The Several Provisions of the Supreme People's Court on Evidence for Civil Actions (hereinafter as the "New Evidence Rules"), effective as of May 1st, 2020, is the first comprehensive amendment to the evidence rules of the 2002 version (hereinafter as the "Old Evidence Rules"). It is said that the amendment is one big thing in the civil litigation field. There are totally 100 provisions in the New Evidence Rules, which includes six parts, i.e. Burden of Proof by the Parties; Investigation, Collection and Preservation of Evidence; Time Limit for Producing Evidence and the Exchange of Evidence; Cross-examination; Examination and Verification of Evidence; Miscellaneous. The structure and framework still follow the Old Evidence Rules. This article will analyze the application of the new law in labor dispute cases from the perspective of a labor and employment lawyer.
The New Evidence Rules modify, improve and supplement the Old Evidence Rules based on the demands of the judicial practices and the principle of the Supreme People's Court's Interpretations. Except for the New Evidence Rules, the laws and regulations on evidence in civil cases which shall be obeyed include the Civil Procedure Law of PRC, Interpretations of the Supreme People's Court on Application of the "Civil Procedural Law of the People's Republic of China", and other rules stipulated in the specific judicial interpretations and laws. Especially, for the labor disputes, cases shall obey the rules in the Law of the People's Republic of China on Labor-dispute Mediation and Arbitration, e.g. Article 6 and 39; the rules in the Interpretation of the Supreme People's Court of Several Issues on the Application of Law in the Trial of Labor Dispute Cases, e.g. Article 13; and the rules in the Interpretation of the Supreme People's Court of Several Issues on the Application of Law in the Trial of Labor Dispute Cases (III), e.g. Article 9.
The New Evidence Rules have its outstanding points on supplementing and improving the rules of self-confession and expert opinion, adding the regulation on false expert opinion, adding the rule that when a party applies for the other party to provide holding evidence, failure of providing by the other party would result in court's recognition of the party's declaration, improving the application rule of time Limit for producing evidence, and supplementing and improving the rules on party's fact statement and witness testimony and the rules on the electronic evidence. As for the labor and employment field, disputes arise usually at the scenarios of the parties' right and obligations on signature, performance, alteration and termination of the labor contracts. This article will focus the analysis of the three topics: electronic data, witness testimony, and rule of self-confession.
I. Electronic Data
Electronic data, also called as electronic evidence, is one of the eight types of evidence in civil litigation. The labor dispute cases will concern with the company's daily human resources management and employee's routine work. Nowadays, some new technologies introduced at work, e.g. internet, paperless office, big data, cloud computing, blockchain, etc., play a great role in the application of electronic data in the labor dispute cases. Common electronic data in labor disputes include emails, OA system, instant messaging, SMS, etc. Especially, during this epidemic control period, remote working mode is introduced in more and more companies. Problems arise from every aspect, e.g. the signature of the electronic labor contract and daily online work. On the other hand, the human resources management also require the application of electronic data. Therefore, electronic data is very common in labor dispute cases.
i. New provisions on the scope of electronic data
Electronic data was introduced in the Civil Procedure Law in 2012 as one type of evidence. The Supreme Court's Interpretation provided a general rule on it in 2015. The New Evidence Rules classifies the electronic data based on the forms and features and lines the scope. Electronic data shall include the following information and electronic documents: Information published on such online platforms as webpages, blogs and microblogs; Communication information of network application services such as short message, email, instant messaging, communication groups, etc.; User registration information, identity expert opinion information, electronic transaction records, communication records, login logs and other information; Documents, pictures, audio, video, digital certificates, computer programs and other electronic documents; and Other information stored, processed or transmitted in a digital form, which can prove the facts of the case.
ii. New rules on the original copy of electronic data
The New Evidence Rules broadens the types of original copy of the electronic data: a duplicate copy of an electronic data produced by its producer which is consistent with the original copy, or a printout of electronic data or any other visible and recognizable output media, shall be deemed as an original copy of the electronic data. The provisions on electronic data shall apply to audio-visual materials stored in electronic media such as computers.
iii. New provisions on the considering factors of the authenticity and circumstance of induced authenticity
Article 93 and 94 of the New Evidence Rules are new provisions on the considering factors of judging the authenticity of the electronic evidence and the rule of induced authenticity. There are no unified theories or practical guidelines in judging the authenticity of electronic data. The integrity and reliability are the main factors in judging.
Based on the fact that lots of electronic data are used in labor dispute cases, it is necessary for the HR and legal departments to grasp the rules of electronic data, which would help for the lawyer use the electronic data effectively. The electronic data shall be submitted to the court with attention to the identification issue of the involved persons in the evidence. When necessary, the person who offers the evidence or are involved with the electronic data shall prove his or her identity. It's better to notice the possibility and form of evidence submitting and presenting at the hearing. If the electronic data could be presented at the hearing, the device shall be ensured about good function before the hearing. Also, some expert staffs could be invited to the hearing to present the electronic data and give instruction on the technical problems. If there are predictable obstacle for presenting electronic data at the hearing, e.g. technical problems or the relevant staffs could not be present, it is necessary to notarize the electronic data. On the other hand, if the other party recognize the authenticity through self-confession, or the court proves its authenticity through competent witnesses with guarantee, the authenticity would be recognized by the court.
II. Witness Testimony
As one of the eight types of evidences in the civil litigation, the witness testimony plays a substantial role in the civil cases. In the field of labor disputes, witness testimony is also one common and important evidence type. The New Evidence Rules strengthens the inner restraint of witnesses and increases the credibility and integrity of witness testimony through the rules of promising true statement, perjury sanctions, and witness protection.
i. New provisions on witness guarantee and sanctions for perjury
Witnesses should sign a letter of guarantee before giving testimony and read out the letter at the hearing. Witnesses guarantee to make true and complete statements on the facts of the case. If there is a false statement, they are willing to accept the sanctions for perjury. The newly added rules are conducive to the realization of the principle of good faith in civil litigation, strengthen witnesses' inner restraint, and enable them to objectively and fully state the relevant facts of the case.
ii. New provision that witnesses are not allowed to read the written materials prepared in
Witnesses are not allowed to attend court hearings before giving testimony, and they are not allowed to state their testimony by reading out the written materials prepared in advance. The New Evidence Rules puts forward higher requirements for witnesses to testify in court.
iii. New provisions on witness testimony in other ways
Where both parties to a case agree that witnesses may give testimony in other ways and subject to the approval of the people's court, witnesses are not required to testify in court. Witnesses who are unable to testify in court due to health problem, traffic, force majeure or other legitimate reasons may apply for testimony in the form of written testimony, audiovisual transmission technology, or audiovisual materials.
Witnesses testimony appears frequently in labor dispute cases. For example, in order to prove the fact that two employees have fought with each other, the company applies to the present staffs to make testimony; or, in order to prove that the business trip has been approved in advance by the supervisor, the employee applies for the supervisor to make testimony in court. The company in the labor dispute cases shall submit to the court an application for witnesses to testify strictly before the expiry of the time limit of proof in accordance with the legal requirements. Before the witnesses of their own parties appear in court, the company shall prepare in popularizing the law. Especially, the company shall notice the witnesses to truthfully and objectively state the facts that they personally perceive, do not use the speculative, inferential or commentary words, do not read the written materials prepared in advance, etc. In labor dispute cases, witnesses testify is a double-edged sword for the parties sometimes. The company shall fully consider the identity of the witnesses, the relevance of the case and the facts to be proved, and the possible inquiries by the court and the other party at the hearing. The witness testimony shall be comprehensively evaluated and made good use.
III. Rules on Self-confession
Self-confession is the statement or acknowledgment that is unfavorable to one's own side. It is a way the parties exercising their right, which can exempt the other party's burden of proof. Except in certain circumstances, the self-confession could not be revoked or denied by the same party.
i. Expanding the scope of application of self-confession
In the process of labor arbitration and litigation in labor dispute cases, employees and companies often make self-confession. During the process of evidence exchange, inquiry, investigation, or in written materials such as labor arbitration application, statement of claim, defense, statement of attorney for civil action, etc., when the employee or the company states or clearly recognizes the fact that it is unfavorable to their own side, it would be recognized as self-confession. For example, the employee declares in the labor arbitration application that he was absent for five consecutive days because he was ill and has sent the sick leave certificate to the company. Therefore, the company's termination of the labor contract on the grounds of absenteeism is illegal. The employee's statement in the application is self-confess so the company no longer needs to provide proof that the employee has been absent. At the same time, the employee shall bear the burden of proof for being sick and sending a sick leave certificate to the company.
ii. Incorporating the statement of the agent ad litem into self-confess
The New Evidence Rule stipulates first that the statements made by the general authorized agent ad litem could be considered as self-confession, unless for the matters expressly excluded in the authorization letter. However, if a party explicitly denies the self-confession made by the agent ad litem at the hearing, it shall not be deemed as self-confession. In addition, the self-confess by the litigation agent ad item shall be made expressly, which means that the implied self-confess does not apply to the litigation agent ad item.
iii. New exceptions for self-confess
Self-confess rule is not applicable to the matters involving: possible harm to national or public interest; identities; public litigation; a possibility that the litigant has conspired with others maliciously to harm the legitimate rights and interests of others; and procedural matters such as listing additional litigants pursuant to official powers, suspension of lawsuit, termination of lawsuit and abstention. For example, in a labor dispute case involving the review of the employee's working years, if the employee is retiring, his or her working years is directly related to the retirement benefits. As it is involved with the social coordination, the self-confess on the working years by the parties may result in damages to the national and public interest. In this case, the labor arbitration committee and the people's court should conduct the review in accordance with their authorization powers, and the parties should provide evidence on employee's working years.
For both companies and employees, the written or verbal self-confess shall be made more cautiously based on the comprehensive analysis of the case evidences and shall not deviate from the basic truth.
The New Evidence Rule is a comprehensive modification of the old version. Due to words limitations, this article only selects three significant rules commonly occurring in labor dispute cases: electronic data, witness testimony and self-confess. There are also changes in the rule of time limit for proof, overdue proof, new evidence, extraterritorial evidence, and party statements in the New Evidence Rule, etc., which we shall also be familiar with.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.