Notarization and/or Authentication Requirements on Extraterritorial Evidence Relaxed
On December 25, 2019, the Supreme People’s Court of the People’s Republic of China (the “PRC”) promulgated the Several Provisions of the Supreme People's Court on Evidence in Civil Litigation (the “New Rules of Evidence”). The New Rules of Evidence was effective on May 1, 2020. Compared with its previous counterpart promulgated by the Supreme People’s Court and implemented on April 1, 2002 (the “Original Rules of Evidence”), the New Rules of Evidence has dramatic changes in the notarization and authentication requirements on extraterritorial evidence.
It is generally required in Article 11 of the Original Rules of Evidence that if the evidence provided to the court was formed outside the territory of PRC, it shall be certified by the notary office of the country where it is located and authenticated by the embassy or consulate general of the PRC in that country, or it shall go through the proof procedures stipulated in the relevant treaties concluded between China and the country where the evidence is originated.
Article 16 of the New Rules of Evidence changed the above general requirement by: (1) removing such general stipulation that all the extraterritorial evidence must be notarized and authenticated; 2) narrowing down the scope of the extraterritorial evidence that shall be notarized and authenticated and further simplifying the proof procedures as follows: i) public documentary extraterritorial evidence only needs undergoing the notarization procedure, and the authentication proof by embassy or consulate of the PRC is not required; ii) identity-related extraterritorial evidence shall both be notarized and authenticated. That is to say, for extraterritorial evidence other than the above two categories, no notarization and/or authentication proof are required.
The New Rules of Evidence has greatly reduced the different and even erroneous understandings of the notarization and/or authentication proof requirements for extraterritorial evidence that existed under the Original Rules of Evidences, and it further unified and clarified the proof standards for extraterritorial evidence. It is conducive to reducing the economic and time costs of parties involved in foreign related civil litigations in China, and can greatly improve the efficiency of the litigation procedures. However, it is a little pity that the New Rules of Evidence has no stipulations as to the definition or specific scope of the public documentary extraterritorial evidence and identity-related extraterritorial evidence, thus it causes confusion and uncertainty to distinguish the categories of extraterritorial evidence in judicial practice and to determine its proof requirements, particularly the identification of Public Documentary Extraterritorial Evidence.
Scope of Public Documentary Extraterritorial Evidence was Clarified and Notarization Requirement was further Relaxed
In order to solve the above problems existing in judicial practice and unify the standards of determining the public documentary evidence, the Supreme Court promulgated a Meeting Minutes of the National Courts Symposium on Foreign-related Commercial and Maritime Trials (“Minutes”) in December 31, 2021. The Minutes enumerated some categories of public documentary extraterritorial evidence typical in civil related litigations in China, which include i) judgments, rulings made by foreign courts; ii) documents issued by foreign administrative agencies; iii) commercial registrations issued by foreign public agencies; iv) proof documents, such as birth and death certificates, marital status certificates etc., foreign appraisal agencies documents issued by private institutions are excluded.
The Minutes further provided that if the authenticity of the public documentary extraterritorial evidence could be verified through the Internet or the parties to the case have no objection to its authenticity, the notarization proof requirement can be waivered. This is considered a further relaxation of the notarization requirement on documentary extraterrestrial evidence in judicial practice, provided that its authenticity can be verified.
Some Understanding of Identity-related Extraterritorial Evidence and its Notarization and Authentication Requirements
The New Rules of Evidence still retains the notarization and authentication requirements for identity-related extraterritorial evidence and does not provide any exceptions. This requirement is derived from Article 271 of the Civil Procedure Law of the PRC which stipulates that “foreigners, stateless persons, foreign enterprises and organizations who do not have a domicile within the territory of the People’s Republic of China entrust a lawyer of the People’s Republic of China or other persons to represent them in litigation, and the power of attorney sent or entrusted from outside the territory of the People’s Republic of China shall be valid only after it has been certified by a notary public office of the country where it is located and certified by the embassy or consulate of the People’s Republic of China in that country, or after performing the certification procedures stipulated in the relevant treaties concluded between the People’s Republic of China and the country in which it is located”.
In judicial practice, in addition to the power of attorney, the extraterritorial evidence related to the identity that needs to be notarized and authenticated usually includes: i) the company registration certificate of the foreign party involved in the case; ii) the identity certificate of the legal representative of the foreign party; iii) the complaint signed by the foreign party (some local courts in China do not accept a complaint signed by the entrusted lawyer, even if the power of attorney expressly states that the entrusted lawyer has the right to sign the complaint). According to the aforementioned meeting Minutes, a commercial registration issued by foreign public agencies is a public documentary extraterritorial evidence, and only needs to be notarized. However, the principal identity of the plaintiff or defendant still needs to be notarized and authenticated.
By Eric Wang / Grandway Law Offices (Shanghai)