China

Enhanced Judicial Education | Background

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In the U.S., rules of evidence are intended to ensure that the parties to a case and the decision maker (judge or jury) will only rely on relevant, reliable evidence. Furthermore, the rules ensure that proposed evidence is presented to the court in a way that gives the court a fair opportunity to evaluate its reliability and credibility. Predicable rules of evidence contribute to transparency, build trust in the judicial system, address abuses of power that lead to illegal evidence, and enhance fairness and perceived fairness in litigation. Discovery embodies a philosophy that the parties should be entitled to know what the other side's evidence will be prior to trial; that trial by surprise is disfavored; and that a party should not be able to withhold evidence favorable to the other side if the other side is entitled to that evidence. The discovery process in the U.S. (if properly managed by the court) results in a more informed and fact-based system of dispute resolution, fewer errors or miscarriages of justice, a more efficient use of judicial resources, and facilitation of alternative dispute resolution.

Chinese Judges that have worked with the MGS, MJC and ABA in the past have expressed great interest in understanding how rules governing evidentiary procedures and processes in the U.S. are applied, and in developing analogous frameworks applicable in the Chinese context. The timing is ripe to address deficiencies in the areas of judicial education on applying rules of evidence and to strengthen court management of pre-trial discovery. The timing is also fortuitous to support the courts as they seek to develop alternative mechanisms that would contribute to promoting fair, just and transparent outcomes to disputes. The U.S. has led the way in developing court-centered mediation capacity and experience. Mediation of administrative litigation is technically illegal under China's Administrative Procedure Law. Nevertheless, informal alternative dispute resolution of administrative disputes is increasing as an alternative to the petition system or formal judicial resolution; as using the courts to resolve such disputes is often stymied by political interference, lack of judicial capacity and authority to enforce judgments, and individual preferences to avoid using the courts in the first instance, for various historical, cultural and sociological reasons.

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