The legality of evidence, and how to solve the problem in practice

Mainstream opinion in China holds that evidence must satisfy three qualities: authenticity, relevance and legality. Legality arises on the basis of the objective character of the evidence and of its relevance, and is a product of legal regulation, so that all three are indispensable.

1. The concept of legality

In China, legality of evidence means that the form of the evidence, and the person, method and procedure by which it is collected, must conform to law, and that the evidence must pass through the statutory review procedure, emphasis being placed on the legality of the means and methods by which it is collected. "He who asserts must prove" is the most typical summary of the burden of proof in its behavioural sense. It is

a burden of proof that arises unconditionally

in the course of litigation. Every suit involves a claim, and every claim must rest on some assertion; once an assertion is made, the duty to adduce evidence follows.

In concrete terms, evidence must conform to the forms of expression laid down by law, in two respects:

first, the evidence must conform to the general forms of evidence; second, substantive legal rules often impose particular requirements on the evidence that proves certain civil acts.

Evidence may fail to satisfy legality for substantive or for procedural reasons. Substantively, there is self-created evidence and evidence whose constituent elements are incomplete; procedurally, evidence may be obtained outside the litigation procedure or in breach of statutory procedure. The common problem in practice is unlawful conduct in the course of obtaining evidence, where that evidence is of great importance to the case, and this gives rise to the question of

whether to admit it.

A case: the book Civil Litigation Practice for Lawyers gives the example of a plaintiff who was the defendant's employee and claimed overtime pay, relying on an attendance book. The book should have been kept by the defendant and the plaintiff had stolen it from him, so the defendant challenged its legality: first, the plaintiff's method of obtaining the evidence was unlawful;

second, the plaintiff could easily have altered the attendance sheets by hand, so that the content might be untrue. Because the evidence was not lawful, it had to be excluded.

2. The significance of legality

The most obvious significance of the legality of evidence lies in the protection of human rights.

In that respect, establishing legality helps ensure transparency in investigation and evidence-gathering in judicial practice. Since illegally obtained evidence cannot be used in litigation, unlawful gathering that violates human rights, such as obtaining confessions by torture, should greatly decrease, and the protection of human rights in litigation will be taken seriously.

From the point of view of the interests of justice, legality is also of far-reaching significance: a reduction in unlawful evidence-gathering promotes procedural fairness, which protects the parties' rights and at the same time advances the interests of justice.

Legality has a significance not to be overlooked in protecting other social interests and individual rights as well. In administrative litigation, for instance, ensuring the legality of evidence protects the interests of the person subject to administration and at the same time indirectly promotes the fair and smooth conduct of administrative work in China.

3. Choosing between key evidence that is "unlawful"

Civil litigation is in substance a contest between the evidence of the two sides, and civil evidence therefore plays a decisive role: the examination and assessment of it is the foundation of adjudication and the lifeline of the quality of civil trials and of judicial fairness. Article 106 of the interpretation of the Supreme People's Court on the application of the Civil Procedure Law of the People's Republic of China provides:

"Evidence formed or obtained by a method that seriously infringes the lawful rights and interests of another person, violates a prohibitory provision of law, or seriously offends public order and good morals may not be used as a basis for finding the facts of a case." In practice evidence is often obtained unlawfully. In criminal proceedings, evidence obtained by the investigating authorities through torture and the like must be excluded;

in civil proceedings the position is the same, and unlawfully obtained evidence must be excluded.

Sometimes, however, the evidence to be excluded is the key evidence of the case. A common example is a divorce case, in which evidence of a spouse's infidelity sometimes has to be obtained by covert photography or by recording while following the person, and the evidence is then excluded as unlawful. In practice a court should consider the seriousness of the illegality in the method and means used, the size of the lawful interest

that the gathering of the evidence is intended to protect,

the extent of the harm the method causes to the interests of others, and whether the person whose rights were infringed was himself seriously at fault.

First, apply to the court for help in obtaining evidence. Although the Civil Procedure Law establishes a model in which the parties adduce evidence and the court investigates and collects evidence as a supplement, the boundary has not been clear, and in practice courts long and frequently went beyond a neutral stance to collect evidence. The interpretation of Article 64 of the Civil Procedure Law clarifies

the question of the court's investigation and collection of evidence, explaining the scope and conditions of "evidence that the parties and their agents cannot collect themselves for objective reasons" and "evidence that the court considers necessary for trying the case", so that they meet the needs of a market economy and of trial practice and are easier to apply in practice.

An order to produce documents is another way of asking the court to obtain evidence. The 2015 interpretation on the application of the Civil Procedure Law makes special provision for it, though what it provides is not yet complete. An order to produce documents is an order made by the court, on the application of one party, requiring the other party or a third person holding a document to produce it; the order the court

issues is called an order to produce documents. It can ensure that a party collects evidence smoothly.

Second, substitute other evidence. Where the evidence needed can be corroborated in another form and lead to the same conclusion, it may be replaced by evidence obtainable lawfully, and in deciding an actual case a judge cannot refuse to adjudicate because the facts are unclear. In a divorce case, for instance, if infidelity is to be proved, then besides

covert recording and photography there is witness testimony, for example by asking the residents' committee or the neighbours: testimony may replace physical evidence, and where the statements and the testimony corroborate each other the judge will accept the testimony. In accepting evidence the judge also weighs the corroboration between testimony and physical evidence. In one tort case the defendant's

statement and the plaintiff's statement were precisely opposed on one point, and the audio-visual material did not clearly support the plaintiff's case, but several witnesses' testimony corroborated the plaintiff's account, and the judge accepted the plaintiff's statement.

Third, preservation measures. For evidence that cannot be obtained at present but may be destroyed, where the situation is urgent, pre-litigation property preservation or evidence preservation may be used. China's system of evidence preservation in civil litigation is basically established, but pre-litigation preservation of evidence is not provided for in the Civil Procedure Law.

Returning to the case in Civil Litigation Practice for Lawyers, the plaintiff obtained the evidence by theft, so the judge excluded it and formed a poor impression of his honesty; but had the plaintiff asked the court to obtain the evidence instead, with the judge requiring the defendant to produce it and inferring the fact

in question to be true if he refused, his claim would have stood in better stead.

4. Conclusion

China requires evidence to satisfy legality, so parties should exercise judgment both about how evidence is obtained and about the lawfulness of its content. Where evidence is hard to obtain, or can be had only by unlawful means, they may apply to the court for help: that avoids the disadvantage to their case of failing to obtain it, and

if the other side refuses to produce it, part of the facts may be established by inference. In choosing between items of evidence the judge considers legality and also the other evidence, and where items corroborate one another they may be accepted. A lawyer must not, in later litigation, obtain evidence favourable to his client by unlawful means, or incite the client to do so, but

should apply to the court or rely on other kinds of evidence that corroborate one another.