China’s Uniform Provisions of Evidence of the People's Court and the Convergence of Civil Law and Common Law

Abstract

With recent judicial reforms in both civil and common law jurisdictions, the distinctions between the two systems are lessening. As these reforms continue, the civil law/common law categories are loosing meaning and, except as an historical construct, may become irrelevant. One hallmark of the civil law system has been the judge who frames issues and calls and questions witnesses. Other civil law characteristics include a reliance upon written evidence, minimal use of precedent, and an indistinct trial process. Conversely, common law systems grant attorneys great control over the trial process, have complex codes controlling the introduction of evidence, rely heavily upon precedent, and have a distinct trial process. Now in many civil law countries, attorneys are taking a lead role in calling and questioning witnesses. At the same time, common law judges are becoming more active in framing issues and controlling the litigation process. China, a traditionally civil law country, is in the process of developing and adopting rules of evidence that are partially inspired by the evidence rules in place in the United States, a common law country. In developing and implementing the Uniform Provisions of Evidence, China’s reform effort mirrors the merger in civil law and common law countries that is taking place in so many other countries. This article focuses on the historical distinctions between civil and common law countries, the merger that is taking place between the two systems, and China’s Draft Uniform Provisions of Evidence as an example of this harmonization of the civil and common law systems.