Application of Investigation Order during the Examination Period When Filing a Civil Action

 2018-06-19  10


· Area of Law: Civil Litigation

· Level of Authority: Local Judicial Documents

· Date issued:01-02-2014

· Effective Date:01-02-2014

· Status: Effective

· Issuing Authority: Other Institutions of Zhejiang Province

 

Notice of the Higher People's Court of Zhejiang Province on Issuing the Opinions on the Application of Investigation Order during the Examination Period When Filing a Civil Action
The people's courts at all levels in Zhejiang Province:
Based on our research, this Court has formulated opinions on the application of investigation order during the examination period when filing a civil action, which are hereby issued to you for your diligent compliance and implementation. If you encounter any problem in practice, please report it to the Case Filing Division I of the Higher People's Court of Zhejiang Province in a timely manner.
Higher People's Court of Zhejiang Province
January 2, 2014
Opinions of the Higher People's Court of Zhejiang Province on the Application of Investigation Order during the Examination Period When Filing a Civil Action
To safeguard a party's procedural rights in a civil action, regulate the investigation and taking of evidence, and promote the people's court to increase the examination quality and efficiency when filing a case, these Opinions are hereby formulated in view of the reality of the work of the courts in Zhejiang Province.
Article 1 For purpose of these Opinions, an investigation order refers to a legal document issued by the people's court to the attorney or the legal service worker at the basic level representing a party when the party is unable to secure the evidence necessary for litigation during the examination period for filing purpose due to any objective reason and the people's court approves the party's application for an investigation order so that the necessary evidence may be acquired from a relevant entity.
For purpose of this Article, an objective reason refers to the inability of a party and the attorney or the legal service worker at the basic level representing the party to acquire relevant evidence through the regular channels of investigation and taking of evidence.
For purpose of this Article, evidence means documentary evidence.
Article 2 The applicant for an investigation order must have already submitted a written complaint and relevant evidence to the people's court, and the applicant's action is being examined by the people's court for filing purpose.
Article 3 Where a party applies for an investigation order during the examination period when filing the case, the scope of the order shall be restricted to the following evidence relevant to the conditions for instituting an action:
(1) Evidence on the party's competence;
(2) Evidence on the court's jurisdiction over the action; and
(3) Other evidence for instituting the action relevant to case acceptance.
Article 4 To apply for an investigation order, the following conditions shall be met:
(1) The applicant must be a party to a case under examination for filing purpose.
(2) The applicant shall submit a written application to the people's court, which shall indicate the evidence to be investigated into and acquired, the facts to be proved by such evidence, and the reasons for which the party is unable to secure such evidence.
(3) The applicant must have designated an attorney or a legal service worker at the basic level as the applicant's agent in the case and gone through relevant formalities.
(4) The case falls into the scope of accepting civil actions.
Article 5 Any case in which a party applies for an investigation order shall be registered. Upon examination, if an application is eligible, the judge filing the case shall prepare the investigation order and submit it to the divisional chief for issuance. If an application is not eligible, the applicant shall be orally notified of the reasons for not granting the investigation order.
Within five days after the party files an application, the people's court shall decide whether to issue the investigation order.
Article 6 Under any of the following circumstances, the investigation order shall not be issued:
(1) A state secret is involved.
(2) A trade secret or individual privacy is involved, and the entity or individual's legitimate rights and interests are likely to be infringed upon.
(3) The application is irrelevant to the case.
(4) Any other circumstance is present under which it is improper to issue an investigation order.
Article 7 The investigation order shall be in duplicate. One copy shall be retained by the people's court to be archived, and the other copy shall be delivered to the entity subject to investigation by the person with the investigation order.
The investigation order shall indicate:
(1) a serial number;
(2) the applicant's name;
(3) the name of the person with the investigation order, the number of his or her attorney's license or certificate of practice for a legal service worker at the basic level, and the name of his or her law firm or legal service firm at the basic level;
(4) the name of the entity subject to investigation;
(5) the scope of evidence to be investigated into and acquired from the entity subject to investigation;
(6) the validity period of the investigation order;
(7) the name and contact information of the judge handling the matter; and
(8) the date of issuance of the investigation order and the seal of the people's court.
Article 8 The investigation order shall be valid for 15 days. Where there is any delay during the above time period due to force majeure or any other special circumstance, the party may apply to the people's court for reissuance of an investigation order within three days after the cause for delay is removed.
Article 9 When a person with an investigation order conducts investigation on the basis of the order, the person shall show his or her attorney's license or certificate of practice for a legal service worker at the basic level and the order of investigation to the entity subject to investigation, and present the investigation order to the entity subject to investigation.
When the person with an investigation order secures any evidence on the basis of the order, he or she shall submit such evidence to the people's court filing the case within five days after the investigation order expires.
Article 10 Where a person with an investigation order fails to use the order for any reason or the entity subject to investigation fails to provide any evidence, the person with the investigation order shall return the order to the people's court within five days after it expires, and explain the reasons in writing.
Article 11 Where a person with an investigation order falls under any of the following circumstances, the people's court may propose to the judicial administrative authority or the bar association to impose punishments or discipline. Where there is any interference with the civil action, the person shall be subject to relevant liability in accordance with law. If the act constitutes a crime, the person shall be subject to criminal liability in accordance with law:
(1) The person violates Article 10 of these Opinions.
(2) The person secures evidence on the basis of the investigation order but fails to submit the evidence to the people's court filing the case within the prescribed time limit.
(3) The person improperly uses or leaks any evidence or information secured on the basis of the investigation order.
(4) The person forges or alters the investigation order, or forges, alters, conceals, or destroys any evidence secured on the basis of the investigation order.
Where a person with an investigation order falls under the circumstances set out in paragraph one of this Article, a people's court at any level in Zhejiang Province shall report the matter to the Case Filing Division I of the Higher People's Court of Zhejiang Province level by level for recordation. Upon publication on the intranet of the Higher People's Court of Zhejiang Province, no people's court at any level in Zhejiang Province shall issue an investigation order to the attorney or the legal service worker at the basic level in three years.
Article 12 The people's courts at all levels in Zhejiang Province may, according to local reality, determine the assisted inquiry mechanisms jointly with the relevant authorities through discussion in order to facilitate a party's securing of evidence for instituting an action. The courts at all levels shall develop the specific measures at their discretion.
Article 13 These Opinions shall come into force on the date of issuance on a trial basis.