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

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" with which both sides clash. The judge uses it to determine the facts, apply the law, and make a just judgment. Accurate and sufficient evidence can strongly support a party's claims, tilting the scales of victory 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.

Rule I for Determining "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"

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 that meets the conditions of 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 position 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 concerning new evidence in the 2001 "Civil Evidence Provisions". In civil trial practice, except as otherwise specifically 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 restricted by the previous condition of not meeting the requirements for new evidence, which would result in evidence forfeiture. We can conclude that with the change of the rules for determining 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 should still follow the "overdue evidence submission" rule from the perspective of litigation economy to avoid being deemed as a surprise evidence attack, 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 should be carried out to better protect one's own rights and interests.

Lawyer Profile

Chen Xia, Lawyer, Bachelor of Laws from Nankai University, Master of Laws from Heilongjiang University, Director of Heilongjiang Dadi Law Firm. With 32 years of practice experience and senior legal expertise, her practice areas cover finance, securities, private equity financing, mergers and acquisitions, construction real estate, PPP, 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 one of "China's Top 60 Construction Lawyers" by ENR magazine and Construction Times; and an arbitrator of the Wuhan Arbitration Commission.

Shen Zixiao graduated from the Law School of Zhengzhou University and is currently a full-time lawyer at Heilongjiang Dadi Law Firm. Since her admission to the bar, she has always adhered to the principle of being responsible to her clients. She focuses on the agency of major civil and commercial litigation, contract disputes, and labor dispute resolution. She has handled many major 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.