Research On Consular Certification System Of Extraterritorial Evidence In China

In China,compulsory consular certification system is adopted for the application of extraterritorial evidence in foreign-related civil and commercial litigation.Although this system has a positive effect on the identification of extraterritorial evidence in foreign-related civil litigation,it also exposes many disadvantages.From the perspective of comparative law and on the basis of mutual observation with international law and extraterritorial law,this paper studies the relevant issues of Chinese compulsory consular certification system of extraterritorial evidence systematically.And the paper is divided into the following four parts with internal logical connection:The first part describes the status of Chinese consular certification system in extraterritorial evidence.The application scope of Chinese consular certification system in extraterritorial evidence is the evidence submitted by the parties in foreign-related civil and commercial litigation.And the evidence formed outside the territory of the People’s Republic of China.When the extraterritorial evidence enters the civil procedure of our country’s court,it needs to be notarized by the notary office of the country where the evidence is located.Next,it needs to be certificated by the Ministry of Foreign Affairs of the host country or an organization authorized to handle consular certification.The last,it needs to be certificated by the Chinese embassy or consulate-general(consulate)in that country.To some extent,the system helps confirm the formal authenticity and proving power of extraterritorial evidence.The second part investigates the certification system of extraterritorial consular evidence from the perspective of international law and extraterritorial law.Whether "Convention Abolishing the Requirement of Legalization for Foreign Public Documents"(often referred to as "the Hague Cancel Authentication Convention"),or by the Spanish domestic legislation,are presented the trend that is from mandatory certification to non-mandatory certification,from paper certification to the co-existence of paper certification and electronic certification of extraterritorial evidence certification system.This provides reference for the development of Chinese consular certification system of extraterritorial evidence.The third part reflects on the consular certification system of extraterritorial evidence in China.The compulsory requirement on consular certification of extraterritorial evidence is unreasonable in China.It is reflected in the special kinds of evidence cannot be certified due to the lack of notarization.And the parties’ burden of proof is too heavy.The evidence of consular certification is exempted from cross-examination in court.Based on the form authenticity of extraterritorial evidence can be guaranteed by other ways,the burden of proof on the parties should be reduced,and the cross-examination of extraterritorial evidence in court should not be ignored,China should cancel the mandatory requirement on consular certification of extraterritorial evidence.The fourth part puts forward the development countermeasures of Chinese consular certification system of extraterritorial evidence.It is necessary for China to accede to "the Hague Cancel Authentication Convention",cancel compulsory consular certification and adopt additional certificate system under the international trend.The relevant conventions and bilateral agreements that China accessed to,a mature notary system and perfect domestic law provide the feasibility for the implementation of the convention.Based on the efficiency and security in application of the cross-border flow of extraterritorial evidence,China should adopt the electronic authentication system.And China should establish electronic additional certificates and electronic registers with the support of existing laws,technologies and related practices.