| There is a lot of extraterritorial evidence in the actual foreign-related cases because the existence of foreign-related factors,therefore the identification of extraterritorial evidence has become one of the core issues in foreign-related civil and commercial cases.The Supreme People's Court had considered the particulars of extraterritorial evidence and issued a judicial interpretation about civil evidence in2001,its Article 11 provides a special provision on the preconditions and specific forms of extraterritorial evidence,and compulsory requiring extraterritorial evidence that are provided by the parties in the trials can be confirmed only after such evidence has been notarized and then authenticated by the diplomatic or consular officers.In judicial practice,although the opinions on consular legalization's effects to confirm the extraterritorial evidence in different cases are not same,whether or not using consular legalization and whether or not confirming evidence is identical in the results,and the absence of consular legalization has even became a reason of refuse to cross-examination in some cases.There is also a phenomenon that the parties could not present evidence in time due to they can not handle procedures of consular legalization in time.These phenomena actually illustrate that the regulation about compulsory legalization in judicial practice have corresponding problems.First and foremost,formal consular legalization is used as an important criterion for confirmingthe genuineness of extraterritorial evidence content in judicial practice;Secondly,improper use of ‘illegal evidence exclusion rules',and whether consular legalization is used as a criterion for judging the legality of extraterritorial evidence,and thus be identified or excluded;Thirdly,using legalization influence cross-examination and derogate the effect of cross-examination in evaluating the extraterritorial evidence;Finally,the procedures of consular legalization that could not meet the requirements which are operability and efficiency in foreign-related litigations.One reason is that the legal rule about consular legalization to extraterritorial evidence is stipulated as a mandatory obligation but lacks clear legal consequences,and on the other hand other legal rules and practices in respect of extraterritorial evidence have their own defects.Therefore,whether extraterritorial evidence is required compulsory legalization or not is necessary to analyze and argue from the perspective of legal science.First of all,consular legalization can prove the last signature or seal in the public document is authentic,so it can help to confirm the formal authenticity of extraterritorial public documents and notarized documents to a certain extent.However,it is not responsible for the authenticity of the content of the extraterritorial evidence.The consular legalization is related to the formal legality of extraterritorial evidence,but the true meaning of illegal evidence in civil litigations include illegally obtained evidence and significant social harms.Therefore,according to the illegal evidence exclusion rule in civil litigations,the extraterritorial evidence without consular legalization does not belong to the illegal evidence that should be excluded.At the same time,it does not have any substantive influence on the confirmation of the relevance of extraterritorial evidence.Therefore,from the perspective of the validity of evidence,consular legalization plays a limited role in confirming the authenticity,legality,and relevance of extraterritorial evidence.Secondly,the cross-examination is an important mean to confirm evidence.It is the basis and premise for the identification of facts,and effective cross-examination is the best way to ascertain the facts.Besides,the cross-examination and parties' litigation rights are closely related,so there is no other way could replace the role of cross-examination in the confirmation of evidence.Thirdly,the mandatory consular legalization has faced operational risks.Onlyevidence that is formed beyond the territory of the People's Republic of China can be viewed as extraterritorial evidence.However,the parties in litigations are hardly to understand what is formed in foreign countries especially for electronic evidence.So they could not find the proper legalization authorities.Some types of evidence could not be authenticated by diplomatic or consular officers due to such evidence like physical evidence that can not be notarized.And diplomatic or consular officers have power to deny legalization.Other problem is our country has adopted double-legalization system,which requiring a long time to handle procedures and heavy economic burdens to the parties.Therefore,the mandatory consular legalization does not meet the requirements of trial efficiency.In conclusion,the legal rule of compulsory legalization should be abolished and changed by a new judicial interpretation.Instead,judges should be given the power to decide whether to require consular legalization or not on a case-by-case basis.And it should strengthen the core role of effective cross-examination in evaluation of evidence.The other civil evidence systems in China like the system of extraterritorial discovery and taking evidence abroad and the system of witness testimony at court should both be improved.In addition,there are many contracting parties in The Convention Abolishing the Requirement of Legalization for Foreign Public Documents,and it also has a wide range of influence.The system of additional certificate provides a kind of certificate that has same format and standard to maintain the efficiency and authenticity.And such Convention can become a part of China's law without any fundamental conflict.There is no need to amend the existing laws in China on a large scale.Furthermore,it also meets the China's national long-term development plan for building an international dispute resolution center and national interests.So it is necessary for China to enter into this Convention. |
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