Preliminary Study on the Expert Evidence System under PRC Civil Procedure

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1 Llinks Banking Law Bulletin May 2010 Preliminary Study on the Expert Evidence System under PRC Civil Procedure By Charles Qin and Tomy Xia In judicial practice, a party to a case which involves a highly specialized matter, such as complex financial products, intellectual property rights, construction costs of real estate projects, etc., will often engage a professional of that field to issue opinions, expert reports, or appear in court to provide expert testimony to support the party s claims. However, there is no standardized system established under the current PRC civil procedure framework 1 which mirrors those under common Law. This article introduces the expert witness system under common law, the current professional subsidiary and appraiser systems under PRC evidence rules, which make up the PRC expert evidence system, and provides analysis of the relevant judicial practices. Brief Introduction to the Expert Witness System under Common Law The expert witness system was first created based on evidence law in common law systems, and can be traced back to the Middle Ages. 2 Under common law, expert witnesses fall within the definition of witnesses generally, and thus the rules of witness testimony apply to the expert witnesses. 如 果 您 需 要 本 出 版 物 的 中 文 本, 请 与 下 列 人 员 联 系 : 韩 东 红 : (86 21) Publication@llinkslaw.com If you would like other Llinks publications, please contact: Lily Han: (86 21) Publication@llinkslaw.com Llinks Law Offices Common law takes a broad interpretation of the scope of witnesses. Witness fall into either of two categories: lay witnesses and expert witnesses. One is not required to hold a high educational degree or be highly recognized to qualify as an expert witness. Rather, all that is required is that the witness possesses specific skills or knowledge that laypeople generally do not. 3 Today, the expert witness plays an increasingly vital role in common law system. The importance of expert witnesses from various disciplines, such as medicine, handwriting identification, real estate, among others, is growing with each passing day. 1

2 PRC Professional Subsidiary System and Appraiser System The Several Provisions of the Supreme People s Court on Evidence in Civil Procedure (the Evidence Rules ) establishes a binary system for expert evidence, composed of professional subsidiaries and appraisers. Under the Evidence Rules, statements by professional subsidiaries are not legally considered witnesses testimony, whereas testimony by appraisers is legally considered evidence. Professional Subsidiary System Article 61 of the Evidence Rules provides that a party can motion to the court to have one to two persons with expert knowledge appear in court to assist in the explanation of technical or specialized issues, whereupon the judge and the parties may pose questions to such persons with expert knowledge. With the court s permission, the parties may also engage their own persons with expert knowledge to present countering opinions. Persons with expert knowledge can pose questions to appraisers. According to a judge of the PRC Supreme People's Court, the persons with expert knowledge referred to under Article 61 of the Evidence Rules is characterized as professional subsidiaries. According to the PRC Supreme People's Court s interpretation of Article 61, professional subsidiaries do not fall within the category of witnesses, and the expert opinion provided by professional subsidiaries are not considered evidence under PRC civil procedure. In fact, as provided in Article 61 of the Evidence Rules, there is no corresponding status for professional subsidiaries within the current PRC Civil Procedure Law ( Civil Procedure Law ). Such subsidiaries merely function as assistants to litigants in explaining specialized and technical issues where the litigants lack the ability to do so. Therefore, Article 61 of the Evidence Rules provides a professional subsidiary system which is markedly different from the expert witness system under common law. 4 Nonetheless, in today s medical malpractice compensation cases, litigants will engage medical professionals as professional subsidiaries to produce opinions on medical reports, etc. in accordance with Article 61 of the Evidence Rules, to help establish relevant disputed facts. Appraiser System Under the appraiser system, as provided by the Civil Procedure Law, factual conclusions made by appraisers constitute a form of statutory evidence. The Civil Procedure Law stipulates the general rules regarding the rights and legal responsibilities of appraisers 5 while the Evidence Rules sets out specific provisions regarding the burden of proof of judicial appraisal, application and entrustment of appraisal, appraisers being questioned at court, probative force of appraisal conclusion, admissibility of appraisal conclusions, protection of the rights of appraisers, etc. Additionally, the Decision of the Standing Committee of the National People s Congress on the Administration of Judicial Appraisal issued in 2005 set forth further rules, bringing significant improvement and integrity to the judicial appraisal system. Under PRC civil procedure, an appraiser must establish his expert conclusion in writing and appear in court to be enquired or cross-examined as to the contents of that written conclusion. Due to various nuanced differences, this appraiser system under PRC law does not directly correspond with anything under the common law expert witness system. 2

3 Judicial Practice and Exploration of the PRC Expert Witness System Relevant Judicial Practice As stated above, currently, the PRC has not adopted an expert witness system similar to that under common law, and the current system is composed of solely the professional subsidiary and appraiser systems. However, in judicial practice, parties will engage relevant professionals to issue expert opinions in cases that involve highly specialized matters. For example, in the case for retrial concerning the dispute regarding information network propagating rights between NuCom Online (Beijing) Information Technology Co., Ltd. and China Network Communications Group Corporation Zigong Branch, heard by the Supreme People's Court, 6 the appellant argued that both the Civil Procedure Law and the Evidence Rules provide for only seven types of statutory evidence, none of which includes in-court statements made by a professional subsidiary. Thus, the appellant argued that the court of first instance violated the Civil Procedure Law and the Evidence Rules when it adopted non-evidence material, namely statements made by the professional subsidiary, as evidence and basis of recognized facts. The court of second instance held that the allowance by the court of first instance for the professional subsidiary to appear in court, and its acceptance of the expert witness statements in support of the appellee s argument was not inappropriate, and was in compliance with the provision of Article 61 of the Evidence Rules. The appellant applied to the Supreme People's Court for retrial thereafter, and the Supreme People's Court reaffirmed the original judgment. Based on its opinion, the Supreme People's Court understood the professional subsidiary as an expert witness. However, in the case between Hangzhou Bay Bridge Construction Headquarters and AEROMIC SHIPPING(S) PTE, LTD, concerning damages arising from ship s colliding against a bridge, heard by the Ningbo Maritime Court, 7 the plaintiff and defendant summoned several professionals to support their respective arguments. Regarding these professional reports, the court held that such evidence was subjective and that the court would consider all matters and expert opinions of the case in rendering its decision. In addition, in the appeal of the patent infringement case between Fischerwerke Artur Fischer GmbH & Co. KG., et al. and Shanghai Hongli Decoration Design Engineering Co., Ltd., et al., heard by the Shanghai Higher People's Court, 8 the trial court relied on the expert witness engaged by the Shanghai Intellectual Property Service Center to issue an expert opinion as to a certain technological issue. In the court of second instance, the appellant argued that the trial court committed a procedural error in relying solely on testimony made by expert witnesses, and not an appraiser, to find that the products involved in the case were infringing. The court of second instance found that the court of first instance had engaged expert witnesses who appeared in court to interpret and demonstrate the professional issues involved had accepted enquires from the court and all parties, and gave all necessary and reasonable explanations in response to those enquiries, through all of which without objection from either party. According to the trial records, after the expert witness stated his opinions at court, the appellant did not raise any objections, and had not submitted any evidence or raised any issues strong enough to refute the expert s opinion. Therefore, the court of second instance held that there was no inappropriateness for the court of first instance to adopt the expert opinions. 3

4 Exploration of Relevant Systems It is noteworthy that the Guiding Opinions on Several Issues on Foreign Commercial Trial issued by the Guangdong Provincial Higher People's Court (Yue Gao Fa Fa [2004] No.32), classifies written expert opinions and expert testimony as forms of expert evidence. As to whether the people s court would permit the parties to submit expert evidence, the basic position of the Guangdong Provincial Higher People's Court is as follows: (1) Expert evidence includes reports issued by an expert as well as the expert testimony provided by the expert at the court regarding a certain matter of the case. (2) With respect to the specialized matters relevant to the facts of the case, the parties may submit written expert opinions to the court or motion the court to have an expert witness testified in court. Such motions must comply with Article 61 of the Evidence Rules. (3) Unless otherwise stipulated by law, anyone who has special experience or knowledge regarding issues involved in a case may provide expert evidence, and the court shall not set up any special limitation on the qualifications of experts. However, the court may require that the parties provide proof of the expert s identity and certifications to establish his special experience or knowledge in the relevant field. (4) Experts shall limit their written opinions or testimony to the specialized issues relevant to the facts of a case and shall not issue opinions on matters involving the application of law. Except for opinions given for the purpose of ascertaining foreign law, expert opinions regarding matters of the application of law shall not be admitted as evidence. Certainly, Expert evidence should be cross-examined. Expert evidence without being cross-examined cannot be relied on as the basis for the determination of facts. 4

5 Contact Details If you would like to know more information about the subjects covered in this publication, please feel free to contact the following people or your usual Llinks contact. Charles Qin Tel: (86 21) (86 10) Michael Mei Tel: (86 21) Llinks Law Offices We noted that, compared with the expert evidence under PRC civil procedure law, which is not listed as one of the forms of legal evidence, the expert opinion or expert report is one of the forms of the evidence under the China International Economic and Trade Arbitration Commission Arbitration Rules (2005 Amendment). 2 Hodgkinson, Tristram, Expert Evidence: Law and Practice, Sweet & Maxwell (1990), 6. 3 Article 702 of U.S. Federal Rules of Evidence provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 4 Please refer to the article Understanding of Article 61 of the Evidence Rules and Improvement and Innovation of PRC Expert Evidence System composed by Song Chunyu in Guide and Reference on Civil Trial, Volume (Volume 20 of total). 5 For example, Article 102 of Civil Procedure Law provides that a people s court may, depending on the seriousness of the circumstances, impose a monetary fine or order the party to be detained, or, if the act constitutes a crime, pursue criminal liability in accordance with the law in relation to any participants in litigation or other persons committing insulting, slandering, making of false accusations against, assaulting or using other means to retaliate against the appraiser. 6 China IPR Judgments & Decisions Website: 7 Peking University Legal Information Website: 8 Peking University Legal Information Website: = &Page=0&PageSize=20&orderby=1&SubSelectID=undefined#m_font_0 5