Regulations of the Supreme People's Court on Certain Issues Relating to Evidence in Administrative Litigation
Regulations of the Supreme People's Court on Certain Issues Relating to Evidence in Administrative Litigation
Regulations of the Supreme People's Court on Certain Issues Relating to Evidence in Administrative Litigation
Fa Shi [2002] No. 21
July 24, 2002
The Regulations of the Supreme People's Court on Certain Issues Relating to Evidence in Administrative Litigation, adopted at the 1224th session of the Judicial Committee of the Supreme People’s Court on June 4, 2002, is hereby issued and shall come into force on October 1, 2002.
Regulations of the Supreme People's Court on Certain Issues Relating to Evidence in Administrative Litigation
(Adopted at the 1224th session of the Judicial Committee of the Supreme People’s Court on June 4, 2002 and issued under Fa Shi [2002] No.21)
In order to reach accurate findings of facts and hear administrative cases in an impartial and timely manner, these Regulations are formulated in accordance with theLaw of the People's Republic of China on Administrative Proceedings (hereinafter referred to as the "Administrative Procedure Law") and other relevant laws and in light of administrative trial practices.
Chapter I Allocation of Burden of Proof and Time Limit for the Production of Evidence
Article 1 As provided in articles 32 and 43 of the Administrative Procedure Law , the defendant to an administrative case shall bear the burden of proof for a specific administrative act that the defendant has carried out and shall, within ten days of the date on which the counterpart of the complaint in question is received, provide all evidence and normative documents on which such an act is based. Where the defendant fails to provide or provides the evidence beyond a specified period without proper reasons, it shall be deemed that appropriate evidence is absent for such an act.
Where the defendant cannot provide evidence within the period specified in the preceding paragraph due to force majeure or any other proper cause beyond the human control, the defendant shall, within ten days of the date on which the counterpart of the complaint in question is received, file a written application to the people's court concerned for a deferment in providing the evidence. Where the people's court consents to such a deferment, the defendant shall provide the evidence within ten days after the termination of the proper cause. Where the defendant provides the evidence beyond the specified period, it shall be deemed that appropriate evidence is absent for such an act.
Article 2 Where the plaintiff or a third party to an administrative case brings forth any reason for rebuttal or evidence that is not put forward during the administrative procedure in question, the defendant may, after the consent of the people's court concerned, provide proper supplementary evidence in the proceedings at first instance.
Article 3 As provided in Article 33 of the Administrative Procedure Law, in the course of proceedings, neither the defendant concerned nor the agent ad litem of the defendant shall by himself gather evidence from the plaintiff concerned and any witnesses.
Article 4 In filing an action with a people's court, a citizen, a legal person or any other organization shall provide appropriate evidential materials that meet the requirements for filing an action.
In a case involving any omission by the defendant concerned, the plaintiff concerned shall provide evidential materials proving that the plaintiff has submitted an application in the administrative procedure in question unless under any of the following circumstances:
1. Where the defendant shall fulfill voluntarily the statutory functions and duties in question in accordance with the authority of the defendant; or
2. Where the plaintiff is not able to provide relevant evidential materials due to any deficiency in the registration system of the defendant for the acceptance of applications or any other proper cause and makes an appropriate statement.
Where the defendant alleges that the plaintiff files the action beyond the statutory period, the defendant shall bear the burden of proof.
Article 5 In an action for administrative compensation, the plaintiff concerned shall provide evidence for the fact that the specific administrative act involved has harmed the plaintiff.
Article 6 The plaintiff to an administrative case may provide evidence that the specific administrative act involved violates any law. Where the evidence provided by the plaintiff has no merit, the defendant shall not be immune from the burden of proof for the legality of the specific administrative act involved.
Article 7 The plaintiff or any third party to an administrative case shall provide evidence before the first hearing session for the case or on a date specified by the people's court concerned on which evidence is to be exchanged. Where the plaintiff or any such third party files an application for a deferment in providing evidence due to any proper cause, the plaintiff or any such third party may, after the consent of the people's court, provide the evidence during the stage of court investigation. Where the plaintiff or any such third party provides evidence beyond the specified period, it shall be deemed that the plaintiff or any such third party has waived the right of to produce evidence.
Evidence which is not provided in proceedings at first instance by the plaintiff or any such third party without any proper cause and which is provided in proceedings at second instances shall not be upheld by the people's court.
Article 8 In serving a notice of acceptance or a notice to answer on the parties to an administrative case, the people's court shall inform the parties of the scope of evidence to be produced, the time limit for producing evidence and legal consequences for providing evidence beyond the specified period and that an application for a deferment in providing evidence shall be filed if the parties are not able to provide evidence within the specified period due to any proper cause.
Article 9 As provided in Paragraph 1 of Article 34 of the Administrative Procedure Law , a people's court shall have the authority to require the parties to an administrative case to provide or add evidence.
For any fact that is not questioned by the parties and which involves the interest of the State, the public interest or the legitimate interest of any other party, the people's court may order the parties to provide or add relevant evidence.
Chapter II Requirements for the Provision of Evidence
Article 10 As provided in Item (1) of Paragraph 1 of Article 31 of the Administrative Procedure Law, where any party to an administrative case provides documentary evidence to the people's court concerned, the following requirements shall be satisfied:
1. The original of documentary evidence is provided which includes the original and duplicate of the documentary evidence. Where it is really difficult to provide the original of the documentary evidence, a certified accurate copy, picture, or extract of the documentary evidence may be provided;
2. Where a copy, photocopy or excerption of the original documentary evidence that is kept by the relevant department is provided, the source shall be indicated and the said department shall affix its seal thereon after verifying that there is no mistake;
3. Where statements, drawings, books of accounts, special technical information, scientific and technical literature and other documentary evidence are provided, explanatory materials shall be attached thereto; and
4. Records of inquiries, statements, and talks provided by the defendant concerned and on which the specific administrative act involved is based shall be signed or sealed by the law enforcement official in question, the party being inquired, the party making such statements and the parties engaged in such talks.
Where there are any other provisions in any law, regulations, judicial interpretations, and rules with respect to the form in which documentary evidence is prepared, such provisions shall prevail.
Article 11 As provided in Item (2) of Paragraph 1 of Article 31 of the Administrative Procedure Law, where any party to an administrative case provides physical evidence to the people's court concerned, the following requirements shall be satisfied:
1. The original articles are provided. Where it is really difficult to provide the original articles, reproductions of the original articles that have been verified to be consistent with the original articles or any pictures, video recordings or other evidence that can prove the existence of the original articles may be provided; and
2. Where the original articles are large in number and fungible, part of the original articles is provided.
Article 12 As provided in Item (3) of Paragraph 1 of Article 31 of the Administrative Procedure Law, where any party to an administrative case provides computer data or audio-visual materials such as sound recordings and video recordings to the people's court concerned, the following requirements shall be satisfied:
1. The original carrier of relevant materials is provided. Where it is really difficult to provide the original carrier, a reproduction of the original carrier may be provided;
2. The method by which and time at which such materials are prepared, persons who prepare such materials, and objectives for which such materials are provided are indicated; and
3.
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