On August 2, 2017, Guangzhou Intermediate People’s Court issued the Notice on the Measures for the Implementation of Lawyers’ Investigation Orders in Civil Litigation (Trial), which came into trial implementation on the date of issuance. The Measures provide a clear channel to resolve the difficulty of evidence collection in civil cases.
As litigation lawyers, especially family law practitioners, we frequently need to apply to the court for the retrieval of relevant evidentiary materials. However, constrained by limited judicial resources, judges are heavily burdened with caseloads and often unable to attend to such matters personally.
To cooperate with judicial work, legal teams often take the initiative to propose that the court issue an official order authorizing designated lawyers to conduct evidence investigation. Many judges are receptive to this arrangement, as it allows lawyers to verify factual circumstances first before the judge decides whether personal intervention is necessary. Even before the promulgation of the above Measures, our legal team had already obtained numerous lawyers’ investigation orders issued by various courts.
In practical legal practice, lawyers still encounter quite a number of problems. A prominent issue is the lack of standardization, with courts issuing investigation documents in inconsistent formats.
For instance, there have been cases where competent authorities evaded cooperation by claiming that the document was merely a Notice for Supplementary Evidence, which requires the litigant rather than administrative departments to supplement relevant materials, and refusing to provide assistance on such grounds.
The Measures newly issued by Guangzhou Intermediate People’s Court have standardized the official format of the lawyer investigation order and clearly defined the scope of evidence accessible by lawyers, resolving many long-standing practical difficulties.
Since the implementation of the Measures, how has evidence collection by lawyers evolved in practice?
Following the promulgation of the Measures, in light of the actual needs of an ongoing divorce case, our legal team applied to Huadu District People’s Court for evidence investigation. The court strictly implemented the Measures issued by Guangzhou Intermediate People’s Court and granted a lawyer investigation order, authorizing the lawyer to collect evidence from two banks and the real estate registration authority respectively.
In actual operation, relevant government departments showed inconsistent responses, bringing both breakthrough progress and remaining difficulties.
Realizing Property Inquiry by Person’s Name
Previously, even with court-issued documents, legal teams were required to provide the specific property address before the real estate administration authority would issue a property record inquiry report setting out ownership information. In other words, lawyers could only inquire about a person through a known property.
The same rule applied even in divorce cases. The real estate authority would only release information on properties registered under the other spouse’s name to the applicant personally with valid credentials, thereby enabling property inquiry by person’s name. Lawyers were not permitted to conduct such inquiries even with authorization documents.
At present, the property declaration system in divorce proceedings remains imperfect, leaving room for one party to conceal undisclosed marital assets.
Under the new practice, upon a lawyer’s application, the court may explicitly specify in the investigation order that the scope of inquiry covers all real estate properties registered under the party’s name. This allows lawyers to fully verify the ownership status of all real estate assets under both spouses.
Difficulties Remain in Obtaining Bank Transaction Records
The legal team conducted evidence investigation at two banks in this case. When presenting the lawyer investigation order for inquiry, bank staff initially took a uniform stance: they only accept evidence investigation requests from personnel of public security organs, procuratorial organs and people’s courts, who must attend in pairs, and refused to accept evidence investigation by lawyers.
After communication by the lawyers, bank staff consulted their management and legal affairs department. Staff of Bank of China provided cooperation and completed the inquiry. However, China Construction Bank still declined the lawyers’ request, on the grounds that it had not received relevant circulars and was obligated to maintain customer confidentiality, insisting on only accepting investigations from judicial and law enforcement authorities.
In response, legal professionals suggest that Article 3 of the Implementation Measures clearly stipulates that lawyers holding a valid investigation order may access bank account information which is otherwise unavailable to them. Therefore, people’s courts should proactively communicate with relevant authorities at all levels, so as to prompt them to cooperate with lawyers conducting evidence investigation pursuant to a court-issued investigation order.
In particular, courts shall engage in communication with the China Banking and Insurance Regulatory Commission (CBIRC) and bank headquarters, and promote the issuance of supporting regulatory documents. This will provide clear legal basis for lawyers to obtain evidence by investigation order and ensure the enforceability and practical effect of lawyer investigation orders.
Is One Lawyer Permitted to Conduct Evidence Investigation with an Investigation Order?
In lawyers’ past practice of evidence investigation and collection, they are often challenged with the question: since court personnel are required to work in pairs when collecting evidence, is it legally valid for a single lawyer to conduct investigation alone?
As stipulated in the Law of the People’s Republic of China on Lawyers, lawyers are entitled to the right of evidence investigation and collection, with no statutory requirement mandating the participation of two lawyers simultaneously.
In most cases, a party entrusts only one lawyer as their legal agent to handle the case, or appoints one lawyer together with a legal assistant (trainee lawyer). Such arrangements are extremely common in practice.
If evidence collection were rigidly restricted to two lawyers, it would only unnecessarily increase the party’s financial burden, forcing them to engage an additional lawyer solely for the purpose of evidence collection. This runs counter to the original legislative intent of the lawyer investigation order system.
Furthermore, evidence materials collected either by one lawyer or by two lawyers must still undergo court cross-examination before being admitted as evidence. In most instances, such evidence needs to be investigated and collected precisely because the opposing party, who bears the obligation to produce evidence, refuses to do so voluntarily.
If the opposing party casts doubt on the evidence collected by the lawyer, they shall bear the burden of proof on their own; otherwise, they shall assume the adverse consequence of failure to adduce evidence.
Providing Channels for Relevant Authorities to Verify the Authenticity of Investigation Orders
Relevant municipal authorities are frequently involved in investigation work arranged by local people’s courts and are therefore quite familiar with official documents issued by courts within the city. Under normal circumstances, they seldom question the authenticity of court documents.
However, in cross-city evidence collection or during the initial trial period of the lawyer investigation order system, when a lawyer presents only court documents to apply for material access, handling staff often cast doubt on the authenticity of the investigation order due to unfamiliarity with relevant procedures.
It is therefore suggested that the contact information of the presiding judge and court clerk be printed on the investigation order, to facilitate verification of its authenticity by institutional handling staff.
Although the path for lawyers’ evidence investigation still faces uncertainties and difficulties, under the general trend of judicial reform, lawyers’ procedural rights are gaining increasing recognition. Judicial organs have also offered strong support to legal practitioners, while the overall awareness of the rule of law in society continues to improve.
Legal practitioners should not only voice demands and put forward constructive suggestions, but also encourage one another, stay confident, and strive to be pioneers and contributors to judicial reform.