CHINA’S EVIDENTIARY AND PROCEDURAL REFORMS, THE FEDERAL RULES OF EVIDENCE, AND THE HARMONIZATION OF CIVIL AND COMMON LAW

John J. Capowski ©2011

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

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

While China’s previous reform efforts have been disappointing, the article ends with the expectation that the seriousness of this reform effort combined with China’s re-emergence as a global power will create a much improved judicial system.