CHINA Law and Practice Contributed by: Siyuan Liu, Wei Wang and Huanhuan Yu, Jingtian & Gongcheng
initiated by the procuratorate, legal aid, and judicial cost arrangements allowing reduction, deferment or exemption of court fees. 3.10 Disclosure and Privilege Disclosure There are no “discovery or disclosure” procedures in China, as this concept is generally known in common law jurisdictions. Instead, the Civil Procedure Law bears the burden of proof. The parties may decide what evidence to submit in support of their claims or defences, and bear the consequences if such evi- dence is insufficient. Courts may, ex officio, investi- gate and collect the evidence necessary to ascertain the facts. If the parties are objectively unable to obtain evidence themselves, they may apply to the court to investigate and collect evidence. Privilege PRC litigation rules do not recognise “privilege”, as this concept is generally known in common law juris- dictions, but analogous protections exist: • State secrets – evidence involving state secrets will not be presented in public hearings. • Trade secrets – per a party’s request, the court may conduct non-public hearings in cases involving trade secrets. • Personal privacy – evidence involving personal pri- vacy must be kept confidential and, if introduced, will not be presented in public hearings. • Attorney-client confidentiality obligation – attorneys will be bound by the statutory obligation of confi- dentiality. However, the scope, evidentiary effect and degree of protection afforded thereunder are more limited than under attorney-client privilege in common law jurisdictions. 3.11 Remedies PRC laws and regulations on collective actions are primarily procedural rather than substantive. Substan- tive remedies available in collective actions are the same as those available through individual actions, including: • damages; • injunctive relief; • removal of obstructions;
• elimination of danger; • restitution; • apology; and • punitive damages. 3.12 Settlement and ADR Mechanisms The PRC has established a diverse range of dispute resolution mechanisms. Those applied in collective actions include: • Model judgment plus settlement/mediation in par- allel cases – once the court renders a model judg- ment in a representative case and such judgment becomes final, subsequent parallel cases may be resolved through settlement or mediation by refer- ence to the result in the model judgment. • Court mediation – the trial court may mediate and issue a settlement agreement with binding enforce- ability. For example, the Essence Information Tech- nology case was the first special representative action in China resolved by mediation. • Out-of-court settlement – parties may reach an agreement out of court, with the plaintiff withdraw- ing the action. • Advance compensation – a special mechanism in securities collective actions, under which issu- ers, controlling shareholders, de facto controllers, and relevant intermediaries may agree to set up a compensation fund and compensate investors in advance. They may later seek reimbursement from other liable parties. Four cases in China have suc- cessfully applied this mechanism: (a) the Wanfu Biotechnology case (2013); (b) the Hailianxun case (2013); (c) the Xintai Electric case (2015); and (d) the Amethystum Storage case (2023). • Arbitration – in cases where parties have agreed to arbitral jurisdiction, collective disputes may also be resolved through arbitration. 3.13 Judgments and Enforcement of Judgments Judgments Joint action The judgment is binding on all parties to the action.
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