CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
5. Discovery 5.1 Discovery and Civil Cases
4.4 Requirements for Interested Parties to Join a Lawsuit During the trial, the court is tasked with ensuring the presence of all necessary parties. If one or more necessary parties are missing, the court may add the parties ex officio or at the request of the parties already participating in the proceed- ings. Of course, the missing party may refuse to join the action. In this case, the party must explicitly waive their substantive rights in the action. 4.5 Applications for Security for Defendant’s Costs In China, a defendant has no right to apply for an order that the plaintiff/claimant must pay a sum of money as security for the defendant’s costs. 4.6 Costs of Interim Applications/ Motions For the most part, procedural requests, such as changes in evidence or waiving claims, are exempt from court fees. In China, the court’s litigation fee is primarily contingent on the litigation subject, and apart from this fee, the parties are not obliged to make any additional payments to the court. 4.7 Application/Motion Timeframe Most requests filed by the parties in the action must be made before the end of the hearing. For example, the plaintiff may change their claims or waive one or more claims before the debate stage of the hearing. One notable exception per- tains to objections over jurisdiction: a defendant must lodge this objection within 15 days from receipt of the complaint.
Discovery is not available in China. Typically, each party must bear the burden of proof on its own in substantiation of its claims. 5.2 Discovery and Third Parties There is no applicable information in this juris- diction. 5.3 Discovery in This Jurisdiction There is no applicable information in this juris- diction. 5.4 Alternatives to Discovery Mechanisms While formal discovery is not practiced, there are procedures that are somewhat similar. Court Investigation Should evidence be held by the defendant or a third party and the plaintiff is unlikely to access the evidence, the plaintiff may request the court to order the defendant or the party to submit such evidence. If the defendant refuses to sub- mit the evidence without valid reasons, the peo- ple’s court may conclude that the content of the evidence claimed by the applicant is true. Evidence Preservation To prevent the destruction or future inaccessibil- ity of evidence, parties can request the court to preserve evidence. These requests must be written, detailing the evidence’s location and the necessity for court intervention. On approval, the judge will order either the investigation or preservation of evi- dence.
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