1. Why Evidence Preservation Matters
Securities cases in China increasingly cross borders. A mainland-listed company may trade through Hong Kong brokerage accounts, keep cash in offshore banks in Singapore or the United States, and store trading records on cloud servers or in a foreign data center. When a dispute erupts or a CSRC investigation begins, this is exactly the evidence that disappears first: accounts are closed, emails are purged, messaging apps are wiped, and server logs are recycled on rolling retention schedules.
Evidence preservation exists because of this fragility. In civil securities disputes, a party can ask the court to seal, copy and fix evidence before it is destroyed or altered. In criminal cases โ insider trading, market manipulation, misuse of non-public information โ the evidence often sits with an overseas broker or bank, and both the prosecution and the defense need it intact. The window for action is short: once an account is frozen or a phone is wiped, the record is usually gone for good.
Data, accounts and communication records in securities cases can be destroyed within hours or days. The earlier preservation is applied for โ ideally before the other party knows a dispute is coming โ the more likely the evidence survives intact.
2. Evidence Preservation Under PRC Law
PRC law gives parties three related tools, all available in securities litigation. They can be used alone or together, depending on whether the goal is to fix evidence, to freeze money, or to stop the other side from destroying records.
๐ Article 81, Civil Procedure Law of the PRC (evidence preservation)
"Where evidence may be destroyed or lost, or is difficult to obtain later, a party may apply to the people's court for evidence preservation during the proceedings, and the people's court may also take preservative measures on its own initiative. Where circumstances are urgent and evidence may be destroyed or lost, or is difficult to obtain later, an interested person may apply to the people's court for evidence preservation before filing a lawsuit or applying for arbitration."
๐ Article 100, Civil Procedure Law of the PRC (asset & behavior preservation)
"Where it is possible that, due to the conduct of one party or for other reasons, a judgment may be difficult to execute, or other damage may be caused to a party, the people's court may, upon application of the other party, rule to preserve the property of the party, order it to perform a certain act, or prohibit it from performing a certain act; where the party has not applied, the people's court may also rule to take preservative measures when necessary."
๐ Article 54, Criminal Procedure Law of the PRC (legality of evidence)
"Confessions of criminal suspects or defendants obtained by torture or other illegal methods, and witness statements and victim statements obtained by violence, threats or other illegal methods, shall be excluded. Where physical or documentary evidence is collected in violation of statutory procedures and may seriously affect judicial impartiality, it shall be corrected or reasonably explained; where it cannot be corrected or reasonably explained, such evidence shall be excluded."
Behavior preservation, added by the 2012 amendment, is especially useful in cross-border securities cases: the court can order the opposing party to stop deleting records, or order a custodian such as a brokerage or bank to retain account and transaction data pending the main proceedings. In criminal cases, Article 54 of the Criminal Procedure Law protects defendants against evidence obtained illegally โ an issue that arises frequently where overseas evidence is collected and transferred between jurisdictions.
Preservation Types at a Glance
3. Cross-Border Channels for Evidence
When the evidence sits abroad, the routes are formalized. Which channel applies depends on where the evidence is located and whether the case is civil or criminal.
Hague Evidence Convention (1970)
For civil and commercial matters, evidence located in another contracting state can be obtained through a letter of request transmitted via the designated central authorities, and executed by the requested state's court.
Judicial Assistance Treaties & Arrangements
China has concluded bilateral judicial assistance treaties with many jurisdictions, and judicial assistance arrangements with Hong Kong and Macau in civil, commercial and criminal matters. Evidence is obtained through a formal request to the competent authority.
Notarization, Apostille & Transfer
Where the parties themselves produce overseas evidence, public documents are generally notarized abroad and then apostilled โ China applies the 1961 Hague Apostille Convention since 7 November 2023 โ or consular-legalized under treaty procedures. Hong Kong and Macau documents follow the notarization-and-transfer procedure.
International Criminal Judicial Assistance (2018)
In criminal securities cases, the public security organ or procuratorate obtains overseas evidence through international judicial assistance. Defense counsel may apply to obtain and preserve evidence, and may challenge evidence obtained by illegal or improper procedures.
The practical consequence: cross-border evidence preservation is not only about speed, it is also about route. Choosing the wrong channel โ or failing to authenticate evidence in time โ can make otherwise decisive records inadmissible. Read more: Cross-Border Enforcement: SEC & CSRC โ
4. Electronic Evidence in Chinese Courts
Most evidence in a cross-border securities case is electronic: WeChat and WeChat Pay records, emails, bank and brokerage transfer records, trading-platform logs, cloud files and server data. The Supreme People's Court Evidence Provisions (2020) set out specific rules on reviewing the authenticity of electronic data. The court will examine, among other things:
Whether the electronic data is stored on its original carrier or medium, and whether the storage device can be produced.
Whether the data has been altered or tampered with, and whether the extraction and production process can be reproduced.
The hardware and software environment in which the data was generated and stored, and the identity of the persons who created or controlled it.
A printout or screenshot alone is rarely enough โ preserve the original device where possible, use notarization or court-supervised extraction, and consider time-stamping or an evidence-preservation platform.
5. Practical Steps & Strategy
Apply Early
In urgent cases, apply for evidence preservation before filing the lawsuit. Courts generally rule within five days, and within 48 hours in urgent cases.
Define Scope Precisely
Identify each item of evidence, its custodian (broker, bank, cloud provider), its location, and what the court should do โ seal, copy, extract or preserve.
Involve Counsel Early
A lawyer maps the evidence, drafts the application, coordinates Hong Kong or overseas notarization and apostille, and appears before the court.
Prepare the Authentication Chain
Notarize abroad, apostille or consular-legalize, translate by a qualified translator, and submit. A missing link can make decisive evidence inadmissible.
Be Ready to Give Security
The court may require the applicant to provide a guarantee (bank guarantee, cash or insurance guarantee). Plan the form and funding in advance.
Exercise Defense Rights (Criminal)
Apply to the authorities to obtain or preserve evidence, and prepare to challenge evidence obtained illegally or without proper procedure under Article 54 of the Criminal Procedure Law.
6. Securities Cases: What to Preserve
HK Trading Account Records
KYC and account-opening files, order and execution records, settlement statements, margin calls, and mandate or authorization documents held by Hong Kong brokers.
Offshore Bank Statements & Fund Flows
Cross-border remittance records, correspondent-bank messages, beneficiary and source-of-funds documents that trace money across jurisdictions.
Overseas Servers & Cloud Data
Email archives, trading-platform logs, server access logs, and IP or device records stored on foreign servers and cloud infrastructure.
Communication Records
WhatsApp, WeChat, Signal and phone records, including call metadata, that evidence instructions, awareness and intent.
7. FAQ
Yes, but the court verifies authenticity. Public documents formed abroad generally need notarization in the country of origin and an apostille (China applies the Hague Apostille Convention since 7 November 2023) or consular legalization under treaty procedures. Hong Kong and Macau documents follow the notarization-and-transfer procedure. Electronic evidence is reviewed for authenticity under the SPC Evidence Provisions (2020).
Evidence preservation (Article 81) fixes evidence that may be destroyed or become difficult to obtain. Asset preservation (Article 100) freezes money or property to secure enforcement. Behavior preservation, also under Article 100 and added by the 2012 amendment, orders a party to do or refrain from doing something. They can be used together.
Notarize the document in the country where it was formed, then apostille it (China applies the Hague Apostille Convention since 7 November 2023) or complete consular legalization where treaty procedures apply. Hong Kong and Macau documents follow the notarization-and-transfer procedure. Qualified translation is also required. Plan early โ these procedures take time.
Yes. Under Article 81, where circumstances are urgent and evidence may be destroyed or become difficult to obtain, an interested party may apply for evidence preservation before filing the lawsuit or applying for arbitration. Courts generally rule within five days, and within 48 hours in urgent cases.
Courts generally decide within five days of receiving the application, and within 48 hours in urgent cases. The court weighs necessity, scope and security โ the applicant may need to provide a guarantee. Engaging counsel early narrows the scope and speeds the process.