Introduction
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.[1] 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.[2]
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.[3] And in 2019, the Supreme People’s Court rolled out a new cause of action specifically for sexual harassment.[4] 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.[5] “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.[6] 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.”[7] 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.”[8] 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.
No comments:
Post a Comment