Friday, May 14, 2021
Former DC Bar Presidents and Bar Members Renew Call Disciplinary Action against Former AG William Barr in Light of Court Ruling
Thursday, May 13, 2021
Monday, May 10, 2021
On March 8, a Shanghai court awarded $15,000 to a plaintiff in a sexual harassment lawsuit against her colleague in a rare legal win for the #MeToo movement in China (Sixth Tone, March 10; Washington Post, March 20). Although China has enacted a string of legal provisions targeting sexual harassment over the past sixteen years, with the new Civil Code’s Article 1010 being the most recent example, survivor suits against harassers are rare. Meanwhile, successful labor contract suits against companies who fire employees for sexual harassment are numerous, as are defamation cases against survivors who make public allegations.
Why the imbalance? Besides the social stigma and political sensitivity surrounding sexual harassment in China, legal rules play a significant role in hindering #MeToo (as they do elsewhere) (SupChina, January 28). To be sure, some reforms have improved access to courts. Since 2015, the case registration system has made it more difficult for courts to arbitrarily reject case filings. And in 2019, the Supreme People’s Court rolled out a new cause of action specifically for sexual harassment. But once survivors get to court, the rules of evidence still work against them. When alleged harassers bring litigation for defamation or illegal termination, the rules give them an advantage.
The Burden of Proof Is Heavy for Plaintiff Survivors
Generally, a plaintiff in civil litigation in China must prove the facts of the case to a “high degree of likelihood” to win. “High degree of likelihood” does not have a universally agreed-upon definition, but some Chinese legal scholars have described it as the court having a certainty of “85 percent” or more. Last year in the Procuratorate Daily, a local legal official described it as when “the probative force of one party’s evidence far exceeds that of the other party.” China’s standard of proof is arguably similar to that of some other civil law countries, like Germany, whose Federal Supreme Court stated that judges should reach a certainty “that silences doubt without completely excluding it.” In contrast, Anglo-American common law uses the “preponderance of the evidence” or “balance of probabilities” standard. The plaintiff just needs to prove the facts claimed are more likely than not to have occurred—even if more likely just by a hair.
Structural differences help explain the two systems’ respective standards. In the common law system, judges do not conduct investigations. Litigants are solely responsible for gathering evidence and constructing arguments to convince the jury or judge of their case. By contrast, civil law judges, including Chinese judges, have the power to gather evidence, call and question witnesses and then make determinations of fact. Since it is often easier to convince oneself of something than to convince someone else, it makes sense that judges in this dual role should be required to attain a high degree of certainty.
Although Chinese judges can conduct investigations, they infrequently do so. Chinese judges have crushing caseloads and neither the time nor resources for evidence collection. Since the 1990s, trials in China have also been moving toward an adversarial model where the litigants take a more proactive role. Although the work now falls on the litigants, they do not have the same evidence collection tools as the courts, and plaintiffs still need to meet the “high degree of likelihood” standard.
Standards of Proof in Civil Litigation- Guide to China's Civil Evidence Rules (7) - China Justice Observer
The standard of proof refers to the degree of evidence necessary to establish proof in a court proceeding. According to Articles 108 and 109 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China (最高人民法院关于适用〈中华人民共和国民事诉讼法〉的解释), the standards of proof in China’s civil litigation can be categorized into two groups: most to-be-proved facts are subject to the standard of “preponderance of the evidence”(高度可能性), and some special to-be-proved facts subject to the standard of “beyond a reasonable doubt” (排除合理怀疑).
I. The “preponderance of the evidence” standard
As the name implies, “preponderance” refers to the fact that the existing evidence has shown that the fact to be proven is more probable than not. “Preponderance” does not require the evidence to reach the extent of beyond a reasonable doubt, and some judges describe it as reaching the possibility of 75%.
Given the different circumstances in each case, as well as the different personal experience and knowledge of each judge, the Chinese law does not specifically provide for “preponderance”, but gives the judge the discretion to make judgment therefor. In practice, some judges think that “preponderance” can be further divided into three levels: highest possibility, higher possibility, and high possibility.  It can be seen that “preponderance” is a rather flexible standard, and judges need to determine whether the evidence meets the standard of proof based on the law and their personal experience. 
II. The “beyond a reasonable doubt” standard
Some special facts to be proved need to meet the standard of “beyond a reasonable doubt” only applicable in criminal cases.  “Beyond a reasonable doubt”, obviously more demanding than “preponderance”, mainly applies to the following to-be-proved facts:
BERLIN (AP) — Germany’s powerful Catholic progressives are openly defying a recent Holy See pronouncement that priests cannot bless same-sex unions by offering such blessings at services in about 100 different churches all over the country this week.
The blessings at open worship services are the latest pushback from German Catholics against a document released in March by the Vatican’s orthodoxy office, the Congregation for the Doctrine of the Faith, which said Catholic clergy cannot bless same-sex unions because God “cannot bless sin.”
The document pleased conservatives and disheartened advocates for LGBTQ Catholics around the globe. But the response has been particularly acute in Germany, where the German church has been at the forefront of opening discussion on hot-button issues such as the church’s teaching on homosexuality as part of a formal process of debate and reform.
The dozens of church services celebrating blessings of gay unions are the latest escalation in tensions between conservatives and progressives that have already sparked alarm, primarily from the right, that part of the German church might be heading into schism.
Germany is no stranger to schism: 500 years ago, Martin Luther launched the Reformation here.
Pope Francis, who has championed a more decentralized church structure, has already reminded the German hierarchy that it must remain in communion with Rome during its reform process, known as a “synodal path.”
In Berlin, the Rev. Jan Korditschke, a Jesuit who works for the diocese preparing adults for baptism and helps out at the St. Canisius congregation, will lead blessings for queer couples at a worship service May 16.
“I am convinced that homosexual orientation is not bad, nor is homosexual love a sin,” Korditschke told The Associated Press in an interview Friday. “I want to celebrate the love of homosexuals with these blessings because the love of homosexuals is something good.”
The 44-year-old said it is important that homosexuals can show themselves within the Catholic Church and gain more visibility long-term. He said he was not afraid of possible repercussions by high-ranking church officials or the Vatican.
“I stand behind what I am doing, though it is painful for me that I cannot do it in tune with the church leadership,” Korditschke said, adding that “the homophobia of my church makes me angry and I am ashamed of it.”
The head of the German Bishops Conference last month criticized the grassroots initiative for gay blessings which is called “Liebe Gewinnt” or “Love Wins.”
Limburg Bishop Georg Baetzing said the blessings “are not suitable as an instrument of church political manifestations or political actions.”
However, Germany’s powerful lay organization, the Central Committee of German Catholics, or ZdK, which has been advocating for gay blessings since 2015, positioned itself once more in favor of them. It called the contentious document from Rome “not very helpful” and explicitly expressed its support for ”Love Wins.”
“These are celebrations of worship in which people express to God what moves them,” Birgit Mock, the ZdK’s spokeswoman for family affairs, told the AP.
“The fact that they ask for God’s blessing and thank him for all the good in their lives — also for relationships lived with mutual respect and full of love — that is deeply based on the Gospel,” Mock said, adding that she herself was planning to attend a church service with gay blessings in the western city of Hamm on Monday in which she would pray for ”the success of the synodal path in which we, as a church, recognize sexuality as a positive strength.”
The ZdK has been taking part in the “synodal path” meetings for more than a year with the German Bishops Conference. They are due to conclude in the fall. The meetings include talks about allowing priests to get married, the ordination of women and a different understanding of sexuality, among other reforms. The process was launched as part of the response to revelations of clergy sexual abuse.
“We’re struggling in Germany with a lot of seriousness and intensive theological discourses for the right path,” Mock added. “Things cannot continue the way they did — this is what the crimes and cover-ups of sexual abuse showed us.”
“We need systemic changes, also regarding a reassessment of the ecclesiastical morality of sexuality,” Mock said.