Whether the Testimony would be Valid, if the Witness fails to appear in Court?

Company A sued Company B for default. Company B provided a written testimony from its warehouse staff, Chen, in which Chen said that he had not received any relevant goods, and the signature of the recipient on the receipt was not his. However, Chen did not appear in the court. Company A claimed that because the witness failed to appear in court, his testimony should not be deemed as a valid evidence.

Then, if a witness fails to appear in court, whether his/her testimony shall be deemed valid? The validness of such testimony shall be decided case by case. Overall, a testimony could be divided into 2 categories. The testimony provided by a party, and the testimony collected by the court.

Firstly, let’s analyze the testimony provided by a party. Article 72 of the “Civil Procedure Law”, prescribes, any entity or individual which knows any circumstances of a case shall have the obligation to testify in court…….. In addition, Article 73 prescribes, upon notice by a people’s court, a witness shall testify in court. Under any of the following circumstances, a witness may testify by written testimony, audio-visual transmission technology, audio-visual recordings or any other means as permitted by a people’s court: (1) The witness is unable to appear in court for health reasons…….(4) The witness is unable to appear in court for any other justifiable reason. Furthermore, Article 69 of the “Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures” prescribes, the following evidences may not be used independently as the basis for affirming the facts of a case:…… 5. The testimony of a witness that fails to appear in court to bear witness. In view of the above law and judicial interpretation, from the perspective of litigation, if a witness fails to appear in court without the permission of the court, then the testimony may not be used independently as the basis for affirming any facts of a case, which means it could be used with other evidence to establish an evidence chain. So such testimony shall not be deemed as invalid directly. For example, in the fifth issue of the Supreme People’s Court Gazette in 2006, Fujian Sanmu Group Co., Ltd. V. the Quanzhou Huangxing Real Estate Development Co., Ltd. on a real-estate pre-sale contract dispute, the Supreme People’s Court pointed out that the witness did not appear in court to testify, nor did it provide the original of the other documentary evidence that it should hold. Therefore, the witness testimony was not accepted.

Secondly, let’s analyze the testimony collected by the court. Article 115 of the ‘Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law” prescribes, where the court collects the relevant documentary evidence, it could require the preparer of the evidentiary material to appear in court as a witness. In view of this, if a court collects testimony, then the witness does not have to appear in court, which means, the court has it own discretion on deciding whether such witness shall appear in court. But Article 115 has further prescribes, a preparer of the evidentiary materials refuses to appear in court without justified reasons, the evidentiary materials shall not be deemed as the basis for deciding any facts of a case. So, if a court requires such witness to appear in court, but the witness refuses to appear in court without justified reasons, then even such testimony is collected by the court, it still would be not accepted. The fact is that such circumstance is very rare in practice.

For the party which provides testimony evidence, in order to guarantee the testimony could be accepted, it is highly recommended to invite the witness to appear in court. If the witness could not make it due to various reasons, the party shall try to collect other relevant evidence, and establish an evidence chain.