Prospect Analysis of the Application of the Jury System in Our Country

Wang Wei

(School of Law Southwest Petroleum University，Chengdu Sichuan 610500)

The Jury System is an important system where state judicial organ absorbs ordinary citizens to participate in the judicial activities.It aims to extend judicial democracy and supervise the correct implementation of laws by judicial organ through participation in the trial of ordinary citizens who have no specialized knowledge and judicial experience.〔1〕Today，the Jury System includes two typical jury patterns，the pattern of jury in Anglo-American law countries and the pattern of mixed court in continental law countries.Actually the mixed court system is a transplantation and transformation of the jury system in combination with their respective legal traditions and institutions by continental law countries.

Ⅰ.Comparative analysis of two jury patterns

Sharing the common origin，both the jury system and the mixed court system fundamentally aim at absorbing ordinary citizens in the proceedings，introducing“folk wisdom”and“mass rationality”into judicature and improving judicial democracy.However，due to different legal traditions and litigation patterns，there are significant differences in the selection of jurors，ways of participating in the proceedings，the distribution of responsibilities，etc.

Firstly，the distribution of responsibilities between the judge and the juror is the primary difference of two jury patterns.In the pattern of jury of Anglo-American law system，jurors form a jury whose seat is separate and responsibility is distinct from the judge.The role of the jury is described as that of fact finder that is to make independent judgments on the basis of evidence and fact when the judge has no right to interfere，while the professional judge as a law applier is responsible for applying appropriate laws and trial techniques and providing instruction and guidance when involving necessary legal knowledge in the process of judging the fact.In the mixed court system，the juror and the judge，sitting together on the judgment seat，form a collegiate panel and take the same responsibility for finding the fact and applying laws.

Superficially，the juror in the mixed court system seems to have more authorities than that in the jury system.On the contrary，that the former often becomes an appendage of the professional judge due to a lack of independence in the trial leads to the fact that jury trial usually becomes a mere formality and has difficulty in exerting a substantive function，while the later can judge the fact independently and play a decisive role in the trial.

Secondly，ways of participating in the trial for jurors differ in two jury patterns based on different litigation patterns.Anglo-American law countries apply the adversary system where the party concerned or the prosecution and defense play a leading role in the court trial through positive confrontation and judicial officers(the judge and the jury)just passively“listen to the case”as a referee.Concretely speaking，the professional judge governs the court trial and jurors sit silently and listen to the statement，evidence and debate with no questions and records.After court trial，the jury enters the jury room，conducts secret deliberation and judges the fact according to the principle of unanimity or absolute majority.If the jury is unable to reach a verdict after long serious deliberation，the judge declares the case“hung jury”，organizes a new jury and rehears the case.Continental law countries apply the inquisitorial system where judicial officers(the judge and jurors)play a leading role in the court trial and“hear the case”through positive investigation and evidence collection.The juror as non-professional judge has the same authority as the judge to participate in the court trial and takes in charge of investigating the evidence and fact.The juror may question the defendant and witness，examine the exhibit and record the testimony he or she considers important.After court trial，the judge and the jury enter the jury room，study the fact of the case and the application of laws and make a decision through voting.When voting whether the defendant is guilty or not，a verdict of guilty must be reached based on a majority of over two thirds of the total number according to the principle of absolute majority.Therefore，either a verdict of guilty or not guilty exists in continental law countries，never“hung jury”.〔2〕

So assessors’participation in the trial contributes more to high litigation efficiency and low litigation cost.Cooperation between the judge and assessors facilitates timely communicating.Meanwhile，the smaller number of assessors avoids the high cost of the jury consisting of twelve people.〔3〕On the contrary，subsidies provided by the country on meals，lodging and transportation of the huge jury cost a lot in the Jury System.In addition，the instruction for jurors by professional judge adds litigation content and cost.Concerning voting mechanism，a verdict of guilty is reached with more caution and operational cost of the jury system of Anglo-American law system is relatively high.

Thirdly，the selection and the term of office of jurors are different.The selection of jurors is divided into two steps in the Anglo-American law system，the basic qualification examination and the“selection in court”.First，the judge selects jurors from the voter register and a list of driver license holders at random and examines whether they have the basic qualification for a juror by means of questionnaires etc.The basic qualification generally includes the nationality，age，residence，communication skills，no felony record，etc.Then，the prospective jurors are notified to attend the“selection in court”where the prosecution and defense decide whether to apply for challenges through voir dire.In Anglo-American law countries，the term of office of jurors is not fixed，one selection for one case and one term of office for one case.The continental law countries differ little in the basic qualification for a juror but much in the selection from Anglo-American law countries.The prospective jurors are selected by the court from the original jury list made by specialized institutions in advance and the prosecution and defense apply for challenges.In many continental law countries，the selection of jurors is not random with high subjectivity and favors the high-cultural quality group.Without“selection in court”，the prosecution and defense apply for challenges directly and state the reason and the judge decides whether to grant the request above.Concerning the term of office，the juror is not selected for only one case and has a certain term of office in most civil law countries.For example，the term of office of jurors in Germany is four years and re-election is permitted.

From the perspective of the appointment mechanism of two jury patterns，the juror in the jury system is more characterized by randomness and temporariness，which results in the uncertainty of trial body to a certain degree and thus avoids judicial tyr-anny，arbitrariness and intervenes in the judicial justice by human relationships and public power.But from the perspective of litigation efficiency and economy，the mixed court system is superior to the jury system because the omission of“selection in court”in the selection of jurors greatly reduces time consumption and economic cost.

In summary，two jury patterns have their pros and cons.The mixed court system improves the efficiency to a certain degree but weakens the democratic and justice value of the Jury System.Despite the inefficiency of the jury system，it has an undeniable superiority in embodying democracy and guaranteeing justice thanks to the mechanism of the separation of powers and others.

Ⅱ.Development and status quo of the Jury System in China

Influenced by the tradition of judicial tyranny，there is no Jury system in ancient China.The Jury System was introduced in our country from the West during the late Qing dynasty and not applied in the revolutionary bases by the Communist Party of China until the 1930s and 40s.The aim of the Jury System in this period was people as masters，people’s supervision of the judicature and judicial mass line.After the founding of the People’s Republic of China，the people’s assessors system has experienced a tortuous development from prosperity to decline and to prosperity.After the founding of new China，the people’s assessors system，taking the Soviet Union’s jury system as a source，became one of the methods of transforming the old judicial contingent.With the accomplishment of transformation of old judicial contingent and establishment of people’s own professional judicial contingent in 1960s，the basis of existence of the people’s assessors system became a practical problem and the system began to decline.The 1982 Constitution deleted the regulations of people jury and in 1983 the Organic Law of People’s Court made a modification that people’s jury should be used optionally not compulsorily in the first instance.At the end of the 20th century，under the new historical condition of judicial corruption，low public credibility of judge and increasing people’s judicial appeals，the people’s assessors system was re-stressed and re-oriented to promote judicial democracy，justice and supervision.In August 2004，Decision on the Improvement of the System of People’s Assessors was passed by the Standing Committee of National People’s Congress，which marked the reconstruction of the people’s assessors system in new era.〔4〕In 2010，the Supreme Court continuously issued two judicial interpretations，Regulations for People’s Assessors on Participating in Judicial Activities and Suggestions on Further Strengthening and Promoting People Jury，which includes more detailed regulations of the people’s assessor system and provides an operational standard for its implementation.

Ⅲ.Feasibility analysis of the implementation of the pattern of jury in our country

Facing the bottleneck in the development of the Jury System in our country，there are three opinions in academic circles.The first is the theory of abolishment.It claims that the Jury System，as a decoration，is unable to exert its function of supervision and constraint with great defects in the institutional design and thus should be abolished.The second is the theory of improvement，which acknowledges the defects and advocates reformation and improvement based on the current jury pattern.The last is the theory of substitution that advocates the mixed court system as the replacement of the jury system.The writer agrees on the third one that the jury system should be established in our country as soon as possible in order to give full play to the efficacy and value of judicial democracy and supervision of the Jury System.

Firstly，rational distribution of responsibilities of the pattern of jury will guarantee the jurors’independence and fundamentally change the situation of“to participate but not to make judgments”.It conforms more to the law of action that the juror and the judge are responsible for judging the fact and legal issues respectively.Because it is far-fetched for ordinary people to deal with professional legal issues but competent to judge the fact based on experience of daily life and rationality.In this pattern，the juror can express independent opinions sufficiently and positively instead of being an appendage of the professional judge，which puts an end to the situation of“to participate but not to make judgments”.Otherwise，if the pattern of mixed court is still applied in our country with no clear-cut distribution of responsibilities(jurors without legal knowledge and professional judge the fact and legal issues together)，any reform will be superficial and the Jury System still be nominal.“Throughout the trial...the‘juror’receives unrestrained and powerful instructions by the judge who doesn’t hesitate to point out the mistakes in the trial or improper statements and actions of his untrained partners.”〔5〕The former worships blindly the judge’s professionalism and authority and resigns himself to the judge’s judgment and decision.

Secondly，the problem of litigation efficiency is not an insurmountable defect in the jury system.The opponent usually takes the low litigation efficiency as an important reason against learning from the pattern of jury.For some individual cases，applying a jury in the trial costs more:the selection of jurors may be hard work and it is more difficult and time-consuming to adduce evidence to a group of laymen than only the judge.The lawyer presents a conclusive statement and the judge gives an oracle.〔6〕But we can’t evaluate the social effect of the jury system simply based on the cost and profit of individual cases.As President of Higher People’s Court of Shaanxi，An Dong，says in the interview by the journalist of Legal Daily，the implementation of people’s jury system will add certain judicial cost，but compared with the human，material and financial resources spent in dealing with complaining and petition letters in recent years，the cost of people’s jury system is much lower.In addition，the applica-tion of the jury in the trial may exert influence on the litigation efficiency of individual cases，but not much on the overall efficiency of civil litigation or criminal litigation in a country.In Anglo-American law countries which apply the jury system，the jury is not frequently applied in the trial practice due to legal restriction on its scope of application and choices by the party concerned.For example，the cases in which the jury is applied in the trial amount to less than 5 percent of the total number in America whose jury system is the most developed.〔7〕Furthermore，the defects of cost and efficiency can be overcome through the improvement of selection and voting mechanism in the introduction of the jury system.

Thirdly，the litigation pattern will not become an insurmountable obstacle to introduce the jury system in China.Undeniably，the jury system originates from the adversary system in Anglo-American law system.In this pattern，the prosecution and defense play a leading role and reappear the fact of the case by means of adducing evidence，cross-examination and debate in the court trial while the jury and the judge deliver a verdict based on the fact and law respectively by means of listening to the statement and debate of the evidence and fact with no positive questions.But it doesn’t mean the jury system cannot be grafted or transplanted by the inquisitorial system.The introduction to the jury will not affect the leading position of judicial officers in the inquisitorial system and they(professional judge and jurors)can question the prosecution and defense or investigate and collect evidence.The mainly change lies in the distribution of responsibilities of the professional judge and the juror.What’s more，the adversary system of Anglo-American law system and the inquisitorial system of continent law system have already learned from each other and the trend towards integration is becoming obvious.Our litigation system is categorized within the inquisitorial system，but the litigation system reform has drawn close to the adversary system in recent years including reforming pretrial procedure and providing the party concerned with opportunities to debate sufficiently，with increasingly strong color of debate and confrontation.

Fourthly，the success in experimental units of the people’s jury system proves the feasibility of the application of the jury system in our country.In February 2009，six cities in Henan including Zhengzhou were firstly chosen as experimental units of the people’s jury system and Pilot Project on the Implementation of the People’s Jury System in the Criminal Trial(Trial Implement)was issued.In 2010，the Higher People’s Court of Henan issued Suggestions on the Implement of People’s Jury System(Trial Implement)and promoted the people’s jury system throughout the court system of Henan.When the people’s court needs a people’s jury in the court trial，twenty to thirty prospective jurors are first selected at random from the database for this case and nine to thirteen(the number must be odd)are finally picked up to form a people’s jury In the court trial，when the jury needs to question the defendant，questions should be handed over to the presiding judge in written form and be asked by the presiding judge.After court trial and before adjudication，the jury convenes a meeting to discuss and make comments in writing form that should be taken into account in the deliberation of collegiate panel.When there are great disagreements between the jury’s comments and collegiate panel’s adjudication，the case should be submitted to the judicial committee for research or a higher court for instructions.If the case is too complicated to pronounce a sentence in court，the court should arrange jurors’accommodation，avoids their contact with either the prosecution or defense and bears an allowance for late meal and transportation.So the people’s jury system doesn’t transplant from the jury system in Anglo-American law system entirely，but learns from legislative experience in the scope of application，number of jurors，term of office，the mixed court jury and so on.Although the people’s jury has no adjudicative right of the fact of the case，its comments provide important reference for the collegiate panel’s adjudication.Some experts think that it sets a national precedent for people’s jury upgrading from“individual”to“group”.The supervision by ordinary people of the core link of judicial trial not only contributes to judicial openness and justice，but also accumulates valuable experience of establishing the people’s jury system with Chinese characteristics.Indeed，the pilot reform of the people’s jury system in the courts of Henan achieves good legal and social effects.〔8〕

Therefore，the jury system originates from the Anglo-American law system，relies on the adversary system and has defects of judicial cost and efficiency，but its operational mechanism and characteristics agree more with our national conditions.Compared with the pattern of mixed court，it is more feasible to apply and develop the jury system in our country.

Ⅳ.The Butterfly Effect of the application of the pattern of jury in our country

The application of the jury system in our country not only is feasible，but also will cause a knock-on social effect and fully embody the value of judicial democracy and justice of the Jury System in our country.

Firstly，it curbs judicial corruption and relieves the pressure of litigation explosion.In recent years，our judicial trial system has exposed more and more problems and judicial corruption has become a major factor in affecting social stability.The reasons are，firstly our judge has too much right of discretion with too little restriction and secondly the judge is easily interfered by local courts，higher authorities and money due to the administerization of the judge and the lack of independence.The jury system is an effective prescription for judicial corruption.In the pattern of jury，the judge makes an adjudication based on the jury’s independent finding of the fact，which is the most powerful restriction of judge’s right of discretion.At the same time，decentralization and restriction of the judge’s authority strengthens the judge’s independence and anti-interfere ability，thereby adjudication is less likely to be influenced by money，authorities and human relationships.Besides，it is more difficult to bribe a jury consisting of about twelve people through random selection.When there is no space for black case work，the party concerned in a legal or evidentiary disadvantage will consider more resorting to arbitration，mediation，transaction and other non-litigation approaches because multiplicity of actions may bring them defect suits.Therefore，the jury system curbs judicial corruption and causes another effect that dispute resolutions by means of litigation or trial decrease greatly and unprecedented trial pressure of litigation explosion on people’s courts will be relieved.This effect has been confirmed in America:according to statistics，about 20 percent of the prosecutions in the federal courts system are revoked before pretrial procedure，70 percent are solved in the pretrial procedure and only 1.3 percent entry in the trial procedure.〔9〕

Secondly，it accelerates the development of judicial reform and pushes it into depth，which is a deeper impact of the scientific transplantation of the jury system.The jury system reform，as a small part of judicial reform，requires a lot of follow-up supporting system in order to push forward the reformation and perfection of a series of litigation and judicial systems:First，promotes the perfection of evidence system.Regulations on Civil Prosecution Evidence and Amendments to Criminal Procedure Law(2012)by the Supreme People’s Court improve the evidence system in civil litigation and criminal litigation，but not comprehensively or concretely，such as distribution rules for burden of proof in civil litigation，evidence exchange system，the principle of evidentiary adjudication in criminal litigation，the exclusionary rules of illegal evidence and others need to be further clarified and refined.The evidence system above must be improved to meet the need of the jury verdict.Next，promotes the transformation of litigation pattern.Although some factors of the adversary system have been integrated into our current litigation pattern，the introduction of the jury system must further push it into the direction of adversary system including the implement and enhancement of the debating right of the prosecution and defense，the implement and improvement of the principle of direct speech and continuous trial system，the corresponding adjustment of lawyers’system and the improvement of lawyers’system of investigation and evidence collection and system of meeting.

Thirdly，it raises citizens’democratic and legal awareness and promotes the process of the rule of law，which is the boarder prospect provided by the jury system.Because jurors are laymen of law，the prosecution and defense must conduct more sufficient cross-examination and debate to jurors than the judge so as to persuade the jury to deliver a verdict in favor of their own side.Both jurors and the public are edu-cated in this process.The Lord Chancellor，Lord Denning，once said，“The jury trial is a kind of job that gives ordinary people the most useful lesson on civil right.This lesson was handed down from age to age 800 years ago.I believe that participating in the judicial activities functions more than any other activity in cultivating British law-abiding habits.”〔10〕Tocqueville also affirmed the function of the jury system in this aspect，“the jury should be considered as a permanent free school where every juror will become proficient in laws by means of using his own right，keeping in touch with the most educated people of upper class，studying techniques of applying laws and relying on the lawyers’help，judges’instructions and even their blame.I think，American obtain their political and practical knowledge mainly from the long-term application of the jury system.”〔11〕Scholars have reached an agreement on the powerful function of the jury system in universal law education and raising citizens’legal awareness.Citizens’legal awareness is the soil for the progress of the rule of law and the improvement of citizens’legal awareness and quality must accelerate the process of the rule of law in our country.

Epilogue

Indeed，the jury system is not a perfect system that brings us more advantages than disadvantages.The jury system is not a prescription for all diseases that we can consider the reform of the Jury System as a breakthrough point to curb judicial corruption and manage judicial reform as well as an opportunity to promote judicial reform throughout our country.Therefore，the application of the jury system in our country is imperative.

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