“Q&A on the Reform of Separating Complicated Civil Proceedings from Simple Ones (I)” has been implemented from April 15 2020
From December 29, 2019, according to the “Decision of the Standing Committee of the National People’s Congress on Authorizing the Supreme People’s Court to Carry out the Pilot Program for the Reform of Separating Complicated Civil Proceedings from Simple Ones in Some Areas”, the 2 years period of the pilot program was kicked off. The pilot program is aimed to optimize judicial confirmation procedures, improve the petty lawsuit procedure, improve summary procedure rules, expand the scope of application of the sole-judge system, and improve electronic litigation rules.
After several months of implementation, recently, the Supreme People’s Court has released the “Q&A on the Reform of Separating Complicated Civil Proceedings from Simple Ones (I)” (hereinafter referred to as “Q&A (I)”), in which the Supreme People’s Court has stipulated guidance on dealing with some problems found in practice. For all those articles, the guidance on the electronic litigation rules deserves more attention from the following aspects:
1. The application of electronic litigation
The the application of electronic litigation shall be determined by 4 factors instead of the type of cases.
(a) To ensure the application shall have a legal basis. Besides those cases which are required an on-site litigation by relevant laws and regulations, for the rest cases, if the court could guarantee a fair procedure, the court could explore relevant rules on improving the electronic litigation based on the new system and requirements of the electronic litigation.
(b) To respect the parties’ choice. If a party refuses to choose the electronic litigation with reasonable reason, in principle, the electronic litigation shall not be applied. In addition, if parties have chosen the electronic litigation, then the electronic litigation must applied except a party has provided a reasonable reason to change the choice.
(c) To match the actual situation of the case. The court shall consider the nature, characteristics and types of evidence of individual cases. Normally, if the participants of litigation are too many, and the evidence is complicated, then it is not appropriate to apply the electronic litigation.
(d) To meet the technical requirements. If some courts fail to meet the technical requirements, then the electronic litigation shall not be applied.
2. The validation of electronic evidence
The “Measures for the Implementation of the Pilot Program of the Reform of Separating Complicated Civil Proceedings from Simple Ones by the Supreme People’s Court” and “Several Provisions of the Supreme People’s Court on Evidence for Civil Actions (Amended in 2019)” have clearly stipulate the validation of electronic evidence, however, in practice, some courts hold the opinion that because the electronic evidence could be deemed as the original copy, and three factors of electronic evidence could been identified. The “Q&A (I)” makes it clear that the authenticity of the electronic evidence could be identified, but the substantive authenticity shall be verified.
3. The rules on reviewing electronic materials
The “Q&A (I)” divides electronic materials into 3 categories, and sets different review rules.
(a) For simple materials, such as the material provided by a third party, then the material could be verified online; or the material has attached an authorization letter, then the court could verified by phone.
(b) For the materials occupied by both parties, if there is a not dispute, then the court could verify directly.
(c) For the materials occupied by a single party, if such material is made by a single party without a standardized format, it is significant to the case, and the court could not verify the authenticity, then the court could request the single party to provide the original copies.
In addition, the “Q&A (I)” has also stipulated practical guidance on the judicial confirmation procedures, the petty lawsuit procedure, summary procedure rules, the sole-judge system, and electronic delivery.