How to use emails as proofs when a litigation is undergoing in China ? it is a question that looks easy but actually it’s not that easy.
It’s popular to use emails to communicate.
As emails was used widely, especially for international business where oral communication is not convenient, people may deploy emails to prove something in a lawsuit, like the formation of agreement, quality assurance, time of delivery, and more which is communicated by emails. But if you don’t use emails in the right way, there is chance that your proof of email was not be admitted as effective in a lawsuit in China.
The relevant laws governing the email proofs
The Interpretation of PRC Civl Procedure law published by SPC on Feb.4th, 2015 stipulates, in its clause 116, that emails, electronic date exchange, online chat history, blog, microblog, phone message, electronic signature, domain and etc. information generating or existing in electronic medium, are electronic datas.
PRC Signature Laws, effective from April 24th 2015, stipulates in its 2nd and 3rd clause that the legal effect of electronic data should not be denied just because it’s in the form of E-signature or electronic data.
The Update on the Several Regulations of Civil Procedure Proofs of PRC detailed the manifestation of electronic data, officially declaring that Wechat message, emails, phone message, Alipay and etc. information storing in the electronic medium could be used as evidence.
My experience as a lawyer in using emails as evidence
As a Chinese lawyer, I have come across some cases in which the respondent don’t confess that he/she is the user of that email, the proof chain was interrupted even though parities agreed in many aspects by emails when doing the business.
Practical ways to identify the email user when using email proofs
To prove a user of the emails by which you negotiated with the counterpart, following ways may be practical:
the best way is to provide the emails for communication when composing the clauses of contract/ agreement. An example I used to draft contract is like this: Parties shall communicate all issues by emails in the following: contact name, phone and emails:
Wechat in China is popular, and nowadays most Wechat is bound with their identity. So you could ask the opposite’s emails on Wechat which may be used as a proof of the email user.
The first time you communicated with each other, it’s better for you to confirm the full name of the email user and the organization / corporation with which he/she is working.
Another way that may be utilized is to ask the business license or some other official information by emails, which may display the opposite’s identity.
Sometimes people may exchange their information by a name card, so you could use the emails in the given name card.
Be sure to communicate with the one who is representative of the counterparty:
Proving that the email user is a representative of the relevant organization/ corporation is also very important, it’s better to ask a letter of authorization from the entity that you’re dealing with, authorising the one who you’re speaking to.
Notarization of emails is better.
Furthermore, in a lawsuit in China, evidence like emails, if obtained from abroad, is expected to be notarized before submitted to a jurisdictional law court of China.
Manifesting the emails as proof
When in a court hearing, you’re required to demonstrate the proofs before the judge. You need to take the correct steps:
After login, click the emails to be demonstrated, displaying counterparty’s email address and emails content
When you need to demonstrate the attachment of the email in the procedure of raising proofs, you should download it ahead of time. Click the preview or download button to check with the copy submitted.