Evidentialism and the Denial of Domestic Violence by Chinese Courts
(證據主義與法院對家庭暴力的裁判)
Abstract:
How do courts dismiss domestic violence when the laws on the books have increasingly sided with women victims? How does judges’ adherence to a prohibitively high standard of proof present a challenge for abused women who seek help? Based on a close reading of over 400 judgments involving domestic violence claims, Professor Kwai Hang Ng will explain how a new juridical regime known as evidentialism has become the mechanism through which domestic violence is denied or trivialized in China today. Further, he will analyze what the turn to evidence means in the daily decision-making of the courts.
(當法律對婦女權利的保護越來越完善時，法院如何處理與家庭暴力相關的訴求？ 法官對於證據標準的要求，會對尋求救濟的婦女帶來怎樣的影響？ 通過對400多份涉及家庭暴力司法判決的深入分析，吳貴亨教授將解釋「證據主義」如何成為中國法院處理涉及家庭暴力案件的機制，並在此基礎上討論「證據主義」對司法決策的影響。)
Summary:
The speaker is one of frontline scholars who study how Chinese courts’ decision-making, particularly how courts addressing cases involving domestic violence. He has discussed that courts adhere a high standard of evidential requirement that lead to the dismissal of most divorce cases involving domestic violence, due to judges’ consideration of “maintain family harmony and social stability”. He has also raised a question that legal advice is largely needed as it is difficult for plaintiff to present evidences. He has further responded to how courts issue protection order under Anti-Domestic Violence Law, and the reason why getting divorce in courtrooms is hard, and how training to judges can influence the courts’ decision of such cases.
Speaker: Kwai Hang NG, Professor of Sociology, Department of Sociology, University of California, San Diego. His monograph Embedded Courts: Judicial Decision-Making in China (co-authored with HE Xin, published by Cambridge University Press in 2017) has received the 2018 Distinguished Book Award of Asian Law and Society Association.
(講者：吳貴亨 ， 加州大學聖地牙哥分校社會學系教授， 與賀欣教授（香港大學法律學院）合著出版的 《嵌入式法院：司法決定在中國》 （Embedded Courts: Judicial Decision-Making in China） 曾榮獲“亞洲法律與社會協會最佳著作獎”)
日期：2022年6月10日
視頻回放 (YouTube)
00:27 Divorce in China
05:56 Domestic Violence
16:40 "Evidentialism"
17:58 Example 1
20:29 Example 2
22:43 Example 3
28:03 Evidential fact v. Constitutional fact
31:35 Standards v. Rules
PowerPoint (簡報 / 幻燈片) 下載：
Research Paper (研究論文) 下載：
Ng, Hwai Hang, "Evidentialism and the Denial of Domestic Violence by Chinese Courts," The China Journal, Vol. 87.