By Luo Yanjie

The so-called overseas evidences refer to those evidences developed outside China. In IPR cases, for most right holders are admitted in foreign countries, we have seen a high chance of overseas evidences’ showing up. By Article 11 of Rules on Civil Evidences (the “Rules”):

“If the evidence submitted by the party is developed outside P. R. China, they shall be notarized by the authority where it is collected, and be witnessed by Chinese Embassy or Consulate there; or to be verified through the procedures agreed in the convention between the country and China”.

It could be concluded that all the overseas evidences shall be notarized or witnessed. Then, what is the validity of those with no notarization or witness? You may find our answer in today’s post.

I. The overseas evidence through no notarization or witness is generally to be judged invalid.

Although it is necessarily to be notarized and witnessed by the Rules, we have found no clauses concerning its validity when such evidences are with no notarization or witness. In practices, the non-notarized or witness proofs would be judged invalid, especially those key evidences in the dispute.

For example, in a seaborne shipping contract dispute, the plaintiff is an individual with Chinese nationality and the defendant is a domestic company in China. The dispute is mainly for the transportation of the personal products bought in Europe. Despite in the final judgment that the defendant is negligent in keeping the product and thereby violated the agreement of transportation, the plaintiff’s claim of compensation was refused for the invoice of the shopping was issued outside China, and had no notarization and witness then.

II. A loosen demands on the legal procedure concerning overseas evidences in IPR cases

Considering the severe infringement against IPR in China, and the mandatory procedure of notarization and witness is not fair reasonable, on the symposium of nationwide IPR meeting of courts 2011, the Supreme People’s Court pointed out that the courts of each level around China shall further complete the proof and verification system of the evidences developed outside China, and effort to reduce the difficulty of the evidence presentation and verification, and therefore to improve the efficiency of the proof. And beside special issues of the regulatory notarization and witness, once it could be demonstrated the authenticity of the evidences developed outside China with fair reasonable methods, then the validity of the evidences could be proved in such other methods, thus to avoid any simple judgment of invalidity of the evidence since the lack of notarization and witness.

As published in China IPR News of October, 2012, the essay “Documentary of IPR Protection in China” (note: the link is in Chinese) once again stressed the viewpoint of the Supreme Court. Therefore, we could see an obvious loosen standard on the proof of evidences collected outside China, and that is of no question a good news to the right holder admitted or residing in foreign countries for it spares the complicated procedure of notarization and witness to some extent. But we would also alert the right holder that neither the statement of the Supreme Court nor the essay are the legislature, and for the key evidences in the case, we recommend a notarization or witness by the law, so as to reduce the legal risk to utmost extent.

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You Yunting：86-21-52134918  youyunting@debund.com/yytbest@gmail.com

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