shall comprehensively determine the authenticity of electronic data by considering the following factors: (1) whether the hardware and software environment of the computer system that the generation, storage and transmission of electronic data are depending on are complete and reliable; (2) whether the hardware and software environment of the aforementioned computer system is operating normally, or whether the generation, storage, and transmission of electronic data will be impacted otherwise; (3) whether the hardware and software environment of the aforementioned computer system has effective means of monitoring or verification to prevent errors; (4) whether the electronic data are being stored, transmitted, retrieved in a complete manner, and whether the means of storage, transmission and retrieval are reliable; (5) whether the electronic data are being formed and stored under ordinary activities; (6) whether the entity storing, transmitting or retrieving the electronic data is appropriate; and (7) whether there is any other factor that affects the integrity and reliability of the electronic data. If necessary, a people’s court may examine and determine the authenticity of electronic data through authentication or inspection.
In addition, the Civil Evidence Provisions of 2019 also provide authentication deadlines and false authentications. For example, before the authentication begins, the people’s court should require the authenticator to sign a letter of undertaking in which the authenticator affirms that the authentication will be performed objectively, fairly and honestly, and it will testify at court hearings. In case of willful false authentication, the people’s court shall not only order the return of the authentication fee but also impose a fine, detention or even criminal liabilities based on the circumstances. It is also stipulated that the authenticator shall complete the authentication within the period set by the people’s court, or the parties may request the people’s court to retain another authenticator to perform the authentication. If the application is granted by the people’s court, the authentication fee collected by the original authenticator shall be returned.