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Earth Research | New Evidence in Second Instance Civil Litigation: Determination and Handling

Publish Time:

Jan 04,2025

Source:

Authors: Chen Xia, Shen Zixiao

Evidence plays an irreplaceable and central role in civil litigation. From the filing stage, it is one of the key factors determining whether a case can be accepted by the court. Parties must provide preliminary evidence to demonstrate that their claims are reasonably grounded. During the trial, evidence is the "ammunition" used by both sides, upon which the judge bases their factual findings, application of the law, and subsequent just judgment. Precise and sufficient evidence can strongly support a party's claims, tilting the scales of justice in their favor; conversely, a lack of evidence or flaws in the evidence may lead to a failure to articulate a valid argument, making it difficult to protect legitimate rights and interests. In the second-instance procedure, the importance of evidence organization for the appellant is self-evident. This article will analyze the determination and handling of new evidence in the second instance, starting from the changes in the "Supreme People's Court's Several Provisions on Evidence in Civil Litigation." It will address the difficulties and pain points of submitting new evidence in the second instance.

Determination Rules for "New Evidence" in the Second Instance

Changes in the Determination of "New Evidence" in the Second Instance in the "Supreme People's Court's Several Provisions on Evidence in Civil Litigation"

Version No. 33 [2001]

Version No. 19 [2019]

Article 41: The "new evidence" stipulated in Article 125, Paragraph 1 of the Civil Procedure Law refers to the following situations:

(2) New evidence in the second-instance procedure includes: evidence newly discovered after the conclusion of the first-instance trial; evidence that the party applied to the people's court for investigation and collection before the expiration of the first-instance evidence submission deadline but was not granted, and which the second-instance court, after review, deems should be granted and collected at the party's request.

Article 41: The "new evidence" stipulated in Article 125, Paragraph 1 of the Civil Procedure Law refers to the following situations:

The Supreme People's Court clarified in its "Several Issues Concerning the Understanding and Application of the New Civil Evidence Provisions" issued on March 26, 2020: The provisions of the 2001 "Civil Evidence Provisions" on the consequences of providing evidence after the deadline are based on the principle of evidence forfeiture. New evidence does not fall under the category of overdue evidence; that is, only evidence meeting the conditions for new evidence will not result in evidence forfeiture. Therefore, it is necessary to clearly define the connotation and extension of new evidence. This is also the reason why the 2001 "Civil Evidence Provisions" made detailed provisions on the scope, judgment standards, and consequences of new evidence in Articles 41 to 44.

Based on the implementation of the evidence submission deadline provisions in the 2001 "Civil Evidence Provisions," the 2012 Civil Procedure Law established an evidence submission deadline system in Article 65, adopting a method of handling different situations of overdue evidence with different consequences. That is, the 2012 Civil Procedure Law does not use evidence forfeiture as a general principle for overdue evidence, but rather considers whether the reason for providing evidence after the deadline is valid, with corresponding consequences ranging from warnings and fines to non-acceptance. Since the 2012 Civil Procedure Law substantially changed the stance of using evidence forfeiture as the general principle for the consequences of providing evidence after the deadline, ， Under this premise, the provisions on new evidence in the 2001 "Civil Evidence Provisions" are no longer valuable or necessary. Therefore, the "Amendment Decision" deleted the content related to new evidence in the 2001 "Civil Evidence Provisions." In civil trial practice, except as otherwise provided by law or judicial interpretation, new evidence no longer has a special meaning. Evidence that has not appeared in previous litigation is, in principle, considered new evidence.

Therefore, the 2019 "Civil Evidence Provisions" expands the scope of new evidence in the second instance. From the perspective of fully protecting the parties' right to sue and better ascertaining the facts, in principle, the submission of new evidence in the second instance is no longer subject to the previous restriction of evidence forfeiture if it does not meet the conditions for new evidence. We can conclude that, with the change of the determination rules for new evidence in judicial practice from "evidence forfeiture" to "overdue evidence submission" rules, new evidence can be submitted in both the first and second instance procedures in civil cases, and the evidence submitted in the second instance procedure and the evidence submitted in the first instance procedure will be reviewed according to the same evidence acceptance standards. That is, whether or not the second-instance evidence is accepted is related to the facts of the case, not to whether it existed in the first-instance procedure or earlier. 。

However, the submission of new evidence in the second instance should still follow the "overdue evidence submission" rule from the perspective of litigation economy to avoid being deemed as a surprise evidence submission, thus incurring the risk of evidence forfeiture.

The Civil Procedure Law, judicial interpretations, and the 2019 "Civil Evidence Provisions" all require the timely submission of evidence. Article 68 of the Civil Procedure Law stipulates that parties should provide evidence in a timely manner for their claims. The people's court shall determine the evidence that the parties should provide and the deadline based on the parties' claims and the circumstances of the case. If the parties have difficulty providing evidence within the deadline, they may apply to the people's court for an extension. The people's court shall appropriately extend the deadline based on the parties' application. If the parties provide evidence after the deadline, the people's court shall order them to explain the reasons; if they refuse to explain the reasons or the reasons are untenable, the people's court may, depending on the circumstances, not accept the evidence, or accept the evidence but issue a warning or fine.

The judicial interpretations of the Civil Procedure Law and the "Civil Evidence Provisions" provide detailed regulations on the time of evidence submission, written applications for extensions, evidence exchange, etc., and refine the acceptance situations stipulated in the Civil Procedure Law. Overall, they still fully protect the parties' legitimate right to present evidence.

This also suggests that when organizing evidence, attention should be paid to the time of evidence submission. In cases of difficulty in providing evidence or insufficient time, timely communication with the court and submission of a written application to extend the evidence submission deadline are necessary to better protect one's own rights and interests.

Lawyer Profile

Chen Xia

Heilongjiang Dadi Law Firm

Director

Chen Xia, LLB from Nankai University, LLM from Heilongjiang University, is the director of Heilongjiang Dadi Law Firm. With 32 years of practice experience and profound legal expertise, her practice areas cover finance, securities, private equity financing, mergers and acquisitions, construction and real estate, PPP projects, state-owned enterprise reform, transportation engineering, and more.

She currently serves as a member of the Construction and Real Estate Business Committee of the All-China Lawyers' Association; a member of the Heilongjiang Provincial Committee of the Chinese People's Political Consultative Conference; a member of the Heilongjiang Provincial Committee of the China Democratic National Construction Association; director of the Social and Legal Affairs Committee of the Heilongjiang Provincial Committee of the China Democratic National Construction Association; an arbitrator of the Harbin Arbitration Commission; an arbitrator of the Korea Commercial Arbitration Commission; an arbitrator of the "Belt and Road" Wuhan Arbitration Institute; a member of the Heilongjiang Provincial People's Government Administrative Review Expert Committee; a member of the Harbin Municipal People's Government Administrative Review Expert Committee; and was named among the "Top 60 Construction Lawyers in China" by ENR magazine and Construction Times; and an arbitrator of the Wuhan Arbitration Commission.

Shen Zixiao

Heilongjiang Dadi Law Firm

Lawyer

Shen Zixiao graduated from the Law School of Zhengzhou University and is currently a full-time lawyer at Heilongjiang Dadi Law Firm. Since practicing law, she has always adhered to the principle of being responsible to clients. She focuses on the areas of major civil and commercial litigation agency, contract disputes, and labor dispute resolution. She has handled many major criminal cases involving organized crime and evil, achieving good defense results. She provides long-term legal services to listed companies and always insists on using professional knowledge to maximize the protection of the legitimate rights and interests of the parties involved.

Past Review

Dadi Honor | Dadi won the 2024 Commercial Law Excellent Law Firm Award (Regional Award)

Dadi Honor | Lawyers Liu Jun and Zhao Jingyu of Dadi Law Firm were selected into the Heilongjiang Provincial Foreign-related Lawyer Talent Pool

Dadi Honor | Partner Zhao Jingyu of Dadi was awarded the title of "Lixin Society 2024 Bankruptcy Field Brand Star: Powerful Lawyer"

Dadi Honor | Dadi Law Firm's projects were included in the LegalOne 2023 Outstanding Transactions and Cases List in China

Dadi Performance | Our firm was appointed as the long-term legal counsel for the Harbin City Central Branch of China Life Property Insurance Co., Ltd.

Dadi Performance | Our firm was once again appointed as the long-term legal counsel for Harbin Jiuzhou Group Co., Ltd.

Dadi Performance | Our firm was appointed as the legal counsel for Beidahuang Grain Group Co., Ltd.

Dadi Performance | Our firm was appointed as the long-term legal counsel for multiple subsidiaries of Greenland Group's Northeast Business Department

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