China's Evidentiary and Procedural Reforms, the Federal Rules of Evidence, and the Harmonization of Civil and Common Law

By Capowski, John J. | Texas International Law Journal, Summer 2012 | Go to article overview

China's Evidentiary and Procedural Reforms, the Federal Rules of Evidence, and the Harmonization of Civil and Common Law


Capowski, John J., Texas International Law Journal


Abstract

China's Supreme People's Court has stated its commitment to reform its judicial system, and the linchpin of the reform efforts is the Uniform Provisions of Evidence, which are in the process of becoming China's first procedural and evidentiary code. Incongruously, China, a civil law country, has modeled the Uniform Provisions upon the United States' Federal Rules of Evidence (FRE) and incorporated into the Uniform Provisions principles of the United States' criminal and civil procedure. The parallels between the Uniform Provisions and the FRE are striking, and the adoption of FRE language is extraordinary.

After setting out the traits that distinguish civil law countries, including China, from common law countries, I discuss how the adoption of a common law code, although incongruous, serves China's reform efforts and may ameliorate many of the problems with China's judicial system. I also discuss how the Uniform Provisions, while maintaining the FRE language, will be read differently in the new institutional setting. In making this argument, I discuss the "free evaluation principle" of the civil law system, the Chinese concept of "objective justice," and the influences of Confucianism and the harmonious society on the application of the Uniform Provisions. The Article also describes in detail the Uniform Provisions and compares them with their antecedents in the FRE.

While China's previous reform efforts have been disappointing, the Article ends with the expectation that the seriousness of the reform efforts, combined with China's reemergence as a global power, will create a much improved judicial system.

(ProQuest: ... denotes non-USASCII text omitted.)

SUMMARY

INTRODUCTION ............................................................................................................... 457

I. THE CONTRASTING TRAITS OF CIVIL AND COMMON LAW SYSTEMS ........... 459

A. Rules on the Admission of Evidence ......................................................... 460

B. Adversarial vs. Inquisitorial ....................................................................... 462

C. The Roles of Courts and Legislatures ........................................................ 464

D. The Role of Precedent ................................................................................. 465

II. CHINA'S CHARACTER AS A CIVIL LAW SYSTEM ............................................. 466

A. The Roles of Courts and the Legislature ................................................... 467

B. An Inquisitorial Process Lacking a Unitary Trial .................................... 468

1. The Civil Litigation Process ................................................................ 469

2. The Prosecution Process ...................................................................... 471

3. The Lack of Stare Decisis .................................................................... 473

III. THE UNIFORM PROVISIONS OF EVIDENCE OF THE PEOPLE'S COURT AND THEIR SIMILARITIES WITH THE FEDERAL RULES OF EVIDENCE AND PRINCIPLES OF U.S. CRIMINAL AND CIVIL PROCEDURE ................................ 473

IV. CRITICISMS OF CHINA'S JUDICIAL PROCESS AND THE POSITIVE INCONGRUITY OF THE UNIFORM PROVISIONS ................................................. 489

A. Limiting the Role of Unreliable and Prejudicial Evidence ...................... 494

B. Providing Transparency ............................................................................. 495

C. Increasing Consistency in Decision Making ............................................. 495

D. Increasing Individual Rights ....................................................................... 496

V. THE UNIFORM PROVISIONS WERE DRAFTED AND WILL BE INTERPRETED WITH CHINESE PRINCIPLES AND SENSIBILITIES ..................... 496

A.

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China's Evidentiary and Procedural Reforms, the Federal Rules of Evidence, and the Harmonization of Civil and Common Law
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