Whether You can Use the Evidence Obtained in Breach of Contract?

Company Y required Company X to construct an E system, and provide maintenance services. Based on Y’s requirement, in the contract, both parties agreed that X’s staffs could only communicate and send documents by using the mailboxes provided by Y, and X’s staffs could not copy, or forward to other mailboxes. During the implementation of the contract, X’s staffs forwarded relevant emails to X’s company mailbox by BCC. Later then, both parties had disputes on the implementation of the contract, and X planned to use the relevant emails as evidence, but it worried that such evidence might not be accepted by the court, and it might be accountable for breach of contract as claimed by Y.

According to the “Civil Procedure Law” and the “Several Provisions of the Supreme People’s Court on Evidence for Civil Actions (Amended in 2019)”, the validity of an evidence mainly refers to “whether the evidence conforms to the law in terms of form or source”. However, the relevant laws and regulations have not mentioned the validity of evidence obtained in breach of contract.

In judicial practice, the courts have not formed clear and unified judgment rules. The validity of such evidence may be determined case by case.

In the case (2020) Hu 02 Min Zhong No.5872, Company Y signed a “Labor Contract” and a “Confidentiality Agreement” with Tian. Both parties agreed that Tian should not inquire about or disclose Y’s trade secrets, such as the information of Y’s suppliers, Y’s client list, and other business information. If Tian has violated the confidentiality obligation, he should not only correct such behavior immediately, but also pay Y a penalty of RMB 200,000. In order to prove that Tian had violated the confidentiality obligation, Y provided evidence which were found in Tian’s private mailbox. The court of first instance held that the evidence was obtained from Tian’s private mailbox, because Tian set an automatically login on Y’s computer, and the validity of such evidence should be confirmed. However, the court of second instance pointed out that, “the evidence provided by Y could prove that Tian had forwarded Y’s business information to his private mailbox. According to the “Confidentiality Agreement”, Tian should not copy or extract relevant business information. Since Tian’s private mailbox had so many Y’s business information, Tian had violated the confidentiality obligations, and Tian should delete relevant information and continue to perform the confidentiality obligation.” Although the court did not explain the validity of such evidence, it still used such evidence to support Y.

In some labor dispute cases, in order to prove the amount of wages, overtime work, performance and etc., when employee provided evidence with the source that he forwarded relevant documents to his private mailbox, normally the court would not accepted such evidence. The courts usually states that such forwarded emails are not the original copies, and they could be modified; if the employer refuses to confirm the authenticity of such evidence, the court could not identify the authenticity and validity of such evidence. For example, (2020)Hu 01Min No.7077, (2019) Hu 02 Min Zhong No.6307, (2018) Lu 06 Min Zhong No.2406, (2018) Hu 0115 Min Chu No.10675, and (2018) Hu 0110 Min Chu No.730.

There is another circumstance. It is agreed that nobody could provide the evaluation report or specified appraisal report to a third party, only when the evaluation agency had approved in advance. If a plaintiff provided such report which obtained without the approval of the evaluation agency as evidence, and the defendant argues that the source of the evidence is illegal. Normally, many courts would confirm the validity of such evidence, because it is closely related to the case, and the authenticity could be confirmed. For example, (2020) Zhe 0782 Min Chu No. 5688, and (2020) Xiang 13 Min Chu No.14.

In view of the above cases, although validity of such evidence may be determined case by case, we could find some trends in related to the identification of the validity of such evidence.

Firstly, the validity of the evaluation reports, or appraisal reports issued by authoritative agencies, is usually confirmed by the court, even though they are obtained in breach of contract.

Secondly, the validity of the evidence obtained in breach of contract in commercial disputes, is very likely to be confirmed by the court. The courts may have two reasons: (a) such evidence has not been disclosed to irrelevant parties; and (b) such evidence is only used in the trials, if such evidence involving trade secrets, any of the parties could apply for non-disclosure hearing. If any party claims for the liability of breach of contract, it could file another lawsuit on this dispute. However, for the labor disputes, normally the court would not accept such evidence.