Replace People Assessor System with Jury System?
Term Paper Submitted
For the Course of British Culture
To Professor Xiao Huiyun
No. 0922
Name 詹嘉瑜
Outline
Topic: Replace People Assessor System with Jury System?
Thesis statement: Though the People Assessor System in China
demonstrates far more defects in comparison with the Jury System in
Britain, in my opinion, it is better to improve the present People
Assessor System in China instead of abandoning it and replacing it
with the Jury System in Britain.
Ⅰ Introduction: Two main types of jury systems in the world
Ⅱ Main Body:
1. Jury System in Britain
A. A Long history of development of jury system
B. the Form jury system takes: Petit jury – 12 laypeople
C. Qualifications for jurors
D. Scope of application
E. Function and role of juries, as distinct from that of judges
2. People Assessor System
A. A relative short history of development of jury system in China
50s – The golden stage
B. the Form jury system takes:
A mixed court – 1 judge & 2 laypeople
C. Qualifications for jurors
D. Scope of application
E. Function and role of juries
3. Different Ramifications of the Two Systems
A. National democracy
B. Judicial procedure
C. Judicial system’s capacity against outside pressure
4. Dilemma in Preserving People Assessor System or Not
A. Impossibility of transplanting British Jury System
B. Necessity of maintaining the participation of common people in
judicial activities
→ The only choice left: Improvement of the present People Assessor
System
Ⅲ Conclusion:
In view of its long history of development, its scientific form, specific
qualifications, clear defined scope and the independent role of its jurors,
jury system in Britain do have much more strength than its counterpart
– People Assessor System in China, and exert positive influence over
national democracy, judicial procedure and Judicial system’s capacity
against outside pressure. However, though People Assessor System has
failed to fulfill these functions, it is not necessary that we should
abolish it and replace it with Britain Jury System as regards China’s
conditions and the potential benefits from People Assessor System
after being improved.
Replace People Assessor System with Jury System?
Though the modern jury system has its origin in England, it can date back to the times of
ancient Greece and Rome. Now, as the most common way through which the public participate in
judicial activities in democratic countries, it has evolved into a symbol of judicial democracy and
civil rights. Many countries, both those under the Anglo-American law system like Britain and
Continental law system like China, have developed their own jury systems but with quite different
ramifications, in view of different histories of development, forms, qualifications for jurors,
scopes of application and roles of juries. The Chinese jury system, more precisely, the People
Assessor System, is quite different from the jury system in English-speaking countries such as
Britain. Now more and more people complain that people assessor system fails to fulfill its
functions and in some sense only exists in names. Some even suggest replacing it with British or
American Jury System. Though the People Assessor System in China demonstrates far more
defects in comparison with the Jury System in Britain, in my opinion, it is better to improve the
present People Assessor System in China instead of abandoning it and replacing it with the Jury
System in Britain.
Jury System in Britain
History of Development
Jury system is of long standing in Britain and has now evolved in to a highly sophisticated
system. Anyone familiar with English history could recall in the grant Charter of 1215, which was
prescribed that people has the right to be judged by his peers. Here “to be judge by ‘his peers’”
refer to a trial by the jury composed by neighbors of the parties of the case. Though today the
government has successfully played down the importance of juries in the judicial system, the jury
system is still quite popular in Britain and continues to demonstrate its strength.
The Form
Briefly speaking, there are two categories of jury system, the grand jury and petit jury. The
grand jury is responsible for crime investigation, or for review of detection by law enforcement
departments and evidence thus submitted in criminal cases, in order to make sure whether or not
an accusation should be brought in court. Petit jury is usually composed of twelve citizens from
the community. It should make out its finding on whether or not the criminal accusation against
the defendant is justifiable. Anywhere there is no crime found, the proceedings should be ended;
anywhere there is crime, the judge will apply the proper law and renders a judgment on this case.
Now the grand jury has become a thing of the past; only the petit jury remains active on the stage
of judicial activities in Britain.
Qualifications
Jury system in Britain holds specific qualifications for jurors. According to the Jury Law in
1974, citizens between the ages of 18 to 65, who have registered in either the council or the
regional elections as voters and who have been British citizens for more than 5 years since the age
of 13, are entitled to serve on juries. However, those who have convicted any forms of crime or
have any connection with the cases are excluded from the list of candidates. Besides, jurors should
be selected randomly from a representative cross section of the community; and no citizen should
be denied the right to serve on a jury on account of race, religion, sex, or national origin so long as
he or she fulfills the requirements stipulated in the law.
Scope of Application
As for the scope of application, now the jury system in Britain only applies in a small part of
the criminal cases and several kinds of civil actions. Only the High Court, Crown Courts and
Country Courts can have in juries in proceedings. But juries are not applicable to courts at local
level including Magistrates’ Courts and Tribunals, which only deals with minor criminal offences.
Function and Role of Juries
In British jury system, the function and role of juries is clearly defined, as distinct from the
function and role of judges in court. Generally, legal proceedings in Anglo-American law system
consist of two parts – make judgments on facts (giving verdict) and application of law
(sentencing). The jury is responsible for the first part – giving its verdict on criminal cases while
the judge apply the proper law and impose sentences accordingly.
People Assessor System
History of Development
Jury system in china also came from the west, but it was the continent of Europe, former
Soviet and Eastern Europe. And thus People Assessor System is quite different from jury system
in Britain. People assessor system has a very short history in China. It was established in 1951
with the issue of Provisional Structural Regulations of People’s Court of PRC., which was
provided that “in order to facilitate people’s participation of trial, people’s court should adopt
people assessor system according to the nature of concrete case.” In 1954 Structural Regulations
of People’s Court of PRC, issued another 3 articles that specifically provided the selection, rights,
duty and economic guarantee of people assessor. With the introduction of relevant legislation,
China witnessed the golden age of the people assessor system in 1950s. However, the coming of
Cultural Revolution held back the development of the people assessor system. Though after the
Cultural Revolution people assessor system again was provided in the Law on the Structure of
People’s Court, it still lays behind the times.
The Form
Different from the jury system in Britain, in China, assessor system embodies in adjudication
of case by a mixed court composed of a professional judge and two laymen. During the trial, the
laymen and judge are of the same right and power, and they could all make judgment on any facts
and application of law. So in this system, the distinction between the function and role of the judge
and jury has vanished.
Qualifications
Though there were some requirements of people assessors in the law, it is often the case that
the assessors were picked by the court randomly. However, since May 1st, 2005, with the
enforcement of New Regulation on Perfecting People Assessor System, citizens should satisfy a
series of qualifications so as to exercise the right of being a people assessor. Though most of the
qualifications are parallel with that in British Jury System, there are also some distinct
requirements. For example, the qualified candidate should be or more than 23 years old. Moreover,
the Regulation provided that the service favored candidates with or above community college
education.
Scope of Application
In China, the decision as to whether to form a mixed court composed of a professional judge
and two laymen or not falls upon the People’s Court without any limitation from the outside. This
means it is the court that decides the scope of application of people assessors instead of the law.
Besides, people assessor system is only applicable to the first trial of criminal cases.
Function and Role of Juries
As for the role played by people assessors in this system, in theory, the laymen and judge are
of the same right and power, making judgment on any facts as well as applying proper law. It
seems that the people assessors in this system enjoys larger rights that jurors in Britain. The truth
is quite the opposite. Without professional knowledge, assessors tend to rely on the expertise of
professional judge when they are making judgments together. As a result, judges gain the
dominance of the mixed court with assessors simply following judges’ opinions instead of actively
involving in the proceedings. This in turn produces a ridiculous situation in China’s judicial
system – the so-called People Assessor System only exists in names.
Different Ramifications of the Two Systems
There is an ideological commonness in admission of layman in judicial process, that is,
regarding jury system or assessor system as an important part of democratic system of a state.
However, due to different histories of development, forms, qualifications of jurors, scopes of
application and roles of juries, the two systems bring about very different impact, in terms of
national democracy, judicial procedure and judicial system’s capacity against outside pressure.
National Democracy
The facts that common citizens participate in trial and have power independent from
professional judges in finding of facts signified a segmentation of judicial power by public. At the
same time, through the selection of juries from local community, value criterion held by local
people would exert influence on the government and the will of judges. In addition, lawyers’
approach and method of analysis and language they used would have a slow and silent but
profound influence on common citizen through their usual participation of judicial process, which
is also an important channel for pervasion of the sprit of rule of law. Thus the British proudly
called the jury system as “A Fort for Freedom” and “A School for Democracy”, as often heard.
However, assessors are not actually in charge of the judgments of facts, though in theory they
are supposed to. Depend on the professional skills of judges, they are just followers in court. Thus,
the common citizens fail to exert their influence on judicial activities and the judicial power is
concentrated in the hands of judges which trigger corruption, inequality in judgments of criminal
cases and a series of other problems. Without participation, common public will never truly
understand the spirit of rule of law, although the Chinese government gives it high priority in its
agenda.
Judicial Procedure
From an internal perspective, we could also find indeed jury has greatly influenced judicial
procedure of Britain. Originally the jury is mainly composed by laypeople of law, and most of
them are also illiterate. Under these circumstances, the written form is not workable and most of
the procedure is oral. The sharp and face-to-face confrontation between the lawyers of the
opposite sides, the artful tactic and sequence in interrogation of witness, all of these are with the
same aim to lead the twelve laymen, instead of the professional judge, to understand and endorse
allegations and arguments of its own side. “Direct principle” also developed out of the oral
procedure. By this procedure, witness is generally required to appear in court for interrogation by
lawyers of both sides to make the jury more clear about facts of the case. I think most Chinese
people still remembered what they saw on TV the live trial on Chen Xi-Tong, a senior official of
China, several years ago. In it we saw all evidence submitted was written and both the lawyer for
defendant and the prosecutor had no opportunity to make a rigorous interrogation of witness in
court because no witness appeared in court. There is no doubt that such a trial is out of image in
Britain.
Judicial System’s Capacity against outside Pressure
Strength of the institution of jury also lied in the fact that it could function as a resistance to
outside pressure upon judicial system, but the proper function of this strength depends on jury
election. In British jury system, parties of action play important role in jury selection, and we
could even say that it is up to the parties themselves to decide on the composition of jury. There
was a legal adage in as early as Roman time, saying that “everyone must obey the decision made
by the judge he has selected.” So the parties of the case should have no contention on the decision
of the jury and they must carry out it strictly. In such a mechanism, result of the administration of
justice is in a sense the outcome of parties’ self-selection, for which they have no justification to
attack. Thus the judicial system will not receive much pressure because often the verdict is the
decision made by a jury selected by the parties.
In China, the parties usually have no say in having assessors or not. And it is often the judges
who decide and select assessors. This shows a serious defect of the system – monopoly of judicial
power in court –and lays the foundation for discontent among the public. Naturally, the judicial
system would suffer more pressure from people at large, which produces a lot of obstacles for its
operation and development.
Replace People Assessor System with Jury System?
Fail to fulfill a lot of functions which the British jury system has successfully demonstrated,
some Chinese especially scholars in judicial studies began to hold much doubt on the necessity
and practicality of People Assessor System.
Dilemma in Preserving People Assessor System or Not
In fact, as early as in 1950s, there are different opinions on the necessity of People Assessor
System. The first question is whether gain from the system is worthy the burden incurred in court
by it. The other question involves the quality of the work of assessors. If an assessor is only
ornament without much practical function, the sense of People Assessor System would be
questionable. It is a truth that since mid-1980, People Assessor System has been in decline, and in
most of region, it exists in name only.
Today’s attention to people assessor system is in no doubt connected with public
dissatisfaction with judicial corruption, for it is sought as a mechanism to supervise judge. Though
it has been suggested to introduce jury system form the west, experience from the past has shown
that jury system is difficult to transplant. Till now, this system has only functioned well to
anticipation in English-speaking countries and regions, and efforts in Japanese and France to
introduce it have ended up with failure. Taken into account China’s tradition and culture, we could
only choose to preserve and improve the people assessor system, which now has been indeed
unpractical.
But why should we bother to preserve such an unpractical system instead of abandoning it?
The decision to preserve it focuses on its political sense in public participation and democratic
element in judicial system. Participation by laypeople is also helpful in correcting certain
deflection out of judge’s professional perspective or community interests. Today in china law has
been more and more professional and together with this trend, the professional deflection would
have to been given attention. In addition to that, the pressure on judicial decisions suffered by the
court could be relieved when the monopoly of judicial power by judge has been changed.
In view of its long history of development, its scientific form, specific qualifications, clear
defined scope and the independent role of its jurors, jury systems in Britain do have much more
strength than its counterpart – People Assessor System in China, and exert positive influence over
national democracy, judicial procedure and Judicial system’s capacity against outside pressure.
However, though People Assessor System has failed to fulfill these functions, it is not necessary
that we should abolish it and replace it with Britain Jury System as regards China’s conditions and
the potential benefits from the improved People Assessor System. On May 1st, 2005, the Chinese
government issued New Regulations on Perfecting People Assessor System as the first step
towards the reform of People Assessor System. Though there is still a long way ahead of the
Chinese government in this reform, at least, it have made a good start and initialed a new stage in
the development of China’s judicial system.
Reference:
Microsoft Encyclopedia
Hu Daocai “Rational Choice and Construction of People Assessor System” 11
August 2004 < http://www.dffy.com>
Pan Pan “What is the purpose of Jury System and People Assessor System” 21
March 2004 <http://www.bjstats.gov.cn/rmht/index.htm>
He Weifang “Should We Restore People Assessor System?” 2 June 2002
<www_lawinfochina_com - Content.htm>
L148“Comparison between jury systems”5 Jan. 2005 <www.kdlawyer.net>
Cui Zili “Comparative Studies of Jury Systems”, 1st issue of 2003 of
“Comparative Studies in Law”