First, in China, briefings and arguments from either party involved in a proceeding may be submitted to the judges during the hearing within tight time constraints. Consequently, parties may be surprised when new documents or requests appear during the hearing, and lawyers must be ready to deal with unexpected new information or circumstances on the spot. In most Western jurisdictions such information or requests must be submitted at certain times beforehand so each party can adequately prepare for the hearing. This Chinese litigation practice may create uncertainty for the parties involved, hindering their capacity to represent themselves to the best of their ability.
China also has unique rules regarding evidence that can be allowed in civil litigation procedures. In order to support a claim, a party must bring forth the documentary evidence needed in its original form; no copies are allowed. As for witness testimony in civil proceedings, requests to hear a witness can be submitted for the first time during the hearing. In practice, there are two main problems with this policy. First, courts do not take a witness testimony as seriously for fear that the witness may be unduly influenced by either party, and thus will provide a biased testimony. (This is very likely in China because of the importance of personal connections. In fact, a witness’ personal relationship network – e.g. employer, work unit directors, co-workers, friends, relatives, etc. – may bring them closer to one of the parties’ interests.)
Additionally, both sides are allowed to interrogate the witness; after the party that calls the witness finishes questioning, the other party is also allowed to counter-interrogate. Counter-interrogation poses a risk to the party calling the witness, as the witness may reveal information unfavorable to that party. Thus, Chinese civil litigation includes some flexibility in admitting oral evidence during a hearing, but it is usually not well regarded by parties or judges.
This kind of flexibility also extends to other areas of civil litigation proceedings. Specifically, when all evidence is submitted, judges can still permit parties to adjust their claim or call for new evidence. Thus, sudden changes can be made to the content of a claim or counterclaim as well as any evidence supporting either side.
In light of the above, the following measures (among others) may be useful when facing civil proceedings in China:
- Retrieving copies of all the supporting documents submitted by the claimant to the court as soon as possible;
- Meeting the judge in charge of the case (this is legal and it is not required to inform the other party). The purposes of this meeting are: (i) to understand which are the judge’s main concerns (e.g. lack of evidence or law interpretation issues), and (ii) to obtain some intelligence on who the other stakeholders are in the case in question. Stakeholders may include: local government officials, senior judges, or employee representatives. All these stakeholders could potentially have an impact on the judge’s decision.
- Being alert – your counterparty and the other stakeholders will very likely approach the judge before and also after the hearing(s) to discuss the case. It is important to be alert to understand whether the judge might be subject to any undue influence or pressure and, if necessary, be ready to take additional steps to protect your legitimate rights and interests.