The Administrative Procedure Law, as adopted by the Second Session of the Seventh National People’s Congress in 1989, became effective on October 1, 1990. As the law for “people to sue the government,” it set out basic rules for the administrative proceedings. Since its effectiveness, it had played an essential role in addressing administrative disputes, promoting legal administrative actions, and protecting the legal rights and interests of individuals, entities and other organizations.

With the furthering of the socialist rule of law, it became more apparent that the existing administrative procedural system was inconsistent and unsuitable for the social and economic development. Thus, it was placed on the agenda to amend the Administrative Procedure Law. The Decision to Amend the Administrative Procedure Law was adopted to be effective on May 1, 2015, in the 11th Session of the Standing Committee of the 12th National People’s Congress on November 11, 2014.

This first amendment to the Administrative Procedure Law is done macroscopically and microscopically by focusing on protecting the litigous rights of the parties and by improving the jurisdictional system, the system for litigant participants and the form of rulings, with respects to the legislative spirit and the systemic design. It will influence the trial of trademark granting and validation cases, especially as the Administrative Procedure Law (effective in 1990) contained rules of evidence that are relatively simple. To make up for the deficiency, it was amended to contain more complete and better rules, establishing a relatively scientific system for evidence production, cross-examination and authentication.

Its impact on the trial of trademark Ma Jun, Judge of IP Tribunal, Beijing Higher People’s Court granting and validation cases is discussed below:

I. It Clarifies the Consequence if the Defendant Fails to Produce Evidence In Time
To break through the evidence adduction model in the civi l procedural system, the Administrative Procedure Law has established its own unique model. In some countries, the burden of proof on the parties in the administrative procedure is the same as that in the civil procedure.

In China, the Administrative Procedure Law adopts the doctrine that the defendant should have the burden to prove the legality of its administrative action, except in administrative compensation procedure where “whoever lodges a claim should prove it” as in the civil procedure. The burden of proof is so allocated mostly by considering that in the administrative procedure, administrative bodies have both the powers and prior rights, which create an advantage for them in the administrative legal relationship.

They know better the normative documents within their terms of reference and have wide access to the powers, means and tools to investigate and obtain evidence.

Therefore, the requirement for the unilateral production of evidence on the administrative body is appropriate in light of its capacity in evidence production.

I f the defendant refuses to produce or delays the production of evidence, the Administrative Procedure Law (amended in 2014) clarifies that as a consequence of the defendant’s failure to produce evidence in due time, i.e. if the defendant refuses to provide or delays the production of evidence without acceptable reasons, it shall be deemed as no such evidence ever existing, except if the interests of any third party is involved in the administrative action, or for any evidence from any third party or for any evidence that the court obtains. In trademark granting and validation cases, what evidence should be provided by the trademark administrator? According to the exclusive rule for case files, the trademark administrator should provide the court with all, instead of the major part, of the evidence for its administrative action, i.e.

it must provide all the evidence for the action, together with its decision or ruling that has been complained of. The “exclusive rule of case files” means that a case file should exclusively consist of various records, statements of opinions, experts’ conclusions, witnesses’ testimonies or physical evidence, which is either obtained by the administrator through the investigation, evaluation or hearing proceedings prior to the administrative action or provided by the other party to prove any provable fact, as well as various legal papers that are used as basis for or otherwise received in the administrative action. No other evidence should be admitted as basis for the administrative action.

Pursuant to the rule, only evidence that is contained in the case file and has been cross-examined by the parties orally or in written form should be the basis for the trademark administrator to reach a decision. No evidence that cannot be found in the case file or has not been cross-examined should be admitted as basis for the decision.

For the trademark administrator, the evidence it provides to the court should constitute the base for its administrative action, including the invalidation application or response from any party or parties, which objectively records how the trademark administrator has acted. This evidence, plus any evidence that is cross-examined in the judi c i a l proceedings, should constitute the case file, on the basis of which the court decides on the legality or not of the action of the trademark administrator. As the files from the trademark administrator have been formed and sealed during the administrative proceedings, they cannot be changed in the judicial proceedings, to be the only evidence for examination by the court.
II. It Perfects the System for the Defendant to Produce Evidence
Article 33 of the Administrative Procedure Law (effective in 1990) provides that the defendant shall not collect evidence from the plaintiff or any witness during the proceedings. To find out the fact, additionally the Administrative P rocedure Law (amended i n 2014) provides that subject to the permission of the court, the defendant may supply additional evidence if: (i) such evidence was obtained when the defendant conducted the administrative action, but could not be provided due to force majeure or any other justifiable cause; or (ii) any new cause or evidence is submitted by the plaintiff or any third party, which was not submitted during the administrative action.

The scenario (ii) means that the plaintiff who failed to submit any counter-evidence during the administrative action now submits any new evidence or argument during the judicial proceedings, in which case the defendant may proceed to obtain evidence for such new evidence or argument, subject to the permission of the court. However, this supplementary evidence from the defendant can only be used to refute any argument or evidence from the plaintiff or any third party, but cannot be used directly to prove the legality of the administrative action.
III. It Clarifies the Rule to ApplyEvidence
To regulate the use of evidence and improve the justness and persuasive power of the decisions of the court, Article 43 of the Administrative Procedure Law (amended in 2014) provides that evidence shall be exhibited in the court and cross-examined by the parties. Any evidence that involves any secret of the state or any business or the privacy of any individual shall not be exhibited in any open session of the court.  The court shall review and verify any evidence comprehensively and objectively in accordance with the statutory procedure. It shall also explain why any evidence is not admitted. No evidence that is obtained by illegal means shall be used as basis to determine the fact of a case. As far as this author believes, the evidence that is obtained by illegal means, i.e.  the illegal evidence, can be in the following scenarios: the way to obtain the evidence is illegal; the collector of the evidence is illegal; the formalities to obtain the evidence are illegal (such as, any evidence that needs notarization or authentication is not notarized or authenticated); or the form of the evidence is illegal. Depending upon the circumstance, illegal evidence may or may not be excluded, with deficiencies remedied. For the excluded evidence, the updated Interpretation of the Supreme People’s Court on the Applicability of the Civil Procedure Law of the People’s Republic of China (Judicial Interpretation [2015] No. 5) can be referenced, where Article 106 of the Judicial Interpretation provides that any evidence that is created or obtained by seriously damaging the legal rights and interests of any other person, violating any prohibitive legal norms or seriously breaking the public order or morality shall not be used as basis to determine any fact. As far as this author believes, except the above, any other evidence that proves any objective fact and thereby will influence the decision of the court should be admitted in general.          
IV. It Clarifies the Burden ofProof on the Plaintiff
The Administrative Procedure Law (effective in 1990) did not provide for the burden of proof on the plaintiff. However, in some cases, it would be difficult to determine the fact if the plaintiff submits no evidence. The Administrative P rocedure Law (amended i n 2014) provides that in the case where the defendant is accused of not performing its statutory responsibilities, the plaintiff should submit evidence for its right to request the defendant to do so, except if: (i) the defendant shall perform its duties ex-officio; or (ii) the plaintiff cannot provide any evidence due to justifiable causes.

In administrative compensation or indemnification cases, the plaintiff shall provide evidence for the damage it suffers as a result of the administrative action of the defendant. If the plaintiff fails to produce any evidence due to causes of the defendant, the burden of proof should be shifted onto the defendant.
V. It Perfects the System for the Judiciary to Take Evidence
To regulate the court in taking evidence upon request , the Administrative Procedure Law (amended in 2014) provides that the court has the right to obtain evidence from administrative bodies or other organizations or people. However, the court shall not go to collect evidence that has not been collected by the defendant during its administrative action, for the purpose of proving the legality of the administrative action. The plaintiff or any third party involved may request the court to obtain any of the following evidence, if it cannot obtain it by itself: (i) any evidence that is held by any government body and can only be taken by the court; (ii) any evidence that involves any secret of the state or any business or the privacy of any individual; or (iii) any other evidence that cannot be obtained by it due to objective causes.

In its framework, the new version of the Administrative Procedure Law clarifies two scenarios that the court may go to collect evidence: (i) if it deems it necessary to find out the fact, the court may, exofficio, obtain evidence from relevant administrative bodies or other organizations or people. For example, for a trademark granting or validation case, the court that has reasonable doubts about the truthfulness of the evidence from a party on the famousness of its mark may verify the same by obtaining evi dence f rom relevant administrative bodies or other organizations or people. However, it should not do so in order to prove the legality of the administrative action or collect any evidence that the defendant failed to collect during its administrative action; and ( ii ) the court may go to obtain evidence upon the request of a party. There are three scenarios where the plaintiff or any third party may request the court to obtain evidence. In trademark granting and validation cases, the plaintiff should take advantage of this empowering provision to create more sources of evidence and support its claim.
VI. It Addresses Any Additional Evidence that Either Party Produces During the Judicial
Proceedings
In the trial of trademark granting and validation cases, it often happens that new evidence is introduced by a party, which has not been submitted in the trademark review process. Such evidence can be typical new evidence from the perspective of the procedure law, or as a result of a party’s intentional delay in submitting it, mostly on the use or famousness of a trademark or the malicious intention of a party.

Strictly speaking, pursuant to the exclusive rule for case files, this new evidence, as submitted in the administrative proceedings but was not provided in the trademark review process, should not be admitted, because such new evidence is not the factual basis when the trademark administrator conducted the administrative action. Since the administrative procedure is used to determine the legality or not of an administrative action, by accepting such new evidence, the court would violate the exclusive case file rule and to some extent, encroach upon the foundation of the Administrative Procedure Law in finding out the legality or not of an administrative action. In the trial of trademark granting and validation cases, different courts take different approaches to any new evidence introduced by either party. It is not rare that a court accepts such evidence, deciding the trademark administrator as the losing party. Article 59 of the Provisions of the Supreme People’s Court on a Few Issues on Evidence in the Administrative Procedure (effective in 2002) provides that “If the defendant requests the plaintiff to provide evidence in accordance with the statutory process in the administrative procedure and if the plaintiff who can provide such evidence refuses to do so, then no such evidence, once provided in the judicial proceedings, shall be admitted by the court in general.” The article, which is more of a principle than a rule, is not further clarified in the Administrative Procedure Law as amended. As far as this author sees it, in the case of the above, to avoid the circuity of the procedure or the repetition of the proceedings, help solve administrative disputes in a substantive way, and stabilize the related rights as soon as practicable, in light of the development of the legislative system in China, such evidence should be admitted in general if it has not been created or obtained in ways that seriously damage the legal rights and interests of any other party, violate any prohibitive norms, or seriously break the public order or morality, and if it is sufficient to prove the objective fact and influence the decision of the court, provided that the reason to adopt such evidence should be included in the judgment and that the party who delays in submitting evidence should be ordered to pay the court fees.

To conclude, this author has given its personal perspectives on the Administrative Procedure Law as amended with respect to its provisions on the burden of proof and its allocation among the parties in trademark granting and validation cases. The amendments will certainly bring about both opportunities and challenges to the trial of these cases.
(Translated by Ren Qingtao)