Provisions of the Supreme People's Court on the Application of Cross-examination Procedure in the Trial of State Compensation Cases by Compensation Committees of People's Courts

· Document Number：Interpretation No. 27 [2013]

· Area of Law： State Compensation

· Level of Authority： Judicial Interpretation

· Date issued：12-19-2013

· Effective Date：03-01-2014

· Status： Effective

· Issuing Authority： Supreme People's Court

Announcement of the Supreme People's Court
The Provisions of the Supreme People's Court on the Application of Cross-examination Procedure in the Trial of State Compensation Cases by Compensation Committees of People's Courts, as adopted at the 1,600th meeting of the Judicial Committee of the Supreme People's Court on December 16, 2013, are hereby issued, and shall come into force on March 1, 2014.
Supreme People's Court
December 19, 2013
Provisions on the Application of Cross-examination Procedure in the Trial of State Compensation Cases by Compensation Committees of People's Courts
(Interpretation No. 27 [2013], adopted at the 1,600th meeting of the Judicial Committee of the Supreme People's Court on December 16, 2013)
In order to standardize the application of cross-examination procedure in the trial of state compensation cases by compensation committees of people's courts (hereinafter referred to as the “compensation committees”), these Provisions have been formulatedin accordance with the State Compensation Law of the People's Republic of China (hereinafter referred to as the “State Compensation Law”) and other relevant laws and regulations in light of the actual circumstances in the work of state compensation.
Article 1 Where a compensation committee hears the statements and pleadings of the compensation claimant and the organ liable for compensation and conducts a cross-examination in accordance with Article 27 of the State Compensation Law, these Provisions shall apply.
Article 2 Where under any of the following circumstances, disputes fail to be settled upon trial in writing, the compensation committee may organize the compensation claimant and the organ liable for compensation to conduct a cross-examination:
1. There is dispute over tortious facts, damages resulted, and causation.
2. There is dispute over whether it falls under the circumstances where the state shall not assume compensation liability as set forth in Article 19 of the State Compensation Law.
3. There is dispute over the manner, items, or amount of compensation.
4. There are other circumstances where the compensation committee holds that a cross-examination should be conducted.
Article 3 The cross-examination shall be publicly conducted unless it involves any national secret and individual privacy or except as otherwise provided by laws.
Where the compensation claimant or the organ liable for compensation applies for a non-public cross-examination and the opposite party agrees to it, the compensation committee may conduct the cross-examination in a non-public manner.
Article 4 The compensation claimant and the organ liable for compensation shall have equal legal status in cross-examination, have the right to entrust an agent, file a request for withdrawal, present evidence, apply for consulting and duplicating cross-examination materials of the case, make statements, inquiries, and pleadings, exercise the cross-examination rights according to law, and observe the cross-examination order.
Article 5 The compensation claimant and the organ liable for compensation shall bear the burden of proof regarding the facts claimed by and in favor of the claimant or the organ, except as otherwise provided by laws and judicial interpretations.
Where there is no evidence or there is insufficient evidence to prove the facts on which the claims of the compensation claimant or the organ liable for compensation are based, the party with the burden of proof shall bear the adverse consequences thereof.
Article 6 Where any of the following facts needs proof, the organ liable for compensation shall bear the burden of proof:
1. The legality of acts of the organ liable for compensation.
2. No fault of the organ liable for compensation.
3. Facts to be proved that the compensation claimant fails to prove due to faults of the organ liable for compensation.
4. No causation between the act of the organ liable for compensation and the death or losing of civil conduct capacity of the person in custody during the period of custody.
Article 7 Under any of the following circumstances, the organ liable for compensation shall bear the burden of proof:
1. It falls under the statutory circumstances of liability exemption.
2. The statute of limitations for the claim for compensation has expired.
3. There are other defenses.
Article 8 The compensation committee may notify the reconsideration organ of participating in the cross-examination when deeming it necessary. The reconsideration organ shall describe the facts and legal basis on which it makes the reconsideration decision.
Article 9 Within the time limit for producing evidence, the compensation claimant may apply to the compensation committee for requiring submission of the following evidence:
(1) the evidence that is preserved by the relevant state authority and to which both the compensation claimant and the agent entrusted thereby have no access for consulting and requiring submission;
(2) the evidence that involves national secrets, trade secrets, and individual privacy; and
(3) other evidence the compensation claimant and the agent entrusted thereby fail to gather for any objective reason.
When applying to the compensation committee for requiring submission of evidence, the compensation claimant shall provide specific clues.
Article 10 The compensation committee shall have the right to demand the compensation claimant and the organ liable for compensation to provide or supplement evidence.
Where there are facts involving national interests, public interests, or legitimate rights and interests of other persons, or there are such procedural matters as adding cross-examination participants according to its functions, suspending the trial, closing the trial, and withdrawal, the compensation committee may investigate the progress and gather evidence from the relevant entity and person.
Article 11 The compensation claimant and the organ liable for compensation shall, within ten days upon receipt of the written notice on accepting the case, provide evidence. Where the compensation claimant or the organ liable for compensation has difficulty in providing evidence within the prescribed time limit for any objective reason, the compensation committee may, upon application of the compensation claimant or the organ liable for compensation, appropriately extend the time limit for producing evidence.
Where the compensation claimant or the organ liable for compensation fails to provide evidence within the prescribed time limit without any legitimate reason, it shall bear corresponding adverse consequences.
Article 12 For a case with relatively more evidence or that is complicated, the compensation committee may organize the compensation claimant and the organ liable for compensation to exchange evidence before the cross-examination, specify focal dispute, and put the circumstances on evidence exchange on record.
Where there is no dispute over evidence in the process of evidence exchange by the compensation claimant and the organ liable for compensation and the evidence is put on record, such evidence may, upon notification by the judge in the cross-examination, be served as the basis for verifying case facts.
Article 13 The compensation committee shall designate judges to organize the cross-examination and notify the compensation claimant, the organ liable for compensation, and other cross-examination participants three days before the cross-examination is conducted. When necessary, the compensation committee may notify the staff member of the organ liable for compensation that has originally exercised the functions or other interested person of accepting inquiry on the scene.
When deciding to conduct a public cross-examination, the compensation committee shall, three days before the cross-examination, announce the cause of action, the names of the compensation claimant and the organ liable for compensation, and the time and place of the cross-examination.
Article 14 In the trial of a state compensation under the cross-examination procedure, the evidence that has not been cross-examined may not be served as the basis for verifying case facts, except as otherwise provided by laws and judicial interpretations.
Article 15 The compensation claimant and the organ liable for compensation shall conduct the cross-examination by focusing on the relevance, authenticity, and legality of evidence, and the existence and degree of probative force of evidence.
Article 16 Before the cross-examination begins, the court clerk shall identify whether cross-examination participants are present and announce cross-examination disciplines.
When the cross-examination begins, the judge that presides over the cross-examination shall check the compensation claimant and the organ liable for compensation, announce the cause of action and the list of judges and court clerks, notify the compensation claimant and the organ liable for compensation of the cross-examination rights and obligations, and inquire them whether they apply for withdrawal from cross-examination.
Article 17 In general, a cross-examination shall be conducted in the following sequence:
1. The compensation claimant and the organ liable for compensation make statements separately and the reconsideration organ makes explanations.
2. The judge summarizes the focal dispute.
3. The compensation claimant and the organ liable for compensation produce evidence separately and present their opinions.
4. The witness, appraiser, and surveyor that participate in the cross-examination are inquired.
5. The compensation claimant and the organ liable for compensation inquire and argue matters in dispute.
6. The judge announces the facts and evidence on which both the compensation claimant and the organ liable for compensation reach a consensus.
7. The compensation claimant and the organ liable for compensation make final statements.
Article 18 The compensation committee shall conduct the cross-examination on the basis of the evidence the compensation claimant applies for submission, which serves as the evidence provided by the compensation claimant.
The compensation committee shall produce the evidence that is required for submission according to its functions, state the progress in the submission of the evidence, and solicit opinions from the compensation claimant and the organ liable for compensation.
Article 19 Where the compensation claimant or the organ liable for compensation explicitly acknowledges the facts that are claimed by the opposite party and are adverse to itself in the cross-examination, the opposite party need not produce any evidence; and where the compensation claimant or the organ liable for compensation fails to acknowledge or deny the facts, and upon inquiry and interpretation of legal consequences by the judge, it still makes no explicit statement, it shall be deemed that it acknowledges the facts.
Where the compensation claimant or the organ liable for compensation entrusts an agent in participating in the cross-examination, the acknowledgement made by the agent within the scope of entrustment shall be deemed as the acknowledgement of the principal, unless the compensation claimant or the organ liable for compensation that participates in the cross-examination is explicitly against the admission on the scene; for the acknowledgement made by the agent exceeding the scope of authority, if the compensation claimant or the organ liable for compensation that participates in the cross-examination fails to deny it on the scene, it shall be deemed as the acknowledgement of the principal.
Where the aforesaid acknowledgement of facts violates prohibited provisions under the law or damages the national interests, public interests, or legitimate rights and interests of other persons, such acknowledgement of facts may take no self-confessed effect.
Article 20 Any of the following facts shall require no producing of evidence:
(1) the natural laws, theorems, and laws;
(2) the facts known to all;
(3) the facts deduced from legal provisions;
(4) the facts proved in accordance with law; and
(5) the facts established on the basis of daily life experience.
For items (2), (3), (4), and (5), if the compensation claimant or the organ liable for compensation has any contrary evidence to deny the authenticity of them, they shall still require producing of evidence.
Article 21 Where there is evidence proving that the organ liable for compensation holds evidence but refuses to provide it without any legitimate reason, the compensation committee may make a presumption regarding the factum probandum in favor of the compensation claimant.
Article 22 The compensation committee shall, in accordance with laws, observe legal procedure, review evidence in an overall and objective manner, and conduct the examination and make judgment of the weight of evidence in an independent and comprehensive manner by applying logical reasoning and daily life experience.
Article 23 The court clerks shall record all cross-examination activities in transcripts. Upon verification or supplementation, the cross-examination transcripts shall be signed or affixed with seals by the compensation claimant, the organ liable for compensation, and other cross-examination participants. Where any of them refuse to sign its name or affix its seal, the circumstances shall be specified and attached to case files and be signed by the judge and court clerk.
Where conditions permit, the compensation committee may conduct synchronous audio and video recording of cross-examination activities throughout the whole process.
Article 24 Where, upon notification, the compensation claimant or the organ liable for compensation refuses to participate in the cross-examination without any justifiable reason or withdraws from the cross-examination without approval, it shall be deemed as abandonment of cross-examination. The compensation committee may verify case facts by taking the entire case information and opinions of the opposite party into full account.
Article 25 Under any of the following circumstances, the cross-examination may be postponed:
1. The compensation claimant or the organ liable for compensation fails to participate in the cross-examination due to force majeure.
2. The compensation claimant or the organ liable for compensation temporarily files an application for withdrawal from cross-examination and the decision on approving the withdrawal cannot be made within a short period of time.
3. It is necessary to notify new witness to be present, require submission of new evidence, conduct authentication and survey again, or make a supplementary investigation.
4. There are other circumstances where the cross-examination should be postponed.
Article 26 These Provisions shall come into force on March 1, 2014.
Where the judicial interpretations issued by the Supreme People's Court before the implementation of these Provisions are inconsistent with these Provisions, these Provisions shall prevail.