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Session 2: Constitution, Judiciary and Public Powers
Structure
2.2. Interactions between National and Supranational Levels of
Jurisdiction
Speaker
Prof. Sabino CASSESE, Justice, Italian Constitutional Court and Emeritus
professor at the « Scuola Normale Superiore » of Pisa, Italy
Prof. Zhuhao WANG, China University of Political Science and Law, China
Session 2: Constitution, Judiciary and Public Powers Structure
168 International Association of Procedural Law Seoul Conference 2014
Sabino CASSESE
Report:
Sabino Cassese Interactions between National and
Supranational Levels of Jurisdiction*
1. Ships passing in the night?
Only a decade ago, the French scholar Louis Favoreu wrote that “constitutional
courts are the last bulwark of State sovereignty”, and that “they cannot be subject to
external checks”1.
Today, constitutional courts no longer have the final say, but dialogue with lower
and superior courts. They review legislation, but are held in check by other judges.
Constitutional courts are neither a bulwark nor an instrument of State sovereignty,
which is now shared itself.
Ten years ago, constitutional courts could at most be defined as “ships passing in
the night”, to use Henry Wadsworth Longfellow’s poetic metaphor; in other words, they
had episodic and fleeting contacts with each other.
Today, they belong to a “choir” of courts, all committed to the same task of
protecting citizens’ rights.
According to the “Project on International Tribunals and Courts”, there are 125
supranational and international courts. To these, one must add an equivalent number of
quasi-judicial bodies – “Compliance Committees”, “Inspection Panels”, “Article 1904
NAFTA Binational Panels”, “Administrative Panels of the WIPO Arbitration and
Mediation Centre for Uniform Domain Name Dispute Resolution”, and the like. If one
compares these numbers with the number of States (the Member States of the UN are
currently 193), it is easy to see that there are many more courts than States.
The great majority of these courts was established in the last twenty years. Since
the 1990s, the number of international courts and tribunals has grown rapidly 2 :
compulsory means of quasi-judicial dispute settlement have been developed, whereby
the complaining party can bring his case before an impartial body and the party against
whom the complaint is brought cannot avoid a third party decision.
Not long before, there were only six operative international courts. In the years
between 1985 and 2000, fifteen new permanent adjudicative mechanisms and eight
quasi-judicial procedures were introduced3.
1 L. Favoreu, Corti costituzionali nazionali e Corte europea dei diritti dell’uomo, in “Rivista di diritto
costituzionale”, 2004, n. 1, p. 11. By the same author, see also Les Cours de Strasbourg et de Luxembourg
ne sont pas des cours constitutionnelles, in “Au carrefour des droits : Mélanges en l’honneur de Louis
Dubouis”, Paris, Dalloz, 2012. Author’s translations from the Italian. 2 For further details, see R. Mackenzie, C. Romano, Y. Shany and P. Sands, The Manual on International
Courts and Tribunals, Oxford, Oxford University Press, 2010. 3 Y. Shany, The Competing Jurisdictions of International Courts and Tribunals, Oxford University Press,
2003, pp. 3, 5, 7-8 and, more recently, Regulating Jurisdictional Relations between National and
International Courts, Oxford, Oxford University Press, 2007.
Sabino CASSESE (Italy)
International Association of Procedural Law Seoul Conference 2014 169
Previously, it was generally agreed that “law without adjudication is […] the
normal situation in international affairs”;4
and, according to Article 33(1) of the
Charter of the United Nations, parties can choose any means they wish for the peaceful
settlement of disputes.
The family of global courts and quasi-judicial bodies includes very diverse
institutions, such as the WTO’s DSB, the EU’s ECJ, the Court of Arbitration for Sport,
the WB’s IP, the Aarhus Convention Compliance Committee, the ICTY, the ICC. The
latter does not judge cases or controversies, but “situations”; the WTO AB can authorize
retaliatory measures, i.e. judge-controlled infringements of the law; the Aarhus
Convention Compliance Committee can impose obligations for the future, and therefore
is not only a “re-active” body, but also a “pro-active” body5.
2. The infallibility of supreme courts
I will begin this exposition with a famous quote from the U.S. Justice Robert
Houghwout Jackson. Appointed to the Supreme Court by Franklin Delano Roosevelt, he
was later chosen by President Truman to act as Chief Prosecutor at the Nuremberg trials
– the role which brought him international prominence. As a Justice of the Supreme
Court, in Brown v. Allen6 Jackson wrote the renowned phrase “we are not final because
we are infallible, but we are infallible only because we are final”. This statement has
always been interpreted as a warning to judges, to be conscious of their own fallibility.
However, this oft-cited passage is the conclusion of a broader line of reasoning.
Jackson wrote that “[c]onflict with state courts is the inevitable result of giving the
convict a virtual new trial before a federal court sitting without a jury. Whenever
decisions of one court are reviewed by another, a percentage of them are reversed. That
reflects a difference in outlook normally found between personnel comprising different
courts. However, reversal by a higher court is not proof that justice is thereby better
done. There is no doubt that if there were a super-Supreme Court, a substantial
proportion of our reversals of state courts would also be reversed. We are not final
because we are infallible, but we are infallible only because we are final”.
Thus, Jackson perceived the Supreme Court’s strength to lie in its “finality”, its
solitary position at the apex of the legal system, pursuant to which it has the final say
and therefore becomes infallible. If a court superior to the Supreme Court existed, he
argued, many of the latter’s decisions would be reversed.
Justice Jackson’s theoretical hypothesis is now becoming a reality. National
legal systems are opening to supranational law. The latter features courts that often
decide differently from national supreme courts. These, in turn, are required to consider
4 J. G. Merrills, International Dispute Settlement, Cambridge, Cambridge University Press, 2005, 4
th ed.,
reprinted 2007, p. 237. 5 In other words, a quasi-judicial global body possesses a lawmaking function: this situation presents the
benefit of an expert and impartial lawmaker, but the cost of an absence of division of powers. 6 344 U.D. 443, 1953.
Session 2: Constitution, Judiciary and Public Powers Structure
170 International Association of Procedural Law Seoul Conference 2014
the decisions issued by, and dialogue with, courts beyond the State. In addition,
supranational law’s infiltration into national legal systems also authorizes “lower”
national judges to pronounce themselves upon the constitutionality of legislation; in
other words, “lower” judges can now take possession of the Constitution and evaluate
the constitutionality of norms, interpreting them in a constitutionally-compatible manner,
and stopping only when obliged to refer them to the constitutional court, the only body
empowered to strike them down7. Thus, reviews for constitutionality become diffuse,
and at the same time, constitutional courts’ once-exclusive position is eroded. This also
leads to a change in the very nature of supreme courts’ review for constitutionality.
3. The transnational law of liberties
In this Section, I will briefly examine the steps of this complex evolution.
The starting point is the opening of national legal systems to non-national law –
the phenomenon that German jurists call Völkerrechtsfreundlichkeit. An example is
Article 25 of the German Grundgesetz, which states that the general rules of
international law are an integral part of the federal law, that they take precedence over
national law and that they directly create rights and obligations for German citizens.
Also, Articles 232 and 233 of the Constitution of the Republic of South Africa state that
customary international law is law in the South African legal system, unless it is
inconsistent with the Constitution or with an Act of Parliament; in addition, when
interpreting legislation, courts must prefer an interpretation that is consistent with
international law. Further examples are Articles 10 and 11 of the Italian Constitution,
according to which the Italian legal system must conform to the generally recognized
norms of international law, and consents to limitations of its sovereignty.
Therefore, national law retracts, while supranational law prevails. International
treaties and agreements proliferate: the European Convention on Human Rights, the
Charter of Fundamental Rights of the European Union, the American Convention on
Human Rights, the Treaty Establishing the Economic Community of West African
States, the Universal Declaration of Human Rights, the International Covenant on Civil
and Political Rights, the International Covenant on Economic, Social and Cultural
Rights, etc.
International agreements such as these contain rules to ensure and protect
citizens’ rights; as if “shadow” or “surrogate” constitutions, these rules overlap (and
sometimes conflict) with those enshrined in national constitutions.
The opening of national constitutional orders and the development of global
norms give rise to a third phenomenon: “domestification”8, the process through which
international human rights become effective within national legal orders. Treaties and
conventions become national law, which can be enforced in national courts.
7 S. Cassese, La giustizia costituzionale: lo stato presente, in “Rivista trimestrale di diritto pubblico”, pp.
505 – 506. 8 A. Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in
Europa, in “Global Constitutionalism”, 2012, n. 1, p. 53.
Sabino CASSESE (Italy)
International Association of Procedural Law Seoul Conference 2014 171
This “incorporation” can take place in various ways. However, in all cases,
international norms do not enter national systems on the basis of hierarchical or
“arborescent”9 criteria, and do not affirm themselves therein on the basis of their
supremacy, but rather, by virtue of their “primacy” (a distinction first made by the
Spanish Tribunal Constitucional), they assume a place alongside national norms, “one
next to the other”10. The Italian Constitutional Court has noted that the different
formulations of the various catalogues of rights “integrate one another, completing each
other by means of interpretation”11 (Judgment N. 388 of 1999).
However, supranational law is gradually acquiring greater strength, as recently
noted also by the Swiss Supreme Court in the Thurgovia case (2C_828/2011, of 2012),
concerning the European Convention on Human Rights.
Therefore, we are witnessing the development of what Mauro Cappelletti,
twenty years ago, called the “transnational law of liberties”; a development that can be
ascribed, on one hand, to the decline of the nation-State as the sole source of law and
justice, and on the other, to the international opening of national legal systems12.
4. New guardians of the liberties
The plurality of national and supranational charters is accompanied by another
phenomenon: a proliferation of guardians of the liberties, at both supranational/global
and national levels.
In the supranational and global contexts, there are the European Court of Human
Rights (ECtHR), the Court of Justice of the European Union, the Inter-American Court
of Human Rights, the Court of Justice of the Economic Community of West African
States, the African Court of Justice for Human and Peoples’ Rights.
However, these courts are not the only guardians of the rights enshrined in the
constitutional charters they apply. Indeed, due to domestification, the treaties,
agreements, covenants and charters that guarantee rights and freedoms are also part of
national legal systems. Therefore, national courts too are guardians of these rights and
freedoms.
The decisions of supranational courts on individuals’ rights are binding in
national legal systems, albeit in different ways, depending upon the regions and
countries involved. An example is Serap v. Republic of Nigeria, handed down by the
African Court of Justice for Human and Peoples’ Rights in 2012 (ECW/CCJ/JUD
18/12). The case concerned the right to health, to adequate living standards and to
protection of the environment in the Niger Delta. Another example is the decision of the
Inter-American Court of Human Rights in Padilla Pacheco (912/2010), a case raising
issues relating to the right to life, personal integrity, freedom and judicial protection.
9 M. Vogliotti, La fine del “grande stile” e la ricerca di una nuova identità per la scienza giuridica, in V.
Barsotti (ed.), L’identità della scienza giuridica in ordinamenti multilivello, Rimini, Maggioli, pp. 97 et
seq. 10
A. Ruggeri, Rapporti tra Corte costituzionale e Corti europee, bilanciamenti e “controlimiti” mobili, a
garanzia dei diritti fondamentali, in Associazione italiana dei costituzionalisti, n. 1, 2001, pp. 8 and 11. 11
M. Vogliotti, op. cit., p. 113. 12
M. Cappelletti, Giustizia, in “Enciclopedia delle scienze sociali”, Treccani, Rome, 1994.
Session 2: Constitution, Judiciary and Public Powers Structure
172 International Association of Procedural Law Seoul Conference 2014
Supranational law percolates into national legal orders in many different ways,
which makes it difficult to draw a general conclusion. Does the European Convention of
Human Rights have supra-constitutional status (as in the Netherlands), constitutional
status (as in Austria) or sub-constitutional status, as in Italy13
? Or does it rank as
ordinary legislation, with the consequence that a subsequent national law can nullify
rights acquired at the supranational level? Also, how can rights granted in a broader
context be coordinated with those granted at the national level?
As for judicial protection, is it better for national courts – as ordinary courts
called upon to apply also those supranational norms that guarantee rights – to declare
the inapplicability of national law that is inconsistent with supranational law, even if the
national measure was enacted subsequently? Or would it be preferable for domestic
courts to refer inconsistent domestic norms to their respective constitutional courts, to
be struck down?
In addition to relations between legal systems and their respective rules, there
are also relations between the various courts and their respective powers. The
configuration of the latter type of ties may assume several different shapes. National
courts may apply supranational norms directly, or may refer decisions on domestic
violations of rights to supranational courts. Domestic judges may evaluate the
observance of rights enshrined in supranational norms and directly declare the
inapplicability of the conflicting domestic norms (as occurs in Italy for EU law).
Otherwise, once they have performed this check, national judges may also defer the task
of striking down the non-compatible domestic norms to other national courts (i.e.
constitutional courts) as did the Italian Constitutional Court in 2007, on the European
Convention of Human Rights. Domestic courts may adapt to supranational law as
interpreted by supranational courts (as occurs in Italy), or may be obliged only to
“consider” the interpretation of supranational law given by the relevant judges (as in
Germany and the United Kingdom).
Such a complex situation requires adaptations and collaboration. The former
were introduced by means of norms (e.g. the principle of the prior exhaustion of
national remedies, in the case of the European Convention of Human Rights, or the
principle of subsidiarity, introduced in the same context by the Protocol N. 15 recently
added to the Convention), or of “judge-made law” (such as the doctrine of national
margin of appreciation introduced by the Strasbourg Court in relation to the application
of the European Convention of Human Rights; or the doctrines of the “supreme
principles” and of “counter-limits” – controlimiti – formulated by the Italian
Constitutional Court in relation to EU law, in Judgments N.s 30 of 1971 and 183 of
1973).
Second, this complex situation requires increasingly close collaboration between
judicial systems, especially between supreme or constitutional courts; this is achieved
by increasing both references to each others’ case law, and meetings and contacts.
However, this too is not enough, because some countries attempt to evade this
system of mutual checks. An example is the United Kingdom, where it has been
13
Most recently, see S. Bartole, Giustizia costituzionale (sviluppi recenti), in “Enciclopedia del diritto”,
2014, pp. 504 et seq., and G. D’Amico – D. Tega, 1993 – 2013: la Corte costituzionale tra giurisdizione e
politica, forthcoming, pp. 12 et seq. of the manuscript.
Sabino CASSESE (Italy)
International Association of Procedural Law Seoul Conference 2014 173
lamented that its free people, the historical pioneer of the path towards freedom and
democracy, is forced to renounce self-government; and they wish “to make [their]
Supreme Court supreme”14
. The UK situation will not be examined in detail here; I will
only recall that the reactions registered there can also be ascribed to the absence of a
national written constitution, that can act as a barrier or filter to the automatic
incorporation of supranational law. Such a “gap” is not filled by the enactment of the
Human Rights Act 1998.
5. Constitutional courts are no longer alone
In this framework, constitutional courts’ tasks are eroded from above and below,
and their powers are limited by the need to take into consideration supranational courts’
case law . However, while constitutional courts (partially) lose the ability to have the
final say, while they must also heed the opinions of other courts, they also become less
solitary bodies, as they acquire a new role: that of interlocutors with supranational legal
orders, of arbiters of the opening and closing of domestic legal systems, and even of the
speed at which supranational legal orders progress (consider the role of the German
Bundesverfassungsgericht with its judgments on the Lisbon Treaty15
and on the ECB’s
OMTs). The overall beneficiaries of this evolution are national civil societies, given the
consequent expansion of rights and the diffusion of the checks on their observance by
legislative and executive bodies.
However, it would be wrong to affirm that the changes end here. The evolution
described thus far also affects the very nature of constitutional courts’ work, and on the
horizontal expansion of the checks on the observance of rights.
The choral nature of the checks on the compliance with national and
supranational charters transforms the nature of the judgments issued by constitutional
courts, enhancing a specific component thereof: the evaluation of the reasonableness
and proportionality of national measures. Constitutional courts are increasingly called
upon to compare and weigh rules and their applications at both national and
supranational levels: for example, courts may be asked to ascertain whether individuals
deprived of their personal freedom can also be deprived of their right to vote; or
whether private parties against whom judgment was delivered on the basis of
irregularly-collected evidence are entitled to fresh proceedings (these cases involved the
UK and Italy respectively). When dual protection is available, the task of comparing,
weighing, and evaluating the proportionality and reasonableness of the various feasible
interpretative outcomes is enhanced. Indeed, this keeps reviewers under review, and
avoids arbitrary decisions on their part.
A related aspect is the courts’ task of advancing the protection of rights, a task
which they pursue with highly diverse formulations, such as the “maximum expression
14
D. G. Green, The Demise of the Free State: Why British Democracy and the EU don’t mix, Civitas,
London, March 2014. 15
S. Cassese, L’Unione europea e il guinzaglio tedesco, in “Giornale di diritto amministrativo” n. 9, 2009,
pp. 1003-1007.
Session 2: Constitution, Judiciary and Public Powers Structure
174 International Association of Procedural Law Seoul Conference 2014
of guarantees” asserted by the Italian Constitutional Court (Judgment N. 317 of 2009,
echoing a famous phrase coined by Paolo Barile16
); or the principle of “progressivity of
protection” endorsed by the Argentinian Supreme Court, according to which “all state
measures having deliberately regressive nature in terms of human rights require a more
accurate consideration, and must be fully justified in terms of the entirety of rights
foreseen”17
. In these cases, courts must clearly engage in comparison and weighing.
Second, vertical openness induces horizontal openness. National courts take into
consideration decisions issued by supranational courts, even though these may concern
other countries and do not apply to it stricto sensu (e.g. the Mexican Supreme Court’s
report on the Padilla Pacheco case, mentioned above). The laws of other countries gain
relevance for supranational judges who decide a case involving a different country, as
occurs, for example, with the ECtHR’s doctrine of consensus: according to this doctrine,
when reviewing the proportionality of a country’s application of its margin of
appreciation, the ECtHR must consider how many ECHR Contracting States have
adopted a certain measure (for example, how many have accepted abortion or divorce).
Domestic courts become interested in acquainting themselves with the legal solutions
adopted in other countries, due to the implications that these may have in subsequent
judgments concerning the domestic system.
6. A “great disarray” or “the greatest triumph of
constitutional courts”?
Over thirty years ago, the afore-cited Louis Favoreu wondered “if, in a few years’
time, we will be able to make sense of the tangle of competences on the protection of
fundamental rights in Europe”18. Ten years ago, he returned to the subject in an even
more pessimistic tone, observing that “a great disarray appears to be taking shape”, a
“tangle of competences”, which he deemed to be “counterproductive” and
“catastrophic”19. He described the European “jurisdictional landscape” thus: “Ordinary
jurisdictions […] apply the Constitution, the European Convention on Human Rights
and general principles of European law, and soon, undoubtedly, the Nice Charter.
Constitutional courts apply their own constitutions, which contain a catalogue of
fundamental rights and, exceptionally, the European Convention on Human Rights; the
Luxembourg Court applies the case law of the Charter of Fundamental Rights (pending
the implementation of the Nice Charter) and possibly the European Convention on
Human Rights; the European [Strasbourg] Court applies the European Convention on
Human Rights, “imposing” its interpretations upon ordinary jurisdictions, in some cases
16
P. Barile, Diritti dell’uomo e libertà fondamentali, Bologna, Il Mulino, 1984, p. 41. 17
Most recently, see Corte Suprema de Justicia de la Nación, Asociación de Trabajadores del Estado, 18
June 2013. 18
L. Favoreu, Avertissement – article n. 2, in “Revue internationale de droit comparé”, 1981, avril –
juin, n. 2, vol. 33, pp. 251-253, cited in L. Favoreu, Corti, op. cit., p. 17. Author’s translation from the
Italian. 19
L. Favoreu, Corti, op. cit., p. 18. Author’s translation from the Italian.
Sabino CASSESE (Italy)
International Association of Procedural Law Seoul Conference 2014 175
even upon constitutional courts, but without a real “constitutional authority” to do so,
since it cannot invalidate domestic acts”20.
More recently, Maria Rosaria Ferrarese has noted that the proliferation of
judicial and para-judicial bodies prompts a paradox: a “contraction of the […] role” of
constitutional courts yet, at the same time, their “triumph”21. The proliferation of
institutions empowered to have the final say indicates that what truly matters is not who
speaks last, but rather, who participates in the dialogue.
Supreme or constitutional courts are caught in a continuous conflict, or at least
tension, with politics: more precisely, with legislative bodies. In addition to this tension,
a new one has emerged: that between domestic legal orders on one hand, and
supranational/global ones on the other. In this context, courts are often called upon to
perform various functions – intermediation, limitation, prompt – and in this respect,
their attitudes differ greatly. See, for example, the case of prisoners’ voting rights, and
the relations between the UK Supreme Court and the Council of Europe and ECtHR; the
German Federal Constitutional Tribunal’s decisions concerning its relations with the
European Union (Solange and Ja, aber cases); the cases on relief teachers, the Italian
Constitutional Court and EU law; Swiss pensions, the Council of Europe and the
Strasbourg Court; and the US Supreme Court on cases involving the death penalty and
detention without trial.
These tensions certainly have a cost, as they introduce complexity and some
confusion into legal systems. However, they also bring great benefits, both because they
broaden the protection of citizens’ rights, and because citizens are pushed – due to the
system’s provisional nature – to constantly seek new ways to obtain this protection.
20
L. Favoreu, Corti, op. cit., p. 119. Author’s translation from the Italian. 21
M. R. Ferrarese, Dal “verbo” legislativo a chi dice l’”ultima parola”: le Corti costituzionali e la rete
giudiziaria, in “Annuario di diritto comparato e di studi legislativi”, 2011, pp. 63 et seq.
Session 2: Constitution, Judiciary and Public Powers Structure
176 International Association of Procedural Law Seoul Conference 2014
Zhuhao Wang*
Jia Li**
Interactions between National Judicial Practice and
Supranational Legal Values: Reflections on China’s Evidence
Legislation Development
ABSTRACT
Like other civil law countries, China does not have an
evidence code. Its evidence rules are scattered among respective
procedural codes. Since the beginning of this century, Chinese
scholars and practitioners have engaged in a movement toward
specialized evidence legislation. During this movement, a good
number of judicial interpretations, amendments to existing
procedural laws, and experimental drafts of evidence statutes have
surfaced. The most recent developments are the 2012 amendments
to the Civil Procedure Law and the Criminal Procedure Law (both
came into effect on January 1, 2013); and more importantly, two
experimental drafts of comprehensive evidence legislation initiated
by the Supreme People’s Court—the People’s Courts Uniform
Provisions of Evidence in 2008 and the People’s Courts Provisions
of Evidence in Litigation in 2012. Both drafts contemplate an
ultimate conversion to a comprehensive evidence statute. In both
drafts, one can easily identify traces of elements that are regularly
seen in the evidence laws of common law countries, from
terminology, to methodology, to legal principle. Yet both drafts
maintain significant traditions found in Chinese law and culture,
and both demonstrate creativity in certain aspects.
This paper analyzes the latest developments in China’s
evidence legislation as a case study to the interactions between
national legislative practice and supranational legal values.
China’s example shows that reforming one nation’s legislation in
the global context is a process of modernization, in which the
recipient nation embraces universally recognized values by
incorporating elements fostering these values into its law. But the
incorporation of these elements varies in each recipient nation due
to push back by local factors, including but not limited to local
context, culture, sentiment and institutional traditions. Throughout
this process, local traditions and new ideas coexist with
supranational legal values, creating laws unique to the recipient
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 177
nation. This paper argues that this modernization process leads to
diversified expressions of global legal culture.
Introduction
There is an interesting paradox: although the concept of codification
originated in the civil law system1, most civil law countries do not appear
interested in creating a statute specifically for evidence.2 Their rules governing
evidence are typically scattered among various procedural statutes.3 So far, no
civil law county has enacted separate evidence legislation.4 Judges in civil law
countries generally follow the principle of free evaluation of
* Fellow, the 2011 Plan - Collaborative Innovation Center of Judicial Civilization, China; Assistant
Professor, Institute of Evidence Law and Forensic Science, China University of Political Science and Law;
Member of Drafting Group, the People’s Courts Provisions of Evidence in Litigation in 2012; L.L.M.,
University of Pennsylvania Law School, Class of 2007; J.D., Indiana University Maurer School of Law,
Class of 2011. Email: wangzhuhao@cupl.edu.cn. This article is interim research product for China
Ministry of Education–Project of Humanities and Social Sciences (Project No. 13YJC820073) (本文系教
育部人文社会科学研究项目 2013 年青年基金项目“证人弹劾制度研究”阶段性成果,项目编号:
13YJC820073).
** J.D., Indiana University Maurer School of Law, Class of 2014; Editor-in-Chief, Indiana Journal of
Global Legal Studies, Vol. 21. 1 Yi Yanyou (易延友), Zhengju Guize de Fadianhua—Meiguo《Lianbang Zhengju Guize》 de Zhiding ji
Dui Woguo Zhengju Lifa de Qishi (证据规则的法典化—美国《联邦证据规则》的制定及对我国证据立法
的启示) [The Codification of Evidence Law: The Enactment of the U.S. Federal Rules of Evidence and
the Inspiration It Provides to Our Evidence Law Legislation], 26 ZHENGFA LUNTAN (政法论坛) [TRIBUNE
OF POLITICAL SCIENCE AND LAW] 80, 80-82 (2008) (China). 2 Wu Danhong (吴丹红), Zhongguo Zhengju Lifa de Lixiangyu Xianshi (中国证据立法的理想与现实)
[The Ideal and Reality of Evidence Law Legislation in China], ZHONGGUO MINSHANG FALU WANG (中国
民商法律网) [CCCL] [CHINA CIVIL AND COMMERCIAL LAW] (Dec. 7, 2010),
http://www.civillaw.com.cn/article/default.asp?id=51456 (last visited Aug. 7, 2014) (China). 3 See Wu Danhong (吴丹红), Zhengju Faxue Yanjiu de Misi—Zai Xifang Yangben he Zhongguo Xianshi
Zhijian (证据法学研究的迷思—在西方样本和中国现实之间) [The Myth in Evidence Law Studies:
Between Western Samples and the Reality in China], 24 ZHENGFA LUNTAN (ZHONGGUO ZHENGFA DAXUE
XUEBAO) (政法论坛 (中国政法大学学报)) [TRIBUNE OF POLITICAL SCIENCE AND LAW (J. CHINA U.
POLITICAL SCI. L.)] 17, 19 (2006) (Stating that in civil law countries such as Germany and France,
evidence-related rules scatter in their codes of civil procedure, criminal procedure, and so forth) (China). 4 Zhang Baosheng (张保生), Zhengju Guize de Jiazhi Jichu he Lilun Tixi (证据规则的价值基础和理论体
系) [The Value Basis and Theoretical System of Rules of Evidence], , available at
http://mall.cnki.net/magazine/Article/LAWS200802011.htm (last visited Aug. 7, 2014) (China).
Session 2: Constitution, Judiciary and Public Powers Structure
178 International Association of Procedural Law Seoul Conference 2014
evidence(法官自由心证), which is highly discretionary5, and it probably explains
why civil law countries do not see the need to have separate evidence legislation.
However, on the other hand, and almost counter-intuitively, sophisticated
separate evidence legislation now exists in many common law countries which
traditionally relied mainly on case law.6 The most representative is the United
States Federal Rules of Evidence (hereinafter the “FRE”).7
However, it seems that China is on the way to breaking the paradox. Like
other civil law countries, the code-based legal system in China still does not have
a separate evidence statute. However, following China’s judicial reform in the
late twentieth century, over the past decade an unprecedented amount of effort
has gone into the study and development of evidence law in China.8 Some
scholars call it an “evidence legislation movement” (hereinafter the
“Movement”).9 The Movement is fruitful and influential; for example, it led to
the 2012 amendments to China’s Criminal Procedure Law10
and to the Civil
Procedure Law11
.
Most interestingly, the Movement has recently proposed two significant
sets of legislative change. The first, the People’s Courts Uniform Provisions of
Evidence (hereinafter the “2008 Evidence Provisions”) resembles the FRE in a
number of significant aspects12
; but the second set (up to date still under revision,
5 He Jiahong (何家弘) & Yao Yongji (姚永吉), Liangda Faxi Zhengju Zhidu Bijiao Lun (两大法系证据
制度比较论) [On the Comparison of the Evidence System in the Two Main Legal Systems], BIJIAO FA
YANJIU (比较法研究) [COMPARATIVE LAW STUDIES], no. 4, 2003, at 65, 64-65 (China). 6 Yi Yanyou, supra note 1, at 81-82 (discussing the history of enacting evidence statutes in Indiana, the
U.K., and the U.S), FAXUE YANJIU (法学研究) [CHINESE JOURNAL OF LAW], no. 2, 2008. 7 E.g., Id. at 80 (commenting that the legislation of evidence law has reached a high level in common law
countries; “particularly, the U.S. Federal Rules of Evidence is an outstanding representative”); He Jiahong
(何家弘), Zhengju Fa Gongnengzhi Tantao (证据法功能之探讨) [A Discussion of the Function of
Evidence Law], FA SHANG YANJIU (法商研究) [STUDIES IN LAW AND BUSINESS], no. 2, 2008, available at
http://article.chinalawinfo.com/Article_Detail.asp?ArticleID=52486 (last visited Jan. 7, 2013) (China). 8 Wang Jinxi (王进喜), Zhengju Kexue de Liangge Weidu (证据科学的两个维度) [The Two Dimensions
of Evidence Science], 27 ZHENGFA LUNTAN (政法论坛) [TRIBUNE OF POLITICAL SCIENCE AND LAW] 150,
150 (2009) (stating that starting from the beginning of the twenty-first century, the studies of evidence
law have become “unprecedentedly prosperous” in China) (China). 9 Id.
10 Xingshi Susong Fa (刑事诉讼法) [China’s Criminal Procedure Law] (promulgated by the Standing
Comm. Nat’l People’s Cong., Mar. 14, 2012, effective Jan. 1, 2013), available at
http://www.gov.cn/flfg/2012-03/17/content_2094354.htm (last visited Aug. 16, 2014) [hereinafter 2012
Criminal Procedure Law]. 11
Minshi Susong Fa (民事诉讼法) [China’s Civil Procedure Law] (promulgated by the Standing Comm.
Nat’l People’s Cong., Aug. 31, 2012, effective Jan. 1, 2013), available at http://www.gov.cn/flfg/2012-
09/01/content_2214662.htm (last visited Aug. 16, 2014) [hereinafter 2012 Civil Procedure Law]. 12
ZHANG BAOSHENG (张保生), RENMIN FAYUAN TONGYI ZHENGJU GUIDING JI LUNZHENG (SIFA JIESHI
JIANYI GAO) (人民法院统一证据规则(司法解释建议稿)及论证) [PEOPLE’S COURTS UNIFORM
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 179
expected to be finalized by the end of 2014), the People’s Courts Provisions of
Evidence in Litigation (hereinafter the “2012 Evidence Provisions”), have
significantly moved away from this approach.13
.
The Movement could be seen as reflection of a vigorous interaction
between national judicial practice and supranational legal values. On the one
hand, universally recognized values in evidence law once introduced into China
have shown a strong vitality, quickly and widely being accepted by mainstream
legislative, judicial and academic sectors in the country.14
On the other hand, due
to local traditions such as peculiarities in China’s Constitution, its judicial system,
procedural laws and local practice of dispute resolutions, the Movement
encounters obstacles and resistance.15
Each minor development in the Movement
involves an evolutionary process that re-creates the local culture by incorporating
universally upheld values in a way unique to the people.16
By the end of this
process, national judicial practice may either accept or resist supranational legal
values, depending on compatibility between these two.17
Occasionally, certain
particular national judicial practice may even evolve into some new trend of
supranational legal values.18
This paper analyzes the latest developments in China’s evidence
legislation as a case study in interactions between national judicial practice and
supranational legal values. Part I provides a brief summary of the latest
developments of the Movement. Part II explores two major impetuses behind the
Movement, notably the Chinese people’s pledge to resist miscarriages of justice
and the impact of supranational values as a sign of legal globalization. Part III
itemizes five featured supranational values and four local contextualized factors
that play defining roles in the Movement. Part IV highlights landmark aspects in
the 2008 Evidence Provisions and the 2012 Evidence Provisions from a
comparative law perspective, to look into the interaction between local factors
and supranational values in the Movement. Part V concludes that the Movement
demonstrates a trail of modernization that will likely shape China’s new identity
in the global legal society, and add to the diversity of modern legal systems.
PROVISIONS OF EVIDENCE (PROPOSED JUDICIAL INTERPRETATIONS) AND ANALYSIS] (2008) (China)
[hereinafter 2008 Evidence Provisions]. 13
Zhang Jun (张军), Renmin Fayuan Susong Zhengju Guiding (Taolun Xiuding Gao) (人民法院诉讼证
据规则(讨论修订稿)) [People’s Courts Provisions of Evidence in Litigation (Working Draft)] (2012)
(unpublished draft) (on file with the Institute of Evidence Law and Forensic Science at China University
of Political Science and Law) (China) [hereinafter 2012 Evidence Provisions]. 14
See discussions in greater detail in Part III.A of this paper. 15
See discussions in greater detail in Part III.B of this paper. 16
See discussions in greater detail in Part II.B of this paper. 17
See discussions in greater detail in Part IV of this paper. 18
Id.
Session 2: Constitution, Judiciary and Public Powers Structure
180 International Association of Procedural Law Seoul Conference 2014
I. Development in China’s Evidence Legislation Movement
To date, China’s officially promulgated evidence-related rules exist
respectively in its statutes of civil procedure, criminal procedure, and
administrative procedure, as well as in the judicial interpretations of these
procedural statutes by the Supreme People’s Court.19
Before 2000, very few
evidence rules were contained in statutes: only eight in the 1996 Criminal
Procedure Law20
, six in the 1989 Administrative Procedure Law21
, and twelve in
the 1991 Civil Procedure Law22
. These rules were mostly simple expression of
general principles23
; and almost half of them were either identical or substantially
similar24
.
Before the Movement, the concept of “evidence law (证据法学)” was
rarely mentioned or studied in China’s legal academies.25
Although the subject of
“evidence (证据学)” did exist, scholars usually associated it with the science of
procurement and authentication of evidence, but not with legal rules governing
the introduction and evaluation of evidence in court.26
However, in recent years, the enthusiasm of Chinese legal scholars and
practitioners to push for evidence legislation has been unparalleled.27
Since 2000,
academic publications about evidence have flourished; law journals emphasizing
19
Wang Yunying (王云英), Woguo Zhengju Lifa Moshi Tanlun (我国证据立法方式探论) [A Discussion
Regarding the Legislative Model for Our Evidence Law], FUJIAN XINGZHENG XUEYUAN XUEBAO (福建行
政学院学报) [JOURNAL OF FUJIAN ADMINISTRATION INSTITUTE], no. 4, 2009 at 83, 83 (China).
20 Xingshi Susong Fa (刑事诉讼法) [Criminal Procedure Law] (promulgated by the Nat’l People’s Cong.,
Mar. 17, 1996, effective Jan. 1, 1997), art. 42-49, available at http://www.npc.gov.cn/wxzl/gongbao/2000-
12/05/content_5004654.htm (last visited Jan. 7, 2013) (China) [hereinafter 1996 Criminal Procedure Law]
(This statute was later amended in 2012). 21
Xingzheng Susong Fa (行政诉讼法) [Administrative Procedure Law] (promulgated by the Nat’l
People’s Cong., Apr. 4, 1989, effective Oct. 1, 1990), art.31-36, available at
http://www.npc.gov.cn/wxzl/gongbao/1989-04/04/content_1481162.htm (last visited Jan. 7, 2013) (China)
[hereinafter 1989 Administrative Procedure]. 22
Minshi Susong Fa (民事诉讼法) [Civil Procedure Law] (promulgated by the Nat’l People’s Cong., Apr.
9, 1991, effective Apr. 9, 1991), art. 63-74, available at
http://www.lawyee.org/Act/Act_Display.asp?RID=27866 (last visited Jan. 7, 2013) (China) [hereinafter
1991 Civil Procedure] (This statute was later amended in 2007 and in 2012). 23
Wang Yunying, supra note 19, at 83. 24
See 1996 Criminal Procedure, supra note 20; 1989 Administrative Procedure, supra note 21; 1991
Civil Procedure, supra note 22; see also Zhang Baosheng, supra note 4 (stating that the redundancy rate
was about 44.8%). 25
Chen Ruihua (陈瑞华), Cong “Zhengju Xue” Zouxiang “Zhengju Fa Xue” (从“证据学”走向“证据法
学”) [From “Evidence” to “Evidence Law”], FA SHANG YANJIU (法商研究) [STUDIES IN LAW AND
BUSINESS], no. 3, 2006, available at http://article.chinalawinfo.com/Article_Detail.asp?ArticleID=47183
(China). 26
Id. 27
Wang Jinxi, supra note 8, at 150.
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 181
evidence have appeared; academic institutes specializing in evidence have
emerged in top law schools; and in 2006, China University of Political Science
and Law established the nation’s first doctoral degree program in evidence law.28
The Movement has brought about significant changes to existing
procedural law in China, and China is moving closer to the goal of enacting a
specialized evidence statute.
A. Legislation and Judicial Interpretations
Since 2002, the Supreme People’s Court has promulgated important
judicial interpretations specifically addressing evidence issues respectively in
criminal actions29
, civil actions30
, and administrative actions31
. In 2007, the
People’s Congress amended the Civil Procedure Law.32
In 2012, the People’s
Congress amended the Criminal Procedure Law33
and once again, amended the
Civil Procedure Law34
. All three amendments contained significant additions and
changes to articles concerning evidence.35
28
Zhang Baosheng, supra note 4. 29
Guanyu Banli Sixing Anjian Shencha Panduan Zhengju Ruogan Wenti de Guiding (关于办理死刑案件
审理判断证据若干问题的规定) [Provisions Concerning Hearing and Judging Evidence in Capital Cases]
(promulgated by Sup. People’s Ct., Sup. People’s Proc., Ministry of Public Security, Ministry of State
Security, Ministry of Justice, June 24, 2010, effective July 1, 2010), available at http://www.law-
lib.com/law/law_view.asp?id=316882 (last visited Aug. 7, 2014) (China); Guanyu Banli Xingshi Anjian
Paichu Feifa Zhengju Ruogan Wenti de Guiding (关于办理刑事案件排除非法证据若干问题的规定)
[Provisions Concerning the Exclusion of Unlawfully Obtained Evidence in Criminal Cases] (promulgated
by Sup. People’s Ct., Sup. People’s Proc., Ministry of Public Security, Ministry of State Security, Ministry
of Justice, June 24, 2010, effective July 1, 2010), available at http://www.law-
lib.com/law/law_view.asp?id=316883 (last visited Aug. 7, 2014) (China) [hereinafter collectively 2010
Provisions of Criminal Evidence]. 30
Zuigao Renmin Fayuan Guanyu Minshi Susong Zhengju de Ruogan Guiding (最高人民法院关于民事
诉讼证据的若干规定) [Provisions from the Supreme People’s Court Concerning Evidence in Civil
Litigation] (promulgated by Sup. People’s Ct., Dec. 21, 2001, effective Apr. 1, 2002), available at
http://www.court.gov.cn/bsfw/sszn/xgft/201004/t20100426_4533.htm (last visited Aug. 7, 2014) (China). 31
Zuigao Renmin Fayuan Guanyu Xingzheng Susong Zhengju de Ruogan Guiding (最高人民法院关于行
政诉讼证据若干问题的规定) [Provisions from the Supreme People’s Court Concerning Evidence in
Administrative Litigation] (promulgated by Sup. People’s Ct., July 24, 2002, effective Oct. 1, 2002),
available at http://www.law-lib.com/law/law_view.asp?id=40817 (last visited Aug. 7, 2014) (China). 32
Minshi Susong Fa (民事诉讼法) [Civil Procedure Law] (promulgated by the Standing Comm. Nat’l
People’s Cong., Oct. 28, 2007, effective Apr. 1, 2008), available at
http://www.china.com.cn/policy/txt/2007-10/29/content_9139262.htm (last visited Aug. 7, 2014) (China)
[hereinafter 2007 Civil Procedure]. 33
2012 Criminal Procedure, supra note 10. 34
2012 Civil Procedure, supra note 11. 35
See 2012 Criminal Procedure, supra note 10; 2012 Civil Procedure, supra note 11; 2007 Civil
Procedure, supra note 32.
Session 2: Constitution, Judiciary and Public Powers Structure
182 International Association of Procedural Law Seoul Conference 2014
The 2012 Criminal Procedure Law, for the first time, included language
requiring human rights protection, granting right to counsel, and addressing right
against self-incrimination.36
It also improved rules concerning witness testimony
in court; added exclusionary rules for the exclusion of illegally obtained evidence
and rules concerning witness protection and compensation; and adopted the
“beyond reasonable doubt” standard.37
The 2012 Civil Procedure Law improved
rules concerning witness testimony in court and authentication of evidence; and
added a rule regarding witness compensation.38
Notwithstanding the continuous legislative and judicial efforts on
evidence law, China is still far from having a comprehensive, modern system of
evidence rules. Zhang Baosheng, the leading evidence law scholar in China
stated in a report for the 2012 Evidence Provisions project:
[T]hree fundamental problems remain in existing evidence rules.
First of all, evidence rules in procedural laws and judicial
interpretations in China have not been promulgated in a systematic
and logical way. Relevancy rule is incomplete and not being
referred to as “logical thread” for trial judges to consider when
determining admissibility of evidence. Second and a related
problem is a significant number of existing evidence laws either
overlapping or redundant. For example, according to the latest
statistics, a total of fifty-one evidence rules are included in the
procedural laws of China, nineteen of which are redundant. This
indicates a tremendous waste of legislative and judicial resources.
But more importantly, such redundancy in regulations caused
confusions among trial judges when adjudicating cases. Last but
not least, the current existing China’s evidence laws are short for
policy-based rules, lacking considerations on important social
values, such as fairness and efficiency.39
B. Experimental Drafting Projects
Although legislation has not yet separated evidence law from traditional
procedural statutes, Chinese scholars have created various drafts of specialized
evidence statutes, with a goal of establishing a comprehensive, modern system of
36
2012 Criminal Procedure, supra note 10, art. 2, 14, 39, 40. 37
2012 Criminal Procedure, supra note 10, art. 46-63. 38
2012 Civil Procedure, supra note 11, art. 63-81. 39
Zhang Baosheng (张保生), Zhengju Zhidu shi Gongzheng Sifa de Genben Baozheng (证据制度是公正
司法的根本保证) [Evidence Rules are the Foundation of Judicial Justice] (Aug. 30, 2013) (unpublished
conference material for the 2012 Provisions project) (on file with the CUPL Evidence Institute) (China).
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 183
evidence rules.40
Recently, two influential experimental projects received
substantial supports from the Supreme People’s Court, coming closer to the goal
of comprehensive evidence legislation in China: The 2008 Evidence
Provisions41
project and the ongoing 2012 Evidence Provisions42
project.
The 2008 Evidence Provisions project started in 2006, when the Research
Office of the Supreme People’s Court delegated the Institute of Evidence Law
and Forensic Science at China University of Political Science and Law
(hereinafter the “CUPL Evidence Institute”) to draft a set of judicial
interpretations.43
The intention was to first formulate a comprehensive set of
evidence rules in the form of judicial interpretations promulgated by the Supreme
People’s Court; and when the time is right, this document could later serve as a
blueprint for a formal evidence code.44
In April 2008, the Research Office of the
Supreme People’s Court delegated the CUPL Evidence Institute to pilot the 2008
Evidence Provisions in seven lower courts45
, and the drafting group further
perfected the draft in 2010 based on feedbacks from the pilot program.46
The 2008 Evidence Provisions are, to a significant extent, modeled on the
FRE.47
The Provisions consist of seven chapters and contain 172 provisions48
.
Part Two of Chapter One49
and all four parts of Chapter Three50
highly
40
E.g., Bi Yuqian (毕玉谦), Zhongguo Zhengju FaCao’an (Jianyi Gao) (中国证据法草案(建议稿)) [Draft
of China Evidence Law (Proposal)] (2003); Chen Guangzhong (陈光中), Zhonghua Renmin Gongheguo
Xingshi Zhengju Fa Zhuanjia Nizhi Gao (中华人民共和国刑事诉讼证据法专家拟制稿) [P.R. China
Criminal Procedural Evidence Law Expert Draft] (2004); Jiang Wei (江伟), Zhongguo Zhengju Fa
Cao’an (中国证据法草案) [Draft of China Evidence Law (Proposal)] (2004). 41
2008 Evidence Provisions, supra note 12. 42
2012 Evidence Provisions, supra note 13. 43
Zhang Jun (张军), Guojia Sheke Jijin Zhongda Xingmu (Di San Pi) Toubiao Shu (国家社科基金重大
项目(第三批)投标书) [National Social Science Foundation Key Projects (the Third Batch) Bidding
Application] 26 (Sept. 15, 2011) (unpublished bidding application for the 2012 Provisions project) (on
file with the CUPL Evidence Institute) (China) [hereinafter 2012 Evidence Provisions Bidding
Application]. 44
Id. at 37-38. 45
Including four appellate courts and three trial courts: Kunming Intermediate People’s Court, Shenzhen
Intermediate People’s Court, Dongying Intermediate Court, Yanbian Intermediate Court, Haidian People’s
Court, Dongcheng People’s Court, and Shunde People’s Court. Id. at 26. 46
Letter from the Supreme People’s Court to the CUPL Evidence Institute (Mar. 16, 2012) (on file with
CUPL Evidence Institute). 47
See Email from Zhang Baosheng, Dean of the CUPL Evidence Institute and leading expert of the 2008
Evidence Provisions project, to Zhuhao Wang (Nov. 15, 2012, 12:18 AM CST) (on file with Zhuhao
Wang) (“[The 2008 Evidence Provisions] was mainly a product of sinicizing the achievement of the U.S.
evidence law”). 48
Chapter One “General Provisions”; Chapter Two “Categories and Forms of Evidence”; Chapter Three
“Exclusion of Evidence and Exceptions”; Chapter Four “Pretrial Exchange of Evidence”; Chapter Five
“Presentation of Evidence in Court”; Chapter Six “Collection and Protection of Evidence by Court”);
Chapter Seven “Proof.” 2008 Evidence Provisions, supra note 12. 49
Entitled “Relevance and Admissibility.” Id.
Session 2: Constitution, Judiciary and Public Powers Structure
184 International Association of Procedural Law Seoul Conference 2014
resembles the language in Rule 401-411 of the FRE51
. One can also find traces of
the FRE in other parts of the 2008 Evidence Provisions; for instance, Provision
68 of the 2008 Evidence Provisions describes an attorney-client privilege that
drew inspiration from the FRE52
. Other than heavily referencing the FRE, the
drafting notes in the 2008 Evidence Provisions also cite evidence rules in other
jurisdictions53
as well as existing sources of evidence rules in China54
.
The ongoing 2012 Evidence Provisions project is led by Shen Deyong, the
Vice Chief Justice of the Supreme People’s Court.55
Zhang Baosheng, the
leading expert involved in the drafting of the 2008 Evidence Provision is also an
important member of the 2012 Evidence Provision drafting group.56
The goal of
this project is similar to that of the 2008 Evidence Provisions.57
It consists of
nine chapters and includes 179 provisions.58
While the 2012 Evidence Provisions
maintain some of the concepts borrowed from the FRE in the 2008 Evidence
Provisions59
, it relies mainly on existing statutes and judicial interpretations in
China60
, its text reads much less like the FRE; and it has blended a significant
number of local factors or newly invented factors into concepts borrowed from
the FRE.61
II. Intrinsic and Extrinsic Impetuses Behind China’s Evidence
Legislation Movement
The Movement has two deeply rooted impetuses, one internal the other
external. The first, an internal motivation, derives from the Chinese peoples’ deep
50
Part One “Exclusion of Illegally Obtained Evidence”; Part Two “Exclusion of Hearsay”; Part Three
“Exclusion of Character and Propensity Evidence”; and Part Four “Evidence Not Admissible to Prove
Faults or Liabilities.” Id. 51
Compare 2008 Evidence Provisions, supra note 12, with Fed. R. Evid. 401-411. 52
Compare 2008 Evidence Provisions, supra note 12, provision 68, with Fed. R. Evid. 502. 53
For example, evidence rules in Italy, Germany, France, Russia, Japan, India, Australia, the Philippines,
and Canada. 2008 Evidence Provisions, supra note 12. 54
Including procedural statutes passed by the People’s Congress and judicial interpretations promulgated
by all levels of courts in China. 55
Letter from the Supreme People’s Court to the CUPL Evidence Institute, supra note 46; 2012 Evidence
Provisions Bidding Application, supra note 43, at 3. 56
2012 Evidence Provisions Bidding Application, supra note 43, at 3. 57
Id. at 46. 58
Chapter One “General Provisions”; Chapter Two “Exclusion of Evidence and Exceptions”; Chapter
Three “Pretrial Exchange of Evidence”; Chapter Four “Authentication”; Chapter Five “Collection and
Protection of Evidence by Court”; Chapter Six “Burden of Proof and Standard of Proof”; Chapter Seven
“Presentation of Evidence in Court”; Chapter Eight “Confrontation”; Chapter Nine “Evaluating the
Weight of Evidence.” 2012 Evidence Provisions, supra note 13. 59
Relevance, privilege, exclusion of illegally obtained evidence in criminal cases, and so forth. 2012
Evidence Provisions, supra note 13. 60
The 2012 Evidence Provisions’ drafting notes cite only to sources of law in China; Email from Zhang
Baosheng to Zhuhao Wang, supra note 47. 61
See discussions in greater detail in Part IV of this paper.
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 185
loathing and apprehension of wrongful verdicts. The second, an external impetus,
comes from impact of legal globalization in the form of a series of supranational
legal values that have a growing influence on reformers of evidence legislation in
China.
A. Inner Incentives – Pledge to Resist Miscarriages of Justice
In the past, due to heavy reliance on confessional evidence in criminal
prosecutions, torture and forced confessions were prevalent in criminal cases and
led to numerous wrongful convictions.62
This has gradually become the most
formidable challenge to the rule of law in China. Shen Deyong, the Vice Chief
Justice of the Supreme People’s Court, stated in a report for the 2012 Evidence
Provisions project that “in recent years, recurring wrongful convictions have
placed unprecedented challenges on China’s judicial authority. If we do not deal
with this problem with appropriate actions, daily adjudicating work will be put in
jeopardy.”63
Investigations indicate recent nationwide notorious wrongful
convictions. The “She Xianglin Case” in 1994, the “Du Peiwu Case” in 1998,
and the “Zhao Zuohai Case” in 2010, all showed adjudicating errors in the fact-
finding process64
, not in the decision-making process of any legal issue.65
Mainstream critics in China almost all pointed to an unsound system of evidence
rules as a key reason for such miscarriages of justice.66
Their consensus is that if
trial judges in China had a more advanced system of evidence rules to apply, then
62
Minzhu Fazhi: Gouzhu Yuanli Yuan’an de “Liangdao Fangxian” (民主法制:构筑远离冤案的“两道
防线”) [Democracy and Law: Building “Two Defensive Lines” to Avoid Wrongful Convictions], PEOPLE
(人民网) (Apr. 19, 2005, 19:05), http://npc.people.com.cn/GB/14840/3333260.html (China).
63 Shen Deyong (沈德咏), ZaiGuo jia Sheke Jiji Zhongda Xiangmu “Susong Zhengju Guiding Yanjiu”
Di’er Ci Gongzuo Huiyi Shang de Shumian Jianghua (在国家社科基金重大项目“诉讼证据规定研究”第
二次工作会议上的书面讲话) [Presentation at the 2nd
Working Conference for the National Social
Science Foundation Key Project “Studies on Litigation Evidence Rules”] (Aug. 30, 2013) (unpublished
conference material for the 2012 Provisions project) (on file with the CUPL Evidence Institute) (China). 64
See discussions of “Chinese judges’ Dual Role” in greater detail in Part III and Part IV of this paper. In
the Chinese legal system, no jury exists, and judges are both finders of fact and decision-maker of legal
issues. 65
Zhang Baosheng (张保生) & Chang Lin (常林), 2012 Nian Zhongguo Zhengju Fazhi Fazhan de Bufa
(2012 年中国证据法治发展的步伐) [The Progress of Evidence Law Development in China in the Year of
2012], ZHENGJU KEXUE (证据科学) [EVIDENCE SCIENCE], no. 2, 2014.
66 Zhang Baosheng (张保生), Guanyu Guojia Sheke Jijin Zhongda Xiangmu “Susong Zhengju Guiding
Yanjiu” Jiben Qingkuang he Shishi Jihua de Shuoming (关于国家社科基金重大项目“诉讼证据规定研究”
基本情况和实施计划的说明) [Overview of Basic Situations and Implementation Plan for the National
Social Science Foundation Key Project “Studies on Litigation Evidence Rules”] (Aug. 30, 2013)
(unpublished conference material for the 2012 Provisions project) (on file with the CUPL Evidence
Institute) (China).
Session 2: Constitution, Judiciary and Public Powers Structure
186 International Association of Procedural Law Seoul Conference 2014
fewer systematic errors of factual adjudication would occur.67
Thus, Chinese
legal authorities see reforming evidence legislation as an urgent call and expect a
comprehensive, modern system of evidence rules would be an effective tool to
minimize the total number of wrongful verdicts in the nation.
B. External Driving Force – Impact of Supranational Values as a Sign of
Legal Globalization
In the contemporary world, the reach of globalization has spanned
beyond the movement of goods, services, and capital.68
It now encompasses the
flow of ideas around the world, and increasingly influences the legal and social
institutions in individual nations.69
If globalization is considered as the main
paradigm of our time, then legal globalization would be like a chapter of it, even
though nowadays most of the conceptual and theoretical discussions of
globalization still focus on three aspects: economics, culture and politics.70
Legal
globalization is not a theory, just as globalization is not a theory.71
Instead, it is
an inexorable phenomenon, like a natural “evolutionary process”.72
One
expression of it is law operating at a supranational level, such as world trade and
international arbitration; and there are a number of transnational codes, such as
those for commercial, aviation and maritime law.73
Another expression of legal
globalization is the more fluid idea of laws among nations. Laws from one
country often have an inspiring influence beyond their national level, studied and
learned by other nations, in a process from which supranational legal values
gradually form.74
This diffusion of a rule or a system of law from one country to
another has been described as a “legal transplant”.75
A synonym for globalization is “modernization” which “involves
reflexivity, departing from tradition, changing the structure of social relations”76
;
and“[m]odernity is inherently globalizing.”77
Alan Watson’s analogy in Legal
Transplants: An Approach to Comparative Law is particularly helpful in
67
Id. 68
TERENCE C. HALLIDAY & BRUCE G. CARRUTHERS, BANKRUPT: GLOBAL LAWMAKING AND SYSTEMIC
FINANCIAL CRISIS, at xii (2009). 69
Id. 70
See Ralf Michaels: Globalization and Law: Law Beyond the State, in LAW AND SOCIAL THEORY
287-303 (Reza Banakar & Max Travers eds, Hart, 2nd ed, 2013). 71
Id. 72
Maria de Deus Manso, Portuguese Expansion and the Construction of Globalization, in FROM HERE
TO DIVERSITY: GLOBALIZATION AND INTERCULTURAL DIALOGUES, supra note 64, at 282. Also see Alistair
King: Legal globalization: investigating the effects of an “inexorable phenomenon”, the Barrister (Oct.
12, 2008). 73
Id. 74
Id. 75
ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW 21 (1974). 76
Ciocea, Dbrescu & Cismaru, supra note 65, at 176. 77
Id. (quoting ANTHONY GIDDENS, THE CONSEQUENCE OF MODERNITY 63 (1990)).
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 187
explaining why to interpret globalization as modernization would be proper in
legal transplants:
[L]aw like technology is very much the fruit of human experience.
Just as very few people have thought of the wheel yet once
invented its advantages can be seen and the wheel used by many, so
important legal rules are invented by a few people or nations, and
once invented their value can readily be appreciated, and the rules
themselves adopted for the needs of many nations.78
To use an analogy, globalization in legal transplants is not about all
nations producing the same cars, but is about nations taking the idea of cars and
producing different cars that represent their respective identities, and will lead to
an increase in the variety of cars available on a global scale. In this analogy, the
reason why the idea of cars spreads globally is that it serves a need that all
members of the global society share, and represents a value that all members of
the global society recognize; it is human progress. The process of taking the idea
of cars and developing it into different forms can thus be described as
modernization.
Similarly, in legal transplants, when a legal concept or rule, essentially an
idea, is universally recognized to uphold an important value in the human society,
it becomes part of the supranational legal values79
that represents human
progress. The recipient nation embraces the globally recognized values by
incorporating the idea into its system, but the expression of the idea varies in
each recipient nation due to modifications by local factors, including but not
limited to local context, culture, sentiment or institutional traditions.80
Just as
medical organ transplantation, surgery is highly likely to fail simply due to
rejection by the patient’s body, so legal transplant may fail if local factors reject
that change. The endpoint of a successful legal globalization will not be a
complete integration, but a diversified expression of supranational legal values
survived by a vital interaction with inevitable local factors in the recipient nation,
which constitutes modernity in the form of global legal culture.
78
WATSON, supra note 75, at 100. 79
The concept of “supranational legal values” has been mentioned, but its meaning varies in different
academic discussions. See e.g., Charles H. Koch, Jr., Envisioning A Global Legal Culture, 25MICH. J.
INT’L L. 1, 2 (2003); Russell Menyhart, Changing Identities and Changing Law: Possibilities for A
Global Legal Culture, 10 IND. J. GLOBAL LEGAL STUD.157, 159 (2003). For the purpose of this paper, it is
defined as a collection of legal elements that foster globally recognized values and represent progress of
human society. 80
Id.
Session 2: Constitution, Judiciary and Public Powers Structure
188 International Association of Procedural Law Seoul Conference 2014
III. Supranational Values in Evidence Law and Related Local
Factors Underlining China’s Evidence Legislation
Movement
Taking a closer look at the on-going evidence legislation Movement in
China, what really underlies the Movement is a vigorous interaction between
supranational values in evidence law that have been gradually accepted by
Chinese authorities in the legislative, judicial and academic fields, and the
inevitable local factors that have been relied upon by Chinese authorities to reject
or modify these values.
A. Featured Supranational Values in Evidence Law That Have Been Gradually
Accepted in China
Ideas flow with the movement of people. Nowadays, in addition to a
steady growth of high profile academic exchange programs between China and
Western countries81
, an ever-increasing number of young people in China have
been studying overseas on their own initiative. According to statistics provided
by China’s Ministry of Education, the total number of Chinese students studying
abroad has increased in double figures for five consecutive years, reaching four
hundred and fourteen thousand in 2013, of which 20 percent are law students.82
Top-tier law schools in United States, U.K. Germany and France are among the
most popular study-abroad destinations.83
After graduation, most of these young
people choose to return back to China instantly or after a few years legal practice
in the foreign country.84
These Western-educated young people, compared to the
elder generation of Chinese legal practitioners, have acquired knowledge of an
81
See Lin Jinhui (林金辉) & Yan Xiao (鄢晓), Zhongwai Hezuo Banxue Yanjiu de Tuozhan yu Shenhua
(中外合作办学研究的拓展与深化) [Expansion and Exploration on Studies of China-foreign Cooperation
in Education], JIAOYU YANJIU (教育研究) [EDUCATIONAL RESEARCH], no. 9, 2011, at 109.
82 See China Education Online (中国教育在线), 2014 Nian Chuguo Liuxue Qushi Baogao (2014 年出国
留学趋势报告) [Study Abroad Trend Report in 2014], available at
http://www.eol.cn/html/lx/2014baogao/content.html (last visited Aug. 21, 2014) (China). Also see China
Ministry of Education (教育部), 2011 Niandu Woguo Chuguo Liuxue Renyuan Qingkuang Tongji (2011
年度我国出国留学人员情况统计) [Statistics on Study Abroad Personnel in 2014], available at
http://www.moe.gov.cn/publicfiles/business/htmlfiles/moe/s5987/201202/130328.html (last visited Aug.
21, 2014) (China). 83
Id. 84
Id. Also see Hou Yaokun (侯耀坤) & Ma Long (马龙), Qicheng Liuxuesheng Huiguo Fazhan (七成留
学生回国发展) [70 Percent Study-Abroad Students Back to China for Career], RENMIN RIBAO (人民日报)
[PEOPLE DAILY], Dec. 6, 2013, Page 4.
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 189
entirely different set of legal values.85
Most significantly, they have brought back
to China modernized legal ideas and customs that represent human progress.86
In the mean-time, since the late 1990s, as a result of various meritorious
incentives, a significant number of world-class legal scholars from Western
countries have maintained visits to China,87
encouraging the development of the
rule of law in China.88
For instance, Ronald J. Allen89
, John Henry Wigmore
Professor of Law from Northwestern University School of Law, since 2004 has
worked closely with the Supreme People’s Court and CUPL Evidence Institute to
help formulate proposals for evidence legislation reform and has been
responsible for hosting and supervising the study and research of Chinese law
faculty and students at Northwestern University.90
His ideas and notions on
evidence law and procedural law have had a significant influence in China and in
2007, Allen was designated as a Yangtze River Scholar, the highest academic
honor that is given by the Chinese Government.91
Below is an excerpt from
Allen’s work - Reforming the Law of Evidence of Tanzania (Part Two):
Conceptual Overview and Practical Steps - regarding five featured
“supranational values in evidence law” that he argues must necessarily have a
profound impact upon China’s evidence law as well.
1. Pursuit of Factual Accuracy
85
See Chen Changgui (陈昌贵), Gao Lanying (高兰英) & Lou Xiaolin (楼晓玲), Weishenme Huiguo yu
Huiguohou Zenmeyang – Dui 471 Wei Huiguorenyuan de Diaochayanjiu (为什么回国与回国后怎么样—
—对 471 位回国人员的调查研究) [Why Back to China and How Do They After Return – Statistical Study
on 471 Study-Abroad Students Returning to China], ZHONGGUO GAODENG JIAOYU (中国高等教育)
[CHINA HIGHER EDUCATION], no. Z1, 2000, at 47. 86
See Wen Jinhai (温金海), Zhang Bin (张滨) & Xu Chunliang (许春良), Lan Wuzhou Yingcai Zhu
Zhuanxing Shengji – Zhejiang Haiwai Yincaizhilu (揽五洲英才 助转型升级——浙江海外引才之路)
[Embracing Overseas Talents in Support for Domestic Industrial Upgrading – Overseas Recruitment
Strategies in Zhejiang Province], ZHONGGUO RENCAI (中国人才) [CHINESE TALENTS], no. 11, 2011, at 14.
87 See Qiang Wei (强薇), Waiguo Zhuanjia de Zhongguo Qingyuan – Ji Guojia Waiguo Zhuanjiaju
Chengli 60 Zhounian (外国专家的中国情缘——记国家外国专家局成立 60 周年) [60 Years: Foreign
Experts in China], GUOJI RENCAI JIAOLIU (国际人才交流) [INTERNATIONAL TALENT], no. 5, 2014, at 33,
32-35 (China). 88
See Luo Xu (罗旭) & Sun Jing (孙婧), Waiguo Zhuanjia de “Zhongguomeng” (外国专家的“中国梦”)
[Foreign Experts’ ‘Chinese Dream’], GUANGMING RIBAO (光明日报) [GUANGMING DAILY], July 3,
2013, Page 15. 89
Professor Allen was recently also retained by the Tanzanian Government to assist in the reform of its
evidence law. His research result on related topics has already been published in Boston University
International Law Journals. See infra note 93. 90
See Ronald J. Allen’s Wikipedia Page, available at http://en.wikipedia.org/wiki/Ronald_J._Allen (last
time visited Aug. 22, 2014). 91
Id.
Session 2: Constitution, Judiciary and Public Powers Structure
190 International Association of Procedural Law Seoul Conference 2014
Accurate fact-finding is as fundamental to the construction of a just
society as is the articulation of rights and obligations.92
Indeed, accuracy in fact-
finding may be more fundamental than rights and obligations, for without
accurate fact-finding, rights and obligations are meaningless.93
Every contested
claim of a right or an obligation is entirely dependent upon the finding of facts.94
In order to assert and defend a right in court, one must first establish the facts that
demonstrate that a right has been violated. Thus, no legal system can afford to
ignore factual accuracy. One might reasonably suppose that natural reasoning
processes based on innate cognitive capacities work well, and thus typically
should be deferred to in the pursuit of factual accuracy.95
However, there may be
some recurring situations that lead to error when natural reasoning is applied; for
example, the possibility that natural reasoning about certain forms of evidence
can generate error explains the frequently found authorization to exclude
evidence when it may be misleading or unfairly prejudicial.96
It also underlies
other rules, such as limitations on character and propensity evidence97
, and the
requirement that witnesses testify from first-hand knowledge98
.
Factual accuracy is the most significant aspiration of a rational legal
system, but it is by no means the only one. Accuracy has a cost, and the cost can
sometimes exceed its value.99
A legal system overly preoccupied with factual
accuracy may undermine the very social conditions that the legal system is trying
to foster.100
2. The Economic and Social Values of Incentives
92
Ronald J. Allen, the Framework for the Reform of Evidence, Evidence Science, Vol.21 no.5, 2013, at
632 – 633. 93
See Ronald J. Allen, Timothy Fry, Jessica Notebaert & Jeff VanDam, Reforming the Law of Evidence
of Tanzania (Part Two): Conceptual Overview and Practical Steps, Boston University International Law
Journal, Vol. 32, no.1, 2014, at 4. 94
Ronald J. Allen, supra note 92. 95
Ronald J. Allen, Timothy Fry, Jessica Notebaert & Jeff VanDam, supra note 93, at 11. 96
E.g., U.S. FED. R. EVID. 403 (“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice [or] misleading the jury. . . .”); HODGE M.
MALEK, JONATHAN AUBURN & RODERICK BAGSHAW, PHIPSON ON EVIDENCE § 20-63, 540
(16th ed. 2005) (“The [English] common law discretion to exclude evidence more prejudicial than
probative remains. . . .”). 97
E.g., U.S. FED. R. EVID. 404 (“Evidence of a person’s character . . . is not admissible to prove . . . the
person acted in accordance with the character.”); Criminal Justice Act, 2003, c. 44, §§ 99–112 (U.K.)
(excluding character evidence subject to exceptions). 98
E.g., U.S. FED. R. EVID. 602 (“A witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the matter.”); MALEK,
AUBURN & BAGSHAW, supra note 28, § 12-17, 324 (“The facts testified to by a witness must . . . be
those which have occurred within his own personal knowledge. . . .”). 99
Ronald J. Allen, Timothy Fry, Jessica Notebaert & Jeff VanDam, supra note 93, at 12. 100
Id.
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 191
Factual accuracy competes not just with cost; it must also be weighed
against other policies that a government may reasonably pursue.101
For example,
the law of privileges may foster and protect numerous relationships, including
spousal, legal, medical, spiritual, and governmental.102
Another example is that a
system can provide incentives to fix dangerous conditions in a timely fashion
after an accident by preventing the use of evidence related to those repairs.103
Although a reasonable person might infer such repair shows that the property
owner acknowledged a dangerous condition, admission of the repair evidence
creates a disincentive to fix the dangerous condition, putting more people in
danger.104
Still other policies can be pursued. As one last practical example, in
the United States, a vast body of exclusionary rules is premised on the perceived
need to regulate police investigative activities.105
Rules of evidence can also
encourage or discourage certain kinds of lawsuits from being brought.106
3. General Considerations of Fairness
Principles of fairness and equity may also influence the law of evidence,
although the precise effect of this variable is often hard to sort out from more
overtly utilitarian motivations.107
Some think that the limit on unfairly
prejudicial evidence reflects not only the concern about accuracy but also the
concern about humiliation, as is also the case with rape relevancy rules.108
The
limits on prior behaviour and propensity evidence reflect in part a belief that an
individual should not be trapped in the past.109
101
Id. 102
E.g., U.S. FED. R. EVID. 501 advisory committee notes to 1974 enactment (outlining a proposed
system of privileges for the Federal Rules of Evidence, including protections for communications
between husbands and wives and communications with clergy, among several others); Rules of Procedure
and Evidence, Doc. ICC-ASP/1/3 (pt. 11-A), Rules 73, 75 (Sept. 9, 2002) (providing absolute privilege
for attorney-client and family communications, while privileging certain confidential communication with
professionals –such as doctors, counselors, and clergy – when it meets certain requirements). See also
JUDGE RICHARD MAY & MARIEKE WIERDA, INTERNATIONAL CRIMINAL EVIDENCE §§
6.74–6.76, 195 (2002) (privileging communication of U.N. personnel). 103
E.g., U.S. FED. R. EVID. 407 (disallowing the admission of evidence where “measures are taken that
would have made an earlier injury or harm less likely to occur” to prove negligence, culpable conduct,
design defects, or need for warning). 104
Ronald J. Allen, Timothy Fry, Jessica Notebaert & Jeff VanDam, supra note 93, at 13. 105
See, e.g., RONALD J. ALLEN, WILLIAM J. STUNTZ, JOSEPH L. HOFFMANN, DEBRA A. LIVINGSTON &
ANDREW D. LEOPOLD, COMPREHENSIVE CRIMINAL PROCEDURE (3RD
ED.) (2011). 106
See generally John Leubsdorf, Evidence Law as a System of Incentives, 95 IOWA L. REV. 1621
(2010). 107
Ronald J. Allen, Timothy Fry, Jessica Notebaert & Jeff VanDam, supra note 93, at 13. 108
See U.S. FED. R. EVID. 412–15. 109
See, e.g., United States v. Harding, 525 F.2d 84, 89 (7th Cir. 1975) (Stevens, J.) (“When the prior
conviction is used to impeach a defendant who elects to take the stand to testify in his own behalf, . . . [it]
implies that he is more likely to have committed the offense for which he is being tried than if he had
previously led a blameless life.”); I WIGMORE, EVIDENCE § 57 (3d ed. 1940) (“The deep tendency of
human nature to punish, not because our victim is guilty this time, but because he is a bad man and may
Session 2: Constitution, Judiciary and Public Powers Structure
192 International Association of Procedural Law Seoul Conference 2014
4. The Risk of Error
A mistake-free legal system is not possible. It is critically important to
recognise that two types of errors can be made: a wrongful verdict for a plaintiff
(or in a criminal case a conviction of an innocent person), which is named “Type
I” or false-positive error, and a wrongful verdict for an accused (or the acquittal
of a guilty person), which is named “Type II” or false-negative error.110
Resource
allocation and other decisions will affect the relationship between these two types
of errors.111
Normally, civil litigation is structured to attempt both to reduce the
total number of errors and to equalise the numbers of errors made on behalf of
plaintiffs and defendants.112
In civil cases, an error either way results in identical
misallocation of resources. The criminal justice process, by contrast, is designed
to reduce the possibility of wrongful conviction at the admitted expense of
making more mistakes of wrongful acquittals.113
Although the matter is
complicated, these perspectives explain in large measure the preponderance of
evidence standard in civil cases and the standard of proof beyond a reasonable
doubt in criminal cases.114
5. Rules vs. Discretion in the Admissibility of Evidence
Aspects of the law of evidence are rule-like in the sense of providing
necessary and sufficient conditions for deduction to occur about the matter that
the rule governs.115
However, important parts of the law of evidence simply
allocate responsibility and discretion precisely because the particular issue is too
complicated for rule-like treatment.116
Perhaps the single most important aspect
of the law of evidence—relevancy—has this attribute.117
It is impossible to state
a priori the necessary and sufficient conditions for the relevance of most
evidence presented at any particular trial. The conditions that make evidence
relevant or irrelevant cannot be known in advance; they depend on the unique
characteristics of each trial. For example, it is impossible to know in advance
how a witness will testify in a dispute that has not yet materialised. Thus, it is
impossible to create a set of evidentiary rules that regulate such matters in
as well be condemned now that he is caught, is a tendency which cannot fail to operate with any jury, in
or out of Court.”). 110
Ronald J. Allen, Timothy Fry, Jessica Notebaert & Jeff VanDam, supra note 93, at 14. 111
Id. 112
Id. 113
Id. 114
China shares these well-known standards. See e.g., 2012 Criminal Procedure Law, Article 53 (China). 115
Ronald J. Allen, Timothy Fry, Jessica Notebaert & Jeff VanDam, supra note 93, at 15. 116
Id. 117
E.g., U.S. FED. R. EVID. 401.
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 193
detail.118
Instead, the law of evidence must vest responsibility in someone—party
or judge—to determine what evidence to offer, and it does so under quite general
guidelines.119
B. Inevitable Local Contextualized Factors in China
As above mentioned, restructuring evidence legislation is not just a matter
of optimizing these supranational values. It also has a heavily local
contextualized component. Below is a brief summary120
of four featured local
factors that play a defining role in China’s evidence legislation reform.
1. China has long time been considered as an inquisitorial system
country, as opposed to an adversarial system.
First, all rules that structure the process of proof, are derived from and
implement a theory of dispute resolution.121
The dominant theory of dispute
resolution in most common law nations is the adversarial process122
, which is the
fundamental rationale behind many legislation designs, including robust pre-trial
discovery and sophisticated direct/cross examination led by the litigating
parties123
. For example, in the United States, it is generally believed that
adversarial investigation and presentation of evidence is more likely to yield a
verdict consistent with the truth than is a process more dominated by a
tribunal.124
The parties know their case better than anyone else and have the
proper incentives to invest the optimal resources in dispute resolution.125
A
government bureaucracy normally would be a poor substitute for the more
thorough knowledge and more finely calibrated incentives of the parties.126
However, adversarial process is not universal. China has for a long time accepted
an inquisitorial or non-adversarial process whereby the court is actively involved
in investigating the facts of the case.127
Existing procedural laws of China barely
118
Ronald J. Allen, Timothy Fry, Jessica Notebaert & Jeff VanDam, supra note 93, at 15. 119
Id. 120
This portion (Part III.B of this paper) is influenced by thinking in Ronald J. Allen, the Framework for
the Reform of Evidence, Evidence Science, Vol.21 no.5, 2013. 121
Ronald J. Allen, supra note 92, at 633. 122
Id. 123
See generally Kirsten DeBarba, Maintaining the adversarial system: The practice of allowing jurors
to question witnesses during trial, Vanderbilt Law Review, no. 5, 2002, at 1521–1548. 124
Ronald J. Allen, supra note 92, at 635. 125
Id. 126
Id. 127
See generally Chen Weidong (陈卫东) & Hao Yinzhong (郝银钟), Woguo Gongsu Fangshi de
Jiegouxing Quexian jiqi Jiaozheng (我国公诉方式的结构性缺陷及其矫正) [Structural Defects in
China’s Criminal Litigation and Retifications], FAXUE YANJIU (法学研究) [CHINESE JOURNAL OF LAW],
no. 4, 2000, at 101-102.
Session 2: Constitution, Judiciary and Public Powers Structure
194 International Association of Procedural Law Seoul Conference 2014
include rules of pre-trial discovery or direct/cross-examination by the litigating
parties.128
In China, it is generally believed that control by a disinterested
tribunal will lead to less abuse and manipulation of the evidence, and increase the
chance that verdicts consistent with the truth will emerge.129
2. The judiciary system is not fully independent from Government in
China.
The second and related point is that theories of dispute resolution, such as
the adversarial system or inquisitorial system, are themselves derived from
underlying conceptions of the appropriate role of government in the resolution of
disputes between private individuals in civil cases and in the prosecution of
criminal cases.130
In the Anglo American tradition, the role of the government in
private dispute resolution has been largely facilitative.131
The government
provides a fair and disinterested forum for the impartial resolution of private
disputes, and that is essentially all the government has an obligation, or even a
right, to do.132
In an extraordinary way, this conception of dispute resolution
affects criminal cases as well. The government prosecutes cases, but the
government is conceived of as analogous to a private party that stands on equal
footing with the other private party, the defendant, before the courts.133
The
courts are neutral, in other words, and are not part of the organs of government
structured to further the government’s specific policy interests in the particular
trial.134
Again, this is not a universal characteristic of legal systems. In China, the
Constitution does not have a “separation of powers” doctrine while the judicial
branch is still considered part of the organs of government.135
Judges in China
128
See Huang Songyou (黄松有), Zhengjukaishi Zhidu Bijiao Yanjiu – Jianping Woguo Minshi Shenpan
Shijianzhong de Zhengjukaishi (证据开示制度比较研究——兼评我国民事审判实践中的证据开示)
[Comparative Studies on Discovery Rules – While Commenting on Discovery in China’s Civil Procedural
Practice], ZHENGFA LUNTAN (政法论坛) [TRIBUNE OF POLITICAL SCIENCE AND LAW], no. 5, 2000, at 112. 129
Id. 130
Ronald J. Allen, supra note 92, at 633-634. 131
Id. at 634. 132
Id. 133
Id. 134
Id. 135
See Ma Huaide & Deng Yi, Sifa Duli yu Xianfa Xiugai (司法独立与宪法修改) [Judiciary
Independence and Amendment to the Constitution], FAXUE (法学) [LEGAL SCIENCE], no. 12, 2003, at 29-
31. Also see generally Yu Jingyao (俞静尧), Sifa Duli Jiegou Fenxi yu Sifa Gaige (司法独立结构分析与
司法改革) [Analysis on Structure of Judicial Independence and Judicial Reform], FAXUE YANJIU (法学研
究) [CHINESE JOURNAL OF LAW], no. 3, 2004.
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 195
never get tenured.136
They are appointed and removed by the People’s Congress
(another organ of the government in China), and within the same payroll system
as other government employees.137
Furthermore, the People’s Procuratorates
(counterpart of “prosecutors” in United States) has some special supervisory
power over the People’s Courts in China.138
When certain conditions (mainly
under Article 242 of the 2012 Criminal Procedural Law) are met, the
procuratorates may protest against the rulings of lower-level or same-level courts
and demand a retrial.139
3. The Constitution of China has no specified protections for the
personal liberties of criminal defendants, such as the right to confront
and to cross-examine accusatory witnesses.
The judiciary and the other branches of government are designed to
further the aspirations reflected in the founding documents and traditions of the
country, such as the constitution.140
For example, the Fifth Amendment to the
United States Constitution protects against self-incrimination and the Sixth
Amendment grants criminal defendants even more discrete personal liberties,
including but not limited to, the right to an impartial jury and the right to
confront and cross-examine adverse witnesses.141
However, in China, the
Constitution does not explicitly afford criminal defendants any of above-
136
See Zhuang Liqin (庄丽琴), Qiantan Woguo Faguan Baozhang Zhidu (浅谈我国法官保障制度)
[Discussion on Judge Welfare System in China], FAZHI YU SHEHUI (法制与社会) [LEGAL SYSTEM AND
SOCIETY], no. 30, 2010, at 45. Also see Lu Fangxia (卢芳霞), Faguan Gonguyuanhua de Fansi (法官公务
员化的反思) [Reflection on Chinese Judges’ Role as Government Employees], ZHONGGONG ZHEJIANG
SHENGWEI DANGXIAO XUEBAO (中共浙江省委党校学报) [Journal of the Communist Party School of the
Zhejiang Province], no. 6, 2005, at 117-118. 137
Id. 138
See Chen Si (陈斯), Jiancha Jianduquan zhi Jiantao – Yi Minshi Kangsuquan zhi Yunxing Weili (检察
监督权之检讨——以民事抗诉权之运行为例) [Reflection on Procuratorates’ Supervision Power Over
Courts – Operation of Protest Power Against Courts’ Rulings as an Example], FA XUE (法学) [LEGAL
SCIENCE], no. 10, 2007, at 130-133. Also see generally Chen Le (陈乐) & Zeng Jian (曾健), Woguo
Jianchaquan de Fansi yu Chonggou – Yi Kangsuquan we Hexin de Fenxi (我国检察权的反思与重构——
以抗诉权为核心的分析) [Reflection and Restructuring on China’s Procuratorates’ Power – Focusing on
Analysis of Protest Power Against Courts’ Rulings], FAZHI YU SHEHUI (法制与社会) [LEGAL SYSTEM AND
SOCIETY], no. 9, 2012. 139
Id. 140
Ronald J. Allen, supra note 92, at 634. 141
U.S. Const. Am. 5 – 6.
Session 2: Constitution, Judiciary and Public Powers Structure
196 International Association of Procedural Law Seoul Conference 2014
mentioned rights.142
Thus, unlike United States, evidence legislation in China
lacks direct support at the constitutional level.
4. In China, it is the judge rather than jury to determine facts of a case.
Another important local factor is the effect that juries or lay assessors have
on the structure of a legal system.143
In the United States, juries are at once
revered and simultaneously treated as alien intruders into the otherwise
professional world of the law and accordingly must be regulated and
controlled.144
Considerable part of the law of evidence and procedure in the
United States is driven by the judge-jury divide.145
However, in China, trial
judges determine both facts and legal issues, and there is no such design of “jury
trial”.146
When determining the facts of a case, Chinese judges prefer to and are
used to exercising FRE-Rule 403 type discretionary rules, rather than complying
with highly regulated rules like FRE hearsay rules or character evidence rules in
which judges’ discretions are much limited.147
In addition, it is generally
believed in China that compared to lay persons, judges as experienced
professionals who are less likely to be unfairly prejudiced against either party to
the case in making their adjudications.148
IV. Analysis of the 2008 Evidence Provisions and the 2012
Evidence Provisions
142
See generally Chen Ruihua (陈瑞华), Xingshi Beigaoren Quanli de Xianfahua Wenti (刑事被告人权
利的宪法化问题) [Issues in Constitutionalizing Criminal Defendants’ Rights], ZHENGFA LUNTAN (政法论
坛) [TRIBUNE OF POLITICAL SCIENCE AND LAW], no. 5, 2000, at 29-35. Also see generally Chen Ruihua
(陈瑞华), Xingshi Beigaoren Quanli de Xianfa Jiuji (刑事被告人权利的宪法救济) [Constitutional
Protections on Criminal Defendants’ Rights], FALV SHIYONG (法律适用) [LAW APPLICATION], no. 9, 2004. 143
Ronald J. Allen, supra note 92, at 635. 144
Id. 145
Id. 146
See Huang Songyou (黄松有), Shishi Rendingquan: Moshi de Xuanze yu Jian’gou (事实认定权:模
式的选择与建构) [Fact-finding Power: Mode Alternatives and Structuring], FAXUE YANJIU (法学研究)
[CHINESE JOURNAL OF LAW], no. 4, 2003, at 50-54. 147
See generally Zhao Peixian (赵培显), Shishi Rendingzhong de Faguan Ziyoucailiangquan jiqi
Chengxu Kongzhi (事实认定中的法官自由裁量权及其程序控制) [Judges’ Discretion in Fact-findings
and Corresponding Procedural Controls], GUOJIA JIANCHAGUAN XUEYUAN XUEBAO (国家检察官学院学
报) [JOURNAL OF NATIONAL PROSECUTORS COLLEGE], no. 5, 2013. 148
Huang Songyou, supra note 146.
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 197
The 2008 Evidence Provisions and the 2012 Evidence Provisions are the
latest, but still interim, achievements of the Movement. Although they
contemplate ultimate conversion to a formal statute, both are experimental drafts
of judicial interpretations, rather than proposed statutes. This would allow more
flexibility in adjustment and practical experiment at this stage, and will speed up
the promulgation of a comprehensive set of evidence rules.149
That said, to
attempt an entire statute in the form of judicial interpretations is unprecedented in
China.
In both drafts, one can easily identify traces of elements regularly seen in
the common law system, from terminology, methodology, to legal principles, but
with variations on some level. Yet both documents maintain a significant number
of traditions in Chinese culture and law, and both demonstrate creativity in
certain aspects. The 2008 Evidence Provisions lean to embracing more
supranational values in evidence law while the 2012 Evidence Provisions puts
more weights on local factors. The following aspects are addressed in both
Provisions and had been new to the legal system in China before the Movement.
A. Establishing an Evidence Code
Both Provisions adopt the approach of codifying evidence rules. The idea
of fully systemizing evidence law and providing more technical details, inspired
by the FRE and other evidence statutes of common law countries, would directly
address fundamental gaps in China’s existing evidence legislation. A fully
rational and logical system of evidence law would restrain the use of arbitrary
and capricious discretion by judges, and thereby increase consistency and reduce
uncertainty.150
The strongest argument against eventually enacting an evidence code is
that China’s court system is separated into specialized divisions (e.g., civil and
commercial courts, criminal courts, administrative courts, and so forth), a feature
that U.S. courts do not share.151
This arguably creates an institutional inertia that
could constitute an obstacle to codification. However, given the striking overlap
of evidence rules scattered throughout the various procedural statutes, as
discussed in Part I, perhaps the contention that countries in the civil law system
cannot enact an evidence code152
merely demonstrates academic inertia or
prejudice that fails to see the necessity to modernize the system.
149
2012 Evidence Provisions Bidding Application, supra note 43, at 38-41. 150
See EDGARDO BUSCAGLIA &WILLAM RATLIFF, LAW AND ECONOMICS IN DEVELOPING COUNTRIES 6
(2000). 151
Zhang Baosheng, supra note 4. 152
Zhang Baosheng (张保生), Man Yunlong (满运龙) & Long Weiqiu (龙卫球), Meiguo Zhengju Fa de
Jiazhi Jichu (美国证据法的价值基础) (The Value Basis of American Evidence Law), ZHONGGUO
ZHENGFA DAXUE XUEBAO) (中国政法大学学报) [J. CHINA U. POLITICAL SCI. L.], no. 6, 2009, at 51, 52 (A
Session 2: Constitution, Judiciary and Public Powers Structure
198 International Association of Procedural Law Seoul Conference 2014
B. Exclusionary Rules
The exclusionary rules against the admissibility of illegally obtained
evidence serve the supranational value of protecting individual rights. The 2008
Evidence Provisions have four provisions pertaining to the exclusion of illegally
obtained evidence in criminal cases153
, and the 2012 Evidence Provisions have
eleven such provisions154
. Both Provisions prohibit forced self-incrimination and
prohibit confessional evidence obtained as a result of such force.155
Even though China’s Constitution does not protect a criminal defendant’s
personal liberties (as discussed in Part III), Chinese scholars and practitioners in
the past decade have devoted increasing attention to China’s international
obligation to protect the human rights of the accused, as expressed in
international treaties.156
Gradually, a consensus has been formed in the general
public of China that criminal defendants have human rights, and exclusionary
rules are necessary to ensure these rights. This example shows that if local
culture is at odds with globally recognized values, the global legal culture has a
chance of eventually changing.
In addition, an interesting variation of the exclusionary rules in the 2008
Evidence Provisions and the 2012 Evidence Provisions is that both Provisions
exclude unlawfully or tortuously obtained evidence in civil and administrative
cases.157
It seems that China is extending the individual rights protection to
evidence collection in civil and administrative cases. This may be in an effort to
further emphasize individual rights in China’s legal reforms and China may have
a chance to join few other countries with similar rules to lead a new trend of
supranational value in evidence law.
German scholar opposed China’s plan to enact a specialized evidence law, reasoning that it is against the
tradition in civil law countries). 153
2008 Evidence Provisions, supra note 12, provisions 22, 23, 24, 27. 154
2012 Evidence Provisions, supra note 13, provisions 21-31. 155
2008 Evidence Provisions, supra note 12, provision 128; 2012 Evidence Provisions, supra note 13,
provision 72. 156
E.g., ZuoWeimin (左卫民) & Liu Tao (刘涛), Zhengju Zhidu Guojixing Zhunzeyu Zhongguo Xingshi
Zhengju Zhidu Gaige (证据制度国际性准则与中国刑事证据制度改革) [International Principles of
Evidence and China’s Reform of Evidence Rules in Criminal Cases], ARTICLE.CHINALAWINFO.COM (北大
法律网法学在线), http://article.chinalawinfo.com/Article_Detail.asp?ArticleId=21725 (last visited Aug.
17, 2014) (China); Chen Zhanjun (陈占军), Cong Renquan Gongyue Kan Xingshi Susongfazhi Quexian
(从人权公约看刑事诉讼法之缺陷) [International Human Rights Treaties and Defects of Criminal
Procedural Law], CRIMINALLAWYERCN.COM (中国刑事律师网) (Nov. 18, 2005),
http://www.southlawyer.net/homepage/21/20051118110548570720.html (China). 157
2008 Evidence Provisions, supra note 12, provision 25; 2012 Evidence Provisions, supra note 13,
provision 32.
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 199
C. Privileges
Privilege rules protect individual rights by ensuring free communications
within a relationship of trust and confidence. Both 2008 Evidence Provisions and
2012 Evidence Provisions include privilege rules, but the scope is quite different
in each document.
Although both Provisions provide for attorney-client privilege, the 2008
Evidence Provisions protects “confidential communications” between an attorney
and his client,158
while the 2012 Evidence Provisions protects “related
circumstances and information that the attorney learned during the
representation.”159
The language in the 2012 Evidence Provision is closer to the
confidentiality rule in the United States ABA Model Rules of Professional
Conduct,160
while the 2008 Evidence Provision adopts the language of the
FRE161
; it seems that the scope of protection is broader in the 2012 Evidence
Provision. Neither Provisions provide rules regarding waiver of privileges.
Although the attorney-client privilege is not yet included in a formal procedural
statute, the Standing Committee of the People’s Congress added a confidentiality
rule in China’s Lawyer Law in 2007162
.
Both Provisions provide an immediate relative privilege, which is a
variation of the marital communication privilege in the United States and other
common law countries. However, the 2008 Evidence Provisions and the 2012
Evidence Provisions both extend such a privilege to parents and children.163
The
protected scope of this immediate relative privilege is not limited to
communications between the witness and the defendant,164
and so it is broader
than that of the U.S. marital privilege. This is probably because the traditional
culture in China features an extremely close and trusting relationship between
parents and children, often even to a greater extent than a spousal relationship.
Such a variation is in line with the value that privilege rules protect and here
again China may have a chance to join few other countries with similar rules to
lead a new trend of supranational value in evidence law.
D. Relevance and Admissibility
158
2008 Evidence Provisions, supra note 12, provision 68. 159
2012 Evidence Provisions, supra note 13, provision 97. 160
Compare 2012 Evidence Provisions, supra note 13, provision 97 with MODEL RULES OF PROF’L
CONDUCT R. 1.6 (2012). 161
Compare 2008 Evidence Provisions, supra note 12, provision 68 with FED. R. EVID. 502(g)(1). 162
Lushi Fa (律师法) [Lawyer Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Oct. 28,
2007, effective June 1, 2008), art. 38, available at http://www.law-lib.com/law/law_view.asp?id=223162
(last visited Aug. 7, 2014) (the law governing attorneys’ professional responsibilities in China). 163
2008 Evidence Provisions, supra note 12, provision 70; 2012 Evidence Provisions, supra note 13,
provision 98. 164
Id.
Session 2: Constitution, Judiciary and Public Powers Structure
200 International Association of Procedural Law Seoul Conference 2014
The concepts of relevance and admissibility reflect a logical165
, coherent,
and standardized approach to the organization of an evidence rule system. This is
universally recognized.166
To use such an approach serves values of efficiency
and fairness by ensuring consistency and reducing randomness in the evaluation
of evidence.167
Both the 2008 Evidence Provisions and the 2012 Evidence Provisions
adopted these supranational concepts in various provisions. The 2008 Evidence
Provisions’ relevance and admissibility rules resemble the FRE counterparts.168
The 2012 Evidence Provisions combine the relevance and admissibility
requirements into one rule and remove the balancing test in FRE, which weighs
probative value against prejudice and waste of time. The balancing test is
replaced with language requiring a holistic analysis of all evidence.169
This might
be an attempt to streamline the rule system.
Both Provisions also adopt rules limiting the admissibility of certain
types of evidence for a specific policy-based purpose, for example, the equivalent
of FRE rules regarding subsequent remedial measures and compromise offers.170
One unique variation is that both Provisions limit the use of certain evidence to
prove the legitimacy of a state action in an administrative suit.171
This creative
element shows the drafters’ interest in balancing the powers between state and
individual in an administrative action..
E. Weight of Evidence v. Hearsay
The 2008 Evidence Provision adopts the concept of hearsay and use
language substantially similar to FRE rules in its hearsay section.172
However, in
the 2012 Evidence Provision, the drafters choose to leave out the hearsay rules.173
There are a number of reasons for this:
1. Practical Considerations
165
Zhang Baosheng, supra note 4 (referring to relevance as the “logical thread” of evidence law). 166
See E.g., UNCITRAL Model Law on International Commercial Arbitration, article 19(2) (2006),
available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html. 167
See He Jiahong (何家弘), Lun Falv Yuyan de Tongyi he Guifan (论法律语言的统一和规范) [The
Unification and Accuracy of Legal Language], ZHONGGUO RENMIN DAXUE XUEBAO (中国人民大学学报)
[J. RENMIN U. CHINA], no. 1, 2009, available at
http://article.chinalawinfo.com/Article_Detail.asp?ArticleID=52821 (last visited Aug. 7, 2014) (China)
(stressing the importance of consistency and accuracy in legal terminology). 168
Compare 2008 Evidence Provisions, supra note 12, provisions 11-13 with FED. R. EVID 401-403. 169
Compare 2012 Evidence Provisions, supra note 13, provision 7 with FED. R. EVID. 502(g)(1). 170
Compare 2008 Evidence Provisions, supra note 12, provisions 35-37 with FED. R. EVID 407-409;
Compare 2012 Evidence Provisions, supra note 13, provisions 34-35 with FED. R. EVID 401-403. 171
2008 Evidence Provisions, supra note 12, provisions 26; 2012 Evidence Provisions, supra note 13,
provisions 33. 172
Compare 2008 Evidence Provisions, supra note 12, provisions 28-32 with FED. R. EVID 801-807. 173
See generally 2012 Evidence Provisions, supra note 13.
Zhuhao WANG (China)
International Association of Procedural Law Seoul Conference 2014 201
Due to the Chinese cultural tradition of avoiding public confrontation,
witnesses are usually extremely reluctant to testify in court.174
According to
several surveys conducted from 2005 to 2007, the average rate of appearance
when witnesses were asked to testify in court was consistently less than 20%.175
Although, in order to encourage witness appearances in court, the 2012
Evidence Provisions provide financial compensation and mechanisms to protect
the privacy, identity, and physical safety of witnesses, the low appearance rate
remains a problem and thereby makes it impracticable for the hearsay rule to
fully apply.
2. The Judges’ Dual Role
Under American evidence rules, judges may consider hearsay for certain
issues such as admissibility. In the Chinese legal system, as discussed in Part III,
no jury exists, and judges are both finders of fact and decision-makers on legal
issues; that means they have to consider more hearsay evidence than US judges.
3. A Weight of Evidence System
Taking into account the Chinese judges’ long-time preference to exercise
FRE-Rule 403 type discretionary rules, the alternative mechanism proposed in
the 2012 Evidence Provisions is a weight of evidence approach that ranks the
weight of different types of evidence in reaching a final decision on the facts.176
Instead of completely excluding certain evidence where veracity cannot be
ascertained, this system requires corroborating evidence for the suspicious
evidence before it can be taken into account. In this way, judges will have more
opportunity to consider evidence in a holistic manner, thereby fostering fairness
and efficiency.
V. Conclusion
By considering the latest developments in China’s evidence legislation,
especially by comparing proposals made in the 2008 Evidence Provisions with
those in the 2012 Evidence Provisions, one can easily identify a vigorous
174
Paul J. Shmidt, A Review of China’s New Civil Evidence Law, 12 PAC. RIM L. & POL’Y J. 291, 303
(2003). 175
Zhang Zhong (张中), Guanyu<Renmin Fayuan Tongyi Zhengju Guiding>Diaoyan Baogao (关于《人
民法院统一证据规定》调研报告) [Investigation and Research Report Regarding the People’s Court
Uniform Provisions of Evidence], ZHENGJU LILUN YU KEXUE (证据理论与科学) [EVIDENCE LAW
THEORIES AND FORENSIC SCIENCE] 99, 112 (2007). 176
E.g., 2012 Evidence Provisions, supra note 13, provisions 169, 170.
Session 2: Constitution, Judiciary and Public Powers Structure
202 International Association of Procedural Law Seoul Conference 2014
interaction in evidence law between supranational values and local factors. What
is less obvious is that such interaction may have one of three possible results.
First, supranational legal values may synchronize with national legal practice (for
example, codification of evidence law and recognition of relevancy as the main
line of logic in organizing the evidence law system), and re-create the local
culture by incorporating universally upheld values in a way unique to the people.
This is a form of legal globalization, or to be precise – legal transplant. However,
such a synchronization process is not a matter of mere passive acceptance.
China’s experience shows that peculiarities in local traditions will always foster
variations in line with the universally recognized values, thereby extending the
nature and expression of those values. Secondly, supranational legal values (for
example, those embodied in hearsay rules), may not be incorporated at all
because of deeply rooted local factors resisting the change – just as where
medical organ transplantation surgery fails due to rejection by the recipient’s
body. Thirdly, in exceptional cases, innovative national judicial practices (such as
extending the marital communication privilege to parents and children, and
extending the exclusionary rule to civil and administrative cases) may serve to
develop and extend supranational legal values.
Nonetheless, overall, the experimental drafting processes of the 2008
Evidence Provisions and the 2012 Evidence Provisions demonstrate a trail of
modernization. China is reshaping its identity in global legal society as a
participant in the development of the evidential process, a process that ultimately
strives to achieve fairness, efficiency, and increased protection for individual
rights.
China’s ongoing efforts in reforming its evidence law is just a milestone
of its ongoing effort to modernize its legal system; moving forward, it is logical
to expect that the Chinese legal system will further embrace more supranational
legal values in not only the design of procedural rules, but also the way lawyers
practice law and even the concept of judicial independence in the Constitution. It
will likely shape China’s new identity in the global legal society, and add to the
diversity of modern legal system.
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