CHINA Law and Practice Contributed by: Qingyou Wang, Yichen Lu, Chao Tang and Yuhe Gu, Anli Partners
Exclusionary Rules Even where evidence is obtained lawfully, it may still be excluded in certain circumstances. For example, where the manner of obtaining the evidence seriously infringes the legitimate rights and interests of others, or breaches a mandatory prohibition in law, the court may refuse to admit that evidence. Standard of Proof In civil proceedings, the standard of proof is generally that of a “high degree of probability”, meaning that the evidence must be sufficient to satisfy the judge that the facts in issue are highly likely to exist. 7.5 Expert Testimony Expert testimony is permitted at trial in China. • The parties can introduce their own expert testi- mony to support their case. The expert must be qualified to give an opinion on the issue in ques- tion, and their testimony must be based on their expertise. • The court can also appoint its own expert to provide an opinion on a technical or scientific issue. This is a common practice when the issue is complex or the parties’ experts have conflicting opinions. The court-appointed expert is expected to be impartial and to provide an objective opinion to the court. The expert’s opinion is not binding on the court, but it is persuasive evidence that the court will consider when making its decision. 7.6 Extent to Which Hearings Are Open to the Public The extent to which hearings and hearing records/ transcripts are made public depends on the nature of the case and the applicable legal provisions, as follows. Openness of Hearings Public hearings Except for cases that must not be heard in pub- lic according to law – such as those involving state secrets, trade secrets, personal privacy or offences committed by minors – other cases may have their hearings made open to the public via online live-
streaming, the “China Court Trial Online” platform and similar channels. Members of the public can watch live broadcasts or replays of hearings on China Court Trial Online and other platforms to follow the progress
of the proceedings. Non-public hearings
For cases involving state secrets, trade secrets, per- sonal privacy, offences committed by minors, as well as cases in which a party expressly requests that no live or recorded broadcast be made and such request is based on legitimate grounds, no live-streaming or public broadcast of the hearing will be arranged. The hearing process in such cases is known only to the parties, their legal representatives, litigation represent- atives and other specified participants in the proceed- ings. Openness of Hearing Records/Transcripts As a general rule, hearing records/transcripts are not directly disclosed to the general public. The parties and their litigation representatives may inspect and copy the hearing transcripts, but they must comply with the court’s rules and may not use the transcripts for unlawful purposes or disclose the information con- tained therein. 7.7 Level of Intervention by a Judge In China’s civil and commercial cases, judges play an active and leading role in hearings. They organise and manage the procedure, confirm the parties’ identities, explain their rights and obligations, decide the order of producing and challenging evidence, and ask ques- tions to the parties, witnesses and experts to clarify key facts. Judges may request additional evidence, order expert evaluations, or hear expert opinions for technical or specialised issues. This ensures the hear- ing focuses on key issues rather than turning into an open-ended debate. Whether a decision is given at the hearing depends mainly on how complex and urgent the case is. If the facts are clear, the evidence is sufficient and the law is straightforward, or if urgent matters such as asset preservation or interim measures are involved, the court will often give its decision at the end of the hearing.
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