|
Before this, the Supreme People’s Court issued a Reply to Whether the People’s Court Accepts the Case That the Parties Apply for Recognition of Civil Documents of Mediation Which Was Made by the Courts of the Taiwan Region or Civil Mediation Agreement Which Was Made by other Organs and the Rules. The former is also a concrete judicial interpretation aiming for requisition of the Sichuan Higher People’s Court, which stipulates that the people’s courts should look on civil documents of mediation made by the courts of the Taiwan Region as civil judgments, and they should accept the application according to the Rules when the parties apply for recognition of the documents. However, the courts shall not accept applications by the parties for recognition of civil mediation agreement made by other organizations (including private mediation agencies).
But the latter is an abstract judicial interpretation aiming to ensure civil substantive rights and procedural rights of litigants between Mainland China and the Taiwan Region. It principally regulates the proceedings, and conditions that the courts approve the civil judgments and decisions of the courts of the Taiwan Region and arbitration awards of the arbitration agencies of the Taiwan Region. We may say that it plays a general and directive role for all courts in dealing with proceedings henceforth. But on the other hand, this approach of tackling matters one an issue-by-issue basis seems to be unreasonable, and it is also doubtful whether the Supreme People’s Court took other similar judicial documents into account when it issued the Rules. Therefore, we advise that the Supreme People’s Court should modify the Rules and enlarge the scope of “the civil judgments”, i.e. other similar judicial documents that are also to be regulated by the Rules.
On August 7, 2001, the Supreme People’s Court issued the Arrangement on the Service of Judicial Documents Abroad and the Taking of Evidence Abroad in Civil and Commercial Matters Between Mainland China and the Macao Special Administrative Region (MSAR) [hereinafter referred to as the Arrangement]. The Arrangement applies to civil and commercial cases (including the case of disputes over employment in Mainland China and the case of disputes over civil laborers in the MSAR) on the service of judicial documents and the taking of evidence between Mainland China and the MSAR. All of the above proceedings are to be carried out by the Higher People’s Courts in Mainland China and the Final Court of the MSAR, except that the Supreme People’s Court may directly entrust the Final Court of the MSAR to carry out the service and the taking of evidence and vice versa. What’s more, besides the general rules on the document, the deadline, and the manner and denial of entrustment, the Arrangement also stipulates different concrete proceedings and conditions on the service of judicial documents and the taking of evidence.
But as yet, there is no formal legislation on interregional judicial assistance in Mainland China. Though there are still other judicial interpretations such as the Arrangement on the Service of Judicial Documents Abroad in Civil and Commercial Matters between the Courts of Mainland China and the Hong Kong Special Administrative Region (HKSAR) and the Arrangement on the Recognition and Enforcement of Arbitration Awards between the Courts of Mainland China and the Hong Kong Special Administrative Region, the Arrangement goes beyond the scope of the above two Arrangements between Mainland China and the HKSAR, which regulate the service and the taking of evidence. It may be said that this Arrangement is a development of Chinese interregional judicial assistance. Under the present condition that the People’s Republic of China has no power of uniform legislation on interregional matters, this form of Arrangement will produce significant effects on the settlement of interregional judicial assistance between Mainland China and the HKSAR, the MSAR and even the Taiwan Region.
II.D. Judicial Interpretation of Foreign Evidence
On December 21, 2001, the Supreme People’s Court issued the Rules on the Evidence in Civil Litigation [hereafter referred to as the Rules]. Article 11 of the Rules states:
If the evidence provided by the parties to the people’s courts is abroad, it should be proved by the agency of public certification which belongs to the country of the place of evidence and be certified by the consulate of the PRC, or it should fulfill the procedure of certification that is stated in multilateral and bilateral treaties concluded by the PRC and the country of the evidence. If the evidence provided by the parties to the people’s courts is located in the HKSAR, the MSAR or the Taiwan Region, it should also fulfill the relevant procedure of certification.
This is the first rule of confirmation of evidence that is located abroad and is also a development of the system of the taking of evidence from abroad. It is recognized generally that evidence plays an important role in the process of handling civil and commercial cases involving foreign elements. The substantive significance of evidence is that it serves to ascertain facts and clear up legal relationships, and the procedural significance lies in whether, if the court decides to accept evidence taken abroad, it needs confirmation of the evidence. In the Rules, there are two requirements on the adoption of evidence located abroad: (a) if there are multilateral treaties to which both the PRC and the country of the evidence are parties (for instance the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters ), or bilateral treaties concluded by the PRC and the country of the evidence (for instance many agreements on judicial assistance between the PRC and foreign countries ), adoption of evidence located abroad should fulfill the procedure of certification stipulated in the relevant treaties; (b) if not, evidence located abroad should be proved by the agency of public certification which belongs to the country of the place of the evidence and be certified by the consulate of the PRC.
|
