Let the Evidence Speak: How to Collect and Submit Evidence?

2012-11-23 12:43:47 BJT

Let the Evidence Speak: How to Collect and Submit Evidence?

 

In hearing the case, the court shall take facts as the basis and law as the criteria and the facts could only be proved by evidences.

 

How to Collect Evidences?

 

The plaintiff and defendant shall collect ample evidence pursuant to his/her allegation and provide such evidences to the court. Evidences include documentary evidence, physical evidence, witness¡¯ testimony, audio-visual recordings, statement of a party, expert opinion and transcripts of survey. For detailed information on how to collect evidence, you may refer to our official website www.gzhsfy.org

 

Evidence shall be collected by legal means, or the court will not admit such evidence for the decision of the case. In case any party counterfeits or destroys evidence, produces false evidence or prevents any witness from bearing witness, instigates, bribes or threatens other people to give false testimonies, or threatens, insults, inflicts violence upon, harasses, or takes revenge against any witness, authenticators or inquisitor or their close relatives, shall be deemed as in violation of laws, and shall be imposed a fine or detention based on the circumstances. If a crime is committed, the court shall investigate them for criminal liabilities according to law.

 

Where the evidence is the archive files kept by relevant organs of the state and must be accessed by the court upon authority, or concern state secrets, commercial secrets or personal privacy, or the evidence cannot be collected by the parties concerned due to objective reasons, the relevant parties concerned may apply to the court for investigation upon and collection of evidence.

 

Under circumstances where there is a likely-hood that evidence may be destroyed, lost or too difficult to obtain later on, parties concerned may apply to the court for the preservation of the evidence.

 

What should be noted is that the application for collection and preservation of evidence shall be submitted in writing and no later than 7 days prior to the expiration of the term for producing evidence.

 

 


 

How to Submit Evidence?

 

1.        One shall peruse the Notice of Producing Evidence and submit the evidence within the time period for producing evidence as prescribed by the court.

 

After accepting the case, the court may deliver a Notice of Producing Evidence to the parties concerned respectively, informing the concerned parties about the distribution of burden of producing evidence for both parties and requirements for producing evidence, circumstances under which the parties concerned could apply to the court for collection of evidence, the time period for producing evidence prescribed by the court pursuant to the facts of the case, and harmful consequences for failure to produce evidence within the prescribed time period. Therefore, parties concerned shall first peruse such Notice of Producing Evidence.

 

In the Notice of Producing Evidence, the court would prescribe a time limit for producing evidence and the parties concerned shall submit the evidence to the court within this prescribed time limit. Otherwise, it would be deemed that the parties concerned had waived his/her rights to produce evidence. Evidence provided beyond the time period for producing evidence without justified reasons shall not be cross-examined and would not be admitted by the court.

 

In case any party concerned really has difficulty in producing evidences during the time period for producing evidence, it may apply to the court for extending the period during the prescribed time period. It may delay the producing of evidence upon the approval of the court.

 

2.        An evidence list is required when providing evidence to the court. The parties concerned shall categorize and number the evidential materials submitted thereby, make a brief specification of the sources of the evidential materials, the object and content of proof, affix their signatures and mark the date of submission and submit as many copies according to the number of opponent parties concerned. Explicit marks should be made for evidence concerning state secrets, commercial secrets or personal privacy.

 

3.      Evidence submitted to the court shall be in line with the following requirements:

 

(1)   The originals of the documentary evidence shall be submitted. In case it is really difficult to submit the originals of the documentary evidences, parties concerned may submit duplicated copy, photo or excerpt that is checked as consistent with the originals. Explanatory documents shall be made for statements, drawing, accounts, professional technical material, science and technology literature and other documentary evidence.

(2)   In respect of the physical evidence, the original object shall be submitted. Where it is really difficult to submit the original object, the duplicated object that is checked as consistent with the original object, or the photo or video, etc. that can prove the physical evidence could be submitted. If the original object is a genus in a large quantity, only a part needs to be submitted.

(3)   With regard to computer data and audio-visual materials, the original carrier of such materials shall be submitted. Where it is difficult to submit the original carrier, the duplicate may be submitted. The method of production, time of production, place of production, producer and object of proof shall be indicated along with the evidence submitted thereby. Audio materials shall be submitted along with the written records thereof.

(4)   Along with the submission of witness¡¯ testimony, the name, age, gender, profession, address and other basic information of the witness shall be stated and identity certificates such as the identity card of the witness shall also be provided. The witness¡¯ signature shall be affixed to the testimony and the date of provision of testimony shall be indicated. The application for having witness to appear at court shall be filed ten days before the time period for producing evidence expires and shall be subject to the approval of the court.

(5)   Conclusion of expert evaluation shall bear the information about the entrusting party, matters for expert evaluation, relevant materials submitted to the expert evaluation agency, basis for expert evaluation, science and technology means as adopted, instructions about the qualifications of the expert evaluation agency and the experts, as well as the signature of experts and the seal of the expert evaluation agency. For a conclusion of expert evaluation obtained by analysis, the analysis process shall be indicated.

(6)   For evidence collected from the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan region and from outside the territory of the People¡¯s Republic of China, its source shall be explained and certification formalities shall be conducted according to the relevant provisions.

(7)   Documentary evidences in a foreign language must be submitted with Chinese versions and shall bear the seal of the translation agency or the signature of the translator.

 


 

How to Exchange Evidences

 

For the purpose of understanding the case, the court will sometimes arrange parties to have evidence exchanged before a court hearing. When the court proceeds to evidence exchange, the parties are required to well prepare the evidence as required. The evidence shall be categorized and numbered and an evidence list with number, description, facts proven and corresponding page number shall also be prepared. Copies of evidence shall be prepared according to the number of opponent parties. For instance, if the number of opponent parties is two, three sets of evidence shall be prepared to submit to the court. In addition, the original copy of evidence, if available, shall be brought in to court for verification.

 

When attending evidence exchange, parties shall bring documents, such as ID card, POA or attorney¡¯s license, to prove their identity as required also in attending court hearing. During the course of evidence exchange, parties may recognize or challenge or even apply for adducing new evidence against the evidence adduced by the opponent party.







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