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This article compares and contrasts the pre-trial discovery mechanisms used in China and the United States, as well as the advantages and disadvantages of each. Although both use similar discovery tools, like requests to inspect evidence and expert examination of the parties, their discovery systems vary greatly. Ultimately, China prefers that judges largely conduct discovery, that the parties mutually select expert witnesses, and that the primary objective is to determine the truth, even at the expense of finality. Conversely, the United States prefers a much more adversarial system, in which the parties collect the evidence, submit motions to the court, and select partisan expert witnesses. Unlike China, the United States also gives substantial weight to finality, prohibiting retrials at the appellate level, but permitting appellate review to ensure substantial justice is achieved. While the Chinese discovery system is efficient and fair, the burden on the Chinese judge to collect evidence is too great and threatens neutrality. To combat this, China should improve the parties’ ability to discover evidence. Conversely, although the U.S. system produces zealous advocacy and extensive information, the parties are plagued by lengthy and expensive discovery procedures. Consequently, the United States needs to minimize excessive discovery with judicially determined limits.


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8 Sep 2022
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  • Subject
    • Civil Law

    • Civil Procedure

    • Comparative and Foreign Law

    • Evidence

  • Journal title
    • Boston College International and Comparative Law Review

  • Volume
    • 37

  • Issue
    • 2

  • Pagination
    • 281

  • Date submitted

    8 September 2022