Session 2: Constitution, Judiciary and Public Powers Structure · PDF fileSession 2:...

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.



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.



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.



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.



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.



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.



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.



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)


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: [email protected]. 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).



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)


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.



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)


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.



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)


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.



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)


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).



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)


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.



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)


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.



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


Id.

Zhuhao WANG (China)


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


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


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



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


Id. 112

Id. 113

Id. 114

China shares these well-known standards. See e.g., 2012 Criminal Procedure Law, Article 53 (China). 115


Id. 117

E.g., U.S. FED. R. EVID. 401.

Zhuhao WANG (China)


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


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


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.



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)


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


U.S. Const. Am. 5 – 6.



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


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)


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



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


provision 32.

Zhuhao WANG (China)


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


provision 98. 164

Id.



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;


2008 Evidence Provisions, supra note 12, provisions 26; 2012 Evidence Provisions, supra note 13,

provisions 33. 172


See generally 2012 Evidence Provisions, supra note 13.

Zhuhao WANG (China)


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.



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.

Session 2: Constitution, Judiciary and Public Powers Structure · PDF fileSession 2:...

Documents

Transcript of Session 2: Constitution, Judiciary and Public Powers Structure · PDF fileSession 2:...