Release Act (2001) 33
On December 6, 2001 the Judicial Committee meeting of 1201, since April 1, 2002 has come into effect.
To ensure that the people's court correctly identified the facts of the case, just and timely trial of civil cases, protection and facilitate the parties to exercise right of action. According to the "PRC Civil Procedure Law" (hereinafter referred to as the "Code of Civil Procedure") and other relevant laws and in light of civil trial experience and the actual situation, the provisions are stipulated.
One, the parties proof
The first to the people's court of the plaintiff or defendant, the prosecution filed a counter-claim, it should be accompanied by corresponding conditions for prosecution of evidentiary material.
The second right of the parties made the claim based on the facts or refute the claim by the other side based on the fact that the responsibility to provide proof.
There is no evidence or insufficient evidence to prove the fact that the parties stand, that bears the burden of proof from the parties to bear negative consequences.
The third of the people's court should note the burden of proof to the client's requests and legal consequences, prompted the parties within a reasonable time active, comprehensive, accurate, honest and complete proof.
The parties due to objective reasons can not collect their own evidence, the people's court may apply collected in the survey.
Following the 4th of infringement proceedings, in accordance with the following provisions of the onus :
(1) new product manufacturing process patents arising from the patent infringement litigation, the same product manufactured by units or individuals to its product manufacturing process is different from the patented methods bear the burden of proof;
(2) high risk operations cause damage to the infringement proceedings by the perpetrator on the victim intentionally causing damage to the fact that the burden of proof;
(3) environmental damages caused by litigation, by the perpetrator on the legal provisions of the exemptions and their behavior and the damage between the results of a causal relationship between the burden of proof;
(4) the building or other facilities and buildings on hold, said Liu collapsed, falling, falling to cause damage to the infringement proceedings, by the owners or their managers without the burden of fault;
(5) to keep animals cause damage lawsuit by animal keepers or administrators on the victim is at fault or the third person is at fault bear the burden of proof;
(6) due to defective products cause harm tort litigation, products from the producer on the legal provisions of the exemptions bear the burden of proof;
(7) risk behavior common cause damage to the infringement proceedings, the implementation of risky behavior on their behavior and the damage between the results of a causal relationship between the burden of proof;
(8) the conduct of medical tort litigation, medical institutions and medical acts damage results between causal relationship does not exist and there is no medical fault bear the burden of proof.
The law of tort litigation is the onus of special provisions, those provisions.
The fifth of the contract dispute cases, advocates the establishment of a contractual relationship and the effect on the party contract and the fact that the entry into force of the burden; Contract changes advocated lifting the termination, revocation of a party to the contract arising from changes in the relationship between the facts bear the burden of proof.
The fulfillment of the contract controversy, with the parties to fulfill their obligations bear the burden of proof.
Acting on the right controversy by advocating a proxy party should bear the burden of proof.
The sixth of the dispute in the labor dispute cases, expelled from the employing units, removal, dismissal, terminating labor contracts, to reduce labor remuneration, length of service workers calculated decisions in labor disputes occur, employers should bear the onus of proof.
The seventh of the law does not specify that under these provisions and other judicial interpretation can not bear the burden of proof, according to the People's Court of fairness and honesty credit, the competent parties to such factors as the burden of proof to determine bear the burden of proof.
The eighth of the proceedings, a party to the other party, the statement said the facts of the case clearly recognized by the other party without proof. But identity except in cases.
A party statement on the fact that the other party has neither acknowledged nor denied by the trial fully describe and inquiry, its still clearly in the affirmative or negative, such as the recognition of the facts.
The parties participated in the proceedings through an agent, the agent's recognition as a recognized party.But without special authorized agent of the facts admitted directly lead to the recognition of each other except for the claim; But the presence of the parties recognized by its agents not deny that said, as the parties recognized.
Parties in court before the end of the debate on the withdrawal of recognition by the other party agrees, or there is sufficient evidence to prove the act of recognition is coerced or a major misunderstanding of made - and inconsistent with the facts, not absolve the other party the burden of proof.
Article 9 of the following facts, the parties without the burden of proof to prove
(1) a well-known fact;
(2) theorem and the law of nature;
(3) Under the provisions of the law or the known facts and everyday experience can be presumed rule out another fact;
(4) of the people's courts have legally taken effect by the magistrate confirmed the facts;
(5) for the commencement of arbitration ruling body confirmed by the facts;
(6) instruments for the effective notarized proved by the facts.
The preceding paragraph (1), (3), (4), (5), (6), the parties have sufficient evidence to the contrary except for the overthrow.
The 10th of the parties to the people's court to give evidence, should provide originals or the original. For his Original preserve evidence, or the provision of the original originals, the original is indeed difficult by the people's courts can provide the same check copies or replicas.
11 parties to the people's court to provide evidence in the People's Republic of China in the areas of formation the evidence should be notarized by the host authorities to be proved by the People's Republic of China Consulate in the country to be certified or to comply with the People's Republic of China, made by the host country of the provisions of the treaty permits prescribed procedures.
Parties to the evidence provided by the People's Court of the Hong Kong, Macao and Taiwan regions formed, it should be to fulfill the certification process.
Article 12 of the parties to the people's court for the certificate or other instrument Foreign descriptive information, it should be accompanied by a Chinese translation.
Article 13 of the parties involved undisputed national interests, social and public interests or other people's legitimate rights and interests of the fact that the people's court may order the person to provide relevant evidence.
The 14th of the parties should submit their evidence for the basis of classification numbers. The right source material evidence to prove that targets and contents for the summary statement, signed and sealed, with the submission date, and the other parties in accordance with the number of copies made.
Party People's Court received the evidence, should provide a receipt. Evidence indicate the name, number of pages and copies and the time of receipt, usually signed or sealed.
Two, the people's courts of evidence collected in the survey
The 15th of the "Code of Civil Procedure" Article 64 stipulates that the "people's court hearing that the case requires evidence", which means the following circumstances :
(1) involved may be detrimental to national interests, social and public interests or other people's legitimate rights and interests of the facts;
(2) involving ex officio additional parties to discontinue proceedings, the end of the proceedings, and other entities to evade controversial matters unrelated to the procedure.
Except for the 16th of the provisions of article 15 of the cases, the people's court investigation to collect evidence, it should be in accordance with the party applications.
In keeping with the 17th one of the following conditions, the parties and their attorneys can apply for the People's Court of evidence collected in the survey :
(1) for the evidence collected in the survey belong to the state authorities to preserve and to the people's court under the terms of the transfer of the dossiers;
(2) involving state secrets, business secrets and personal privacy;
(3) The parties and their attorneys did not because of objective reasons for their own collection of other materials.
The 18th of the parties and their attorneys for the people's court investigation to collect evidence, should submit a written application. The application should contain the investigation that person's name or unit names, addresses to the basic situation, to investigate the collection of evidence, investigation by the People's Court of the reasons for gathering evidence and to prove that fact.
The 19th of the parties and their attorneys for the people's court investigation to collect evidence, not later than before the expiry of the burden of proof on the 7th.
The people's court of the parties and their attorneys not to allow the application and should be subject to litigation or its agents to serve notice. The parties and their attorneys could receipt of the notice on the 3rd day after the date on the admissibility of the application within the People's Court in a written application reconsideration. The people's courts should review the receipt of the application, within five days to respond.
20 investigators collected documentary evidence, it could be the original, and can also be by check or certified copies of copies. Yes copy or copies of the transcripts of the investigation should be explained and evidence of the source.
Article 21 investigators collected evidence should be the original. Investigation provided the original is indeed difficult to provide copies or photographs. Provide copies or photographs, transcripts should be in the investigation of the evidence indicated.
Article 22 investigators to collect computer data or audio, video and other audio-visual materials, should be required by the person to provide relevant information to the original carrier. For the original vector is indeed difficult, it can provide a copy. Provide a copy of the investigating officers in the investigation transcripts should indicate its source and after production.
Pursuant to Article 23 of the parties, "civil law" of the 74th People's Court for the preservation of evidence, not later than before the expiry of the burden of proof on the 7th.
Client applications to preserve evidence, the people's courts can be required to provide appropriate security.
The legal and judicial interpretation stipulates v. ago to preserve evidence, in accordance with its provisions.
The 24th of the people's courts to preserve the evidence, according to the specific situation that attachment, garnishment, taking pictures, sound recordings, films, replication, authentication, inquisition, production methods such as transcripts.
People's courts to preserve the evidence, may require the parties to the proceedings or agents scene.
Applications for the 25th identification of the parties, the burden of proof should be submitted within the time limit. In accordance with the provisions of Article 27 of the cases, the parties apply for re-identification of acceptance.
Identification of the need to bear the burden of proof for the party, the People's Court within a specified period not to identify justification for identification or not to advance fees or refuse to provide relevant materials, causing controversy on the fact that the case could not be concluded by identifying identified, it should be that the facts do not bear the burden of proof can the legal consequences.
The 26th of the parties identified by the people's court for consent from the parties in consultation with the identification of eligible identification, identification of personnel. Should negotiations fail, the people's court appointed.
On the 27th of the parties commissioned by the People's Court identified the department's conclusions have objections to apply for re-identification of evidence proving the existence of one of the following cases, the people's courts should be permitted.
(1) identification of bodies or persons not identified with the identification of eligible;
(2) identification procedures serious violations of the law;
(3) Identification obvious conclusion based on inadequate;
(4) Following the cross examination found no evidence of other cases.
Right flawed conclusions can be added through the identification, re-connection or connection methods added to the solution, not another autopsy.
The 28th of the party itself commissioned the expert conclusions, the other party has sufficient evidence to rebut and apply for re-accreditation, the people's courts should be permitted.
The 29th trial of the officers to identify who issued the identification, should review whether the following elements :
(1) The client names or names and identification of the commission;
(2) commissioned the identification of material;
(3) Identification of the basis and the use of scientific and technological means;
(4) identification process;
(5) clear conclusions;
(6) Identification of professionally qualified people;
(7) Identification of staff and accreditation body stamped signature.
Inquisition of the 30th People's Court or the scene evidence, the transcript records should inquisition of the time, place and inquisition, the scene, after the inquisition, inquisition by the results, the presence of signatures or seals. Drawing for the site map should be drawn with the time, location, mapping the names, identity and so forth.
Extracts of the 31 units produced by the facts of the case and relevant documents, materials should indicate the source and stamping production units or custodian of the seal unit extracts and other investigators should be extracted in pieces signed or sealed.
Extracts of documents, materials should maintain the integrity of content accordingly, not out of context.
Third, the burden of proof and the time to exchange evidence
32 of the accused should reply before the end of the period to submit written reply and clarify its request and the plaintiffs based on the facts and reasons views.
Article 33 should be sent to the People's Court accepted the case notices and notices at the same time responding to the parties served notice of proof. Proof notice shall set forth the allocation of the burden of proof in principle with the requirements may apply to the people's court evidence for the investigation of cases, the people's courts under the circumstances of the case, the burden of proof specified period and to provide evidence of overdue legal consequences.
Proof period can be a consensus by the parties and approved by the People's Court.
The burden of proof by the People's Court designated period, a designated period of not less than 30, since the party received notice of the case and the admissibility of a notice responding to the beginning of the next day.
The 34th of the parties should be proof in the people's court within the deadlines to submit evidence, the burden of proof parties not submitted within the time limit, the burden of proof as to give up rights.
For parties of late filing of evidence, not people's court hearing in connection organizations. But the other party in connection with the exception of consent.
Parties to increase, change or claim filed counterclaims, the burden of proof should be made before the expiry date.
Article 35 proceedings, the parties advocating the legal relationship of the nature or validity of the civil and people's courts under the facts of the case found inconsistencies is not subject to the provisions of Article 34 of the restrictions, the people's courts should inform the parties may change the claims.
The parties claim the change, the people's courts the burden of proof should be re-designated deadline.
In the 36th proof of the parties within the deadline to submit material evidence is indeed difficult, the burden of proof should be in the people's court within a period of application for extension of the burden of proof, by the people's court permission, the burden of proof may be appropriately extended period. The parties to extend the period of submission of proof of evidence for the still difficult, can apply for an extension again, whether to allow a decision by the People's Court.
The 37th of the application by the parties, the People's Court may organize parties before the trial exchange of evidence.
The people's courts or evidence of more complex problems in the case, the parties shall organize the reply period expires, the exchange pre-trial evidence.
The 38th of the exchange of evidence by the time the parties consensus and approved by the People's Court, also designated by the People's Court.
Organization of People's Courts parties on the exchange of evidence, the date of the exchange of evidence of proof period expires. Client application for extension by the people's court to allow the burden of proof, evidence exchange day deferred accordingly.
Article 39 of the evidence in the trial should be exchanged under the auspices of staff for.
The evidence exchange process, the judges on the parties without objection the fact that the evidence should be recorded in the volume; The object of evidence, in accordance with the need to prove the facts in the record of volumes and documenting the grounds for objection. Through the exchange evidence, and identify the parties controversial issues.
The 40th of the parties received the other exchange of evidence and rebut submit new evidence, the people's court shall notify the designated time for the exchange.
The exchange of evidence generally not more than twice. But the major and difficult and complex case in particular cases, the people's court deems it necessary to exchange evidence again with the exception.
Article 41 of the "Code of Civil Procedure," the first of the 125 provisions of the "new evidence", which means the following circumstances :
(1) the first trial proceedings of the new evidence includes : proof of the first clients after the expiration of newly discovered evidence; The parties do not due to objective reasons for the deadline to provide proof that the people's court's permission, the extended period of time is still unable to provide evidence.
(2) procedures for the second instance of new evidence, including : the first instance court after the newly discovered evidence; Proof parties in the first instance before the expiry of the People's Court for investigation and collection of evidence without permission, the second-instance court that should be reviewed to allow for the parties and in accordance with the transfer of evidence.
Article 42 procedures parties in the first instance to provide new evidence, it should be held the first hearing before the trial or when.
Parties at the second trial proceedings provide new evidence, in the second trial should be held before the trial or when; No trial of second instance, people's courts should be designated within the period.
The 43rd proof of the parties after the expiration of the evidence is not new evidence, the people's court rejected.
Party's Court for an extension to allow the burden of proof, not because of objective reasons for the permit within the time limit provided, without hearing the evidence may lead to a magistrate obvious injustice, and their evidence can be considered as new evidence.
The 44th of the "Code of Civil Procedure," the 179th of the first paragraph (a) of the "new evidence", which means the trial court after the end of the newly discovered evidence.
The parties retrial procedures provided new evidence, the application should be made at the retrial.
The 45th party of new evidence, the people's court should notice to the other party within a reasonable time or advise the burden of proof.
Since the 46th of the reasons the parties within a specified period of proof, in which case during the second trial, or a retrial because of new evidence by the People's Court or commuted the retrial, the trial magistrate is not wrong refereeing. The party requesting new evidence of the other party the burden of this increase in travel, loss of working time, witnesses, litigation and other reasonable costs and the resulting expansion of the direct losses, the people's courts should be supported.
Four connection
The 47th of the evidence should be produced in court by the parties in connection. In connection with the evidence, not a finding based on the facts of the case.
Parties in the process of exchanging evidence recognized and recorded in the volume of the evidence in the trial court stated, as determined in accordance with the facts of the case.
Article 48 involving national secrets, business secrets and personal privacy or other legal provisions should not confidential evidence in the trial in connection open.
The 49th of the documentary evidence, the physical evidence and audio-visual materials for cross examination, the subject has the right to require the production of evidence or the original Original.
But one of the following exceptions :
(1) to produce the original Original or indeed difficult by the people's court permission to produce a copy or copies;
(2) Original or the original no longer exists, but there is proof copy, with the original or a copy of the original agreement.
The 50th of the connection, the parties should focus on the veracity of the evidence, relevance, legitimacy, power against evidence and prove the availability of power size, challenge, and rebuttal statement.
Article 51 Testimony by the following order
(1) the plaintiff to produce evidence that the defendant and a third in connection with the plaintiffs;
(2) the defendant to produce evidence that the plaintiff, the third person in connection with the accused;
(3) to produce evidence of a third person, the plaintiff, the defendant and the third person to cross examination.
In accordance with the people's courts concluded the evidence collected in the survey, as the applicant party on the evidence provided.
The people's court in accordance with the terms of the evidence collected in the survey should be produced in court to listen to the parties, in respect of the evidence collected in the survey described the situation.
Of the 52 cases with more than two independent claim, the parties concerned can produce evidence for each connection.
The 53rd not correct expression of the will of the people, not as a witness.
Pending certification facts to their age, mental condition or mental health status of the suit or civil capacity and limit capacity, as a witness.
The 54th of the witnesses for the parties, the burden of proof should be on the 10th expiry of the period, and by the people's court permission.
The people's court to client applications be permitted, should be notified before the trial witnesses, and should inform truthfully testify and the legal consequences of perjury.
Witnesses testifying while expenditure by the reasonable cost, provided by the witnesses first party paid by the losing party to bear.
The 55th of the witnesses should testify to accept question.
Witnesses in the people's court organizational exchange of evidence the parties to attend the presentation of evidence, as to testify.
The 56th of the "Code of Civil Procedure," the 70th of the "witness does not appear difficult," refers to any of the following cases :
(1) elderly or disabled frail unable to appear in court;
(2) special positions do not leave;
(3) Special distant road, traffic inconvenience is difficult to appear;
(4) natural disasters such as force majeure because of unavailability;
(5) Other unable to attend the special circumstances.
The above cases, the people's courts permit witnesses to submit written testimony or audio-visual materials, or through the two-way transmission of audio-visual techniques to testify.
Of the 57 witnesses to testify should objectively present their personal perception of the facts. Witnesses for the deaf, can testify to other forms of expression.
The testimony of the witness, not to use speculation, inference or comment on the language.
The 58th of the trial and the parties can ask the witness. Witnesses may not attend the court hearing; Asked witnesses, other witnesses may not be present. The people's court deems it necessary, can confront witnesses.
The 59th of experts should be brought before the party question.
Expert special reasons do not appear, by the people's court permission, the parties will reply in writing to the question.
60th permission of the court, the parties to witnesses, experts, people ask inquisition.
Examination of witnesses, experts, inquisition person shall not use threatening, abusive and inappropriate language guide witnesses and means.
Article 61 The parties may apply to the people's court by 1-2 with specialized knowledge of the court case for special note. The people's court allowed the application, the costs of the party making the application burden.
The trial and the parties can appear on the expertise of staff for questioning.
's Court for permission from their respective parties for the expertise of the cases have problems to confront.
With expertise to identify officers who asked.
Article 62 of the court should be the subject of cross examination credited to the transcripts, which the parties check signatures or seals.
5, the audit finds evidence
Article 63 of the people's court should be able to demonstrate evidence of the facts of the case to make a judgment based on the law.
The 64th trial of the staff should be in accordance with legal procedures, comprehensive and objective examination of evidence, according to the law, to follow the professional ethics of judges, the use of logical reasoning and daily experience, whether that evidence has proved right and to prove that size force independent judgment and the judgment of public grounds and the findings.
Officers of the 65th on a single trial evidence from the following audit finds
(1) whether the evidence originals, the original, copy and the original copy, the original line;
(2) the evidence in this case and whether the relevant facts;
(3) the evidence in the form, source compliance with the law;
(4) the evidence of true;
(5) provide witnesses or evidence, and whether the parties interested.
Officers of the 66th trial of the case, all the evidence, it should be from the evidence and the facts of the case association, the evidence of the link between respect for a comprehensive review of judgment.
The 67th of the proceedings, the parties to reach a settlement or conciliation agreement to the purpose of compromise involved in the recognition of the facts of the case, not in subsequent proceedings against them as evidence.
Article 68 of the violations to the legal rights of others or violate the law prohibited the method of obtaining the evidence should not be determined based on the facts of the case.
The 69th of the following evidence alone is not a finding based on the facts of the case
(A) minors with the age and mental state of considerable testimony;
(2) and one of the parties or their agents interested in the testimony of witness statements;
(3) there are doubts audio-visual materials;
(4) not with the original, a copy of the original check, replicas;
(5) did not justify the testimony of a witness to testify.
The 70th party of the following evidence, the other party but did not raise objections to refute evidence to the contrary, the people's court should recognize their power to prove :
(1) Original or documentary evidence and documentary evidence Original certified copies, photographs, copies of the excerpts;
(2) the original evidence and exhibits the original or certified copy, photos, videos, etc.;
(3) any other evidence to support the legitimate means and the will undoubtedly point audio-visual materials and audio-visual materials or certified copies;
(4) The party for the people's court in accordance with legal procedures for the production of evidence or the scene of the inquisition transcripts.
Identification of 71 People's Court commissioned the department's expert conclusions, he is not sufficient to rebut evidence to the contrary and reasons, it finds proof of their power.
72 of the party's evidence, the other party's approval or the contrary evidence is not sufficient to argue that the people's courts can confirm proof of their power.
One of the parties gave evidence that the other party has raised objections and refute evidence to rebut the other party recognized by the evidence, can confirm refute the strength of the evidence.
Article 73 of the parties to the same facts were cited evidence to the contrary there is no sufficient basis for denying the evidence of other people's courts should be combined with the circumstances of the case, the judgment of the party to provide evidence to prove their ability to provide significantly greater than the other the strength of the evidence and prove that the evidence larger force to be confirmed.
Because of the strength of the evidence led to controversy unable to judge finds it difficult, the people's court should be based on the allocation of the burden of proof rules for sentencing.
Article 74 proceedings, the parties in the complaint, pleadings, statements and representations to the agency recognized in the words of its own adverse facts and the evidence recognized that the people's court should be recognized. But parties estoppel and contrary evidence is sufficient to overturn the exception.
The 75th of the evidence of one party holding unjustified refusal to provide evidence, if the other party advocates the contents of the evidence is not conducive to holding evidence, the presumption can be argued.
The 76th of the parties to their maintains that only statement I can make other relevant evidence, and does not support its claim. But the other party except for the recognition.
77, the People's Court on a number of evidence to prove the same facts, can be identified in accordance with the following principles :
(1) state organs, social groups, according to the terms of the production of certified public instrument proved edge over other general documentary evidence;
(2) of exhibits, archives, expert conclusions, transcripts inquisition or notarized registration of documents to prove its power in general than other documented evidence, audio-visual information and the testimony of witnesses;
(3) Original the strength of the evidence than the general came evidence;
(4) Direct the strength of the evidence than the general indirect evidence;
(5) A witness provided with the right to have relatives or other close relations between the parties favorable testimony to prove its power in general less than the testimony of other witnesses.
The 78th of the People's Court finds the testimony of a witness, the witness through the intellectual status, integrity, knowledge, experience, legal awareness and professional skills of the comprehensive analysis of judgment.
Article 79 should be in the people's court magistrate instruments adopted to clarify whether the evidence reasons.
The parties uncontested evidence, whether to adopt the magistrate reason not to put the instruments.
Six other
The 80th of the witnesses, experts, inquisition of the legitimate rights and interests be protected by law.
Clients or other persons involved in the falsification, destruction of evidence, false evidence to prevent a witness from testifying, instigate, pillars, or coercion to commit perjury of witnesses, experts, inquisition retaliate against the people, in accordance with the "Code of Civil Procedure" Article 102 of the regulations.
Article 81 People's Court applied simple procedure for hearing cases is not subject to the interpretation of Article 32, Article 33 and Article 79, paragraph 3, of the restrictions.
Despite the past 82 of the judicial interpretation is inconsistent with the provisions of this provision to prevail.
The provisions of Article 83 since April 1, 2002 has come into effect. April 1, 2002 has not yet finished, the second trial and retrial will not apply to the civil provisions.
The implementation of the provisions before the end of the trial in civil cases, the parties to violate the provisions of the grounds for a retrial, the people's court will not support it.
After the implementation of the provisions of the retrial admissible in civil cases, the people's courts in accordance with the "Code of Civil Procedure," the 184th of the trial, the application of the provisions.
