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Frontiers of Law in China

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, Volume 13 Issue 1 Previous Issue   
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Orginal Article
EDITOR’S NOTE
WANG Zhuhao
Front. Law China. 2018, 13 (1): 1-5.  https://doi.org/10.3868/s050-007-018-0001-6
Abstract   PDF (205KB)

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RETHINKING CHINESE EVIDENCE THEORIES AND RECONSTRUCTING SYSTEM OF EVIDENCE: “A THREAD FOR THE PEARLS OF CHINESE EVIDENCE”
ZHANG Baosheng, YANG Ping
Front. Law China. 2018, 13 (1): 6-20.  https://doi.org/10.3868/s050-007-018-0002-3
Abstract   PDF (362KB)

This article analyses Chinese traditional evidence theories that have evolved over a long period of time, to explore which theory, between objectivity and relevancy, best represents the basic attribute and logical thread of evidence. These theories are considered in the context of issues arising in evidential adjudication, including: the “Mirror of Evidence,” truth, the probability of proof standard, the choice between a notion of pursuing 100-percent certainty in adjudication and that wrongful acquittals are better than wrongful convictions, and the statutory proof doctrine comparedwith the system of free proof. Finally, the article presents the framework of and methods for drafting provisions of procedural evidence of the People’s Court.

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THE FORM OF REFORM: REVISITING THE CHOICE AMONG A CREED, A CODE, AND A CATALOGUE
Edward J. Imwinkelried
Front. Law China. 2018, 13 (1): 21-33.  https://doi.org/10.3868/s050-007-018-0003-0
Abstract   PDF (207KB)

In the past, international Evidence law reformers have focused primarily on substantive evidentiary doctrines. However, for reforms to be effective, the courts and legislatures must state the revised doctrines in a form that promotes the overall objectives of the legal system. The basic choice facing reformers is among a creed identifying broad goals, a code stating flexible principles, and a catalogue prescribing detailed rules. In the past, especially in the United States, there was a consensus among Evidence scholars that the code format is preferable. However, if a key objective of a national legal system is to encourage pretrial disposition of cases, the courts and legislatures should give serious thought to utilizing a catalogue format. That format is especially attractive in the doctrinal areas such as privilege in which evidentiary rules are intended to affect primary behavior outside the courtroom.

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RULEMAKING POSSIBILITIES: EFFORTS OF THE UNITED STATES JUDICIAL CONFERENCE ADVISORY COMMITTEE ON EVIDENCE RULES TO ADDRESS THE CHALLENGES TO FORENSIC EXPERT TESTIMONY
Daniel J. Capra
Front. Law China. 2018, 13 (1): 34-42.  https://doi.org/10.3868/s050-007-018-0004-7
Abstract   PDF (233KB)

This piece is an echo to one of the main subjects of the Sixth International Conference on Evidence Law and Forensic Science which is to determine what evidentiary reforms are necessary for regulating forensic expert testimony, and how those reforms might be implemented. In United States, the predominant way of evidentiary reform is through rulemaking. As the Reporter of Judicial Conference Advisory Committee on the Federal Rules of Evidence since 1996, the author, with a pragmatic spirit throughout the article, examines such an effort at the federal level of U.S. in six parts (levels), starting from the most general, abstract level till finishing with the most detailed and substantive points. Part I begins with a brief introduction of the hierarchies of evidentiary rulemaking authorities at the federal level of the United States, various interested groups and their interesting interactions in the rulemaking process. The author then shifts to the general topic of writing rules with a specific focus on the level of detail that is to be provided in doing so; Part II further narrows down the scrutiny into writing a rule on forensic expert testimony with an emphasis on the necessity of making such a rule change to the current general standards of FRE; Part III directly addresses the challenges of drafting a rule on forensic evidence in FRE, including a comparation of various alternative drafting models; Part IV and Part V respectively discusses the Reporter’s comments and the Justice Department’s concerns over the drafted rules; and Part VI briefly discusses the feasibility and effectiveness of a Best Practices Manual on forensic evidence in lieu of rulemaking.

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THE FORENSIC CHALLENGE
Paul Roberts
Front. Law China. 2018, 13 (1): 43-66.  https://doi.org/10.3868/s050-007-018-0005-4
Abstract   PDF (342KB)

This article investigates what might be characterised as “the forensic challenge” for criminal adjudication and clarifies its nature and scope. The “challenge” identified is complex, dynamic and multifaceted, encompassing a variety of issues and debates concerning the ways in which forensic science evidence is validated, generated, presented, tested, evaluated and utilised in criminal proceedings. Common law evidentiary principles governing the admissibility of scientific evidence and expert witness testimony are reviewed and the underlying assumptions and potential weaknesses of adversarial trial procedure are critically considered. The discussion is pitched at the generic level of recurring intellectual puzzles, institutional design, regulatory frameworks, procedural structures and processes, macro-policy choices and methodological prescriptions, with the intention of making it relevant to an international audience. Aspects of the procedural law and adjudicative practice of England and Wales, and the regulatory context of UK forensic science, are offered as concrete illustrations with the potential for illuminating comparative extrapolation to other legal systems. In conclusion, the article draws out specific implications for Chinese scholarship, law reform and policymaking in relation to scientific and other expert evidence, and advances a bold suggestion for entertaining an unconventionally expansive conception of “forensic science” and, correspondingly, of the challenges it presents.

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THE ADMISSIBILITY OF PRE-TRIAL TESTIMONIAL TRANSCRIPTS: A DISCUSSION OF PRACTICE IN CHINA AND IN THE INTERNATIONAL CRIMINAL TRIBUNALS
WANG Zhuhao, HUANG Yanni
Front. Law China. 2018, 13 (1): 67-85.  https://doi.org/10.3868/s050-007-018-0006-1
Abstract   PDF (275KB)

In Chinese criminal procedure, the issues of illegally obtained evidence and witnesses not appearing in courtroom are under fire, which is partly rooted in the fact that the Chinese courts do not limit the admissibility of pre-trial testimonial transcripts in judicial practice, zealously pursue the “truth of fact” while disregard defendant’s right to confront. Focusing on the admissibility of pre-trial testimonial transcripts, the article will first analyze the current legislations and judicial practice in China, then from a comparative perspective introduce the corresponding written testimony rules of the International Criminal Tribunal (Court) which distinguishes the admissibility of different categories of written testimony, with an aim of both protecting the criminal defendant’s right of confrontation and pursuing truth in fact-finding. The practice in International Criminal Tribunal (Court) provides a good starting point for China to rethink its own practice and learn from.

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CHINESE NATURAL LAW TRADITION AND ITS MODERN APPLICATION: A RESPONSE TO HON. ROLLIN A. VAN BROEKHOVEN
ZHANG Shoudong
Front. Law China. 2018, 13 (1): 86-114.  https://doi.org/10.3868/s050-007-018-0007-8
Abstract   PDF (350KB)

This article is a response to Morality And Law In A Global Society: A Place For Natural Law Theory? The first part is a summary and comments on Honorable Rollin A. Van Broekhoven’s survey of the natural law tradition and its relevance to the analysis of the controversial U.S. Supreme Court decisions. Then it addresses Mencius and the Chinese natural law tradition based on the researches of Hu Shih and John C. H. Wu, and the affinity of the natural theories of Mencius and Thomas Aquinas are explored. The third part analyses the sensational case of Yu Huan (2017) from the point of view of natural law and takes it as an example of the relevance of natural law to the theory and practice of contemporary Chinese law.

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COMPARATIVE STUDY OF INTERNATIONAL CARRIAGE OF GOODS BY RAILWAY BETWEEN CIM AND SMGS
ZHU Yan, Vadim Filimonov
Front. Law China. 2018, 13 (1): 115-136.  https://doi.org/10.3868/s050-007-018-0008-5
Abstract   PDF (423KB)

China and some of its trade partners in Western Europe apply different legal regimes for international carriage of goods by railway — respectively Agreement on International Railway Freight Transportation (SMGS) and Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM). For transportation of goods by railway between China and Western Europe both the CIM and the SMGS are often applicable. China’s initiative “the Belt and Road” promotes development of railway transport in Eurasia and creates new incentives for comparative study between those two international legal systems. This article provides a brief historical outline of comparative studies between the CIM and SMGS. This article also purports to show that some similarities and differences between the two regimes might be better understood from the perspective of comparative legal history. Taking into account inter alia the common origin of the current versions of the CIM and SMGS in the 4th revision of the CIM of 1933, differences and similarities between two legal regimes have been analysed with regard to the following topics: the scope of application of the CIM and SMGS; the nature of the carrier’s liability under the CIM and SMGS; exclusivity of the CIM, exclusivity of the contract of carriage under the SMGS; period of responsibility; persons for whom the carrier is liable.

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TRAGIC CONSCIOUSNESS, NATURAL LANGUAGE AND MODERN SPIRIT OF THE RULE OF LAW
GAO Yangguang
Front. Law China. 2018, 13 (1): 137-152.  https://doi.org/10.3868/s050-007-018-0009-2
Abstract   PDF (226KB)

Tragic consciousness, which originated in childhood, is complex compassion based on strong self-consciousness. After being moralized, tragic consciousness presents the dichotomy of good and evil, which has not only profoundly affected the formation of natural language, but also cradled the theory of natural law and religious spirit. Modern jurisprudence attempts to get rid of the shackles of classics and Christian humanism, to shape the autonomous and self-consistent image of law with the de lege lata as center. However, it is difficult for modern jurisprudence to surpass the natural language which rooted in tragic consciousness, and impossible to neglect or deny the independent value of the human. The inherent conflict within the rule of law makes ironically a tragedy, especially in the context of contemporary China.

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