"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
Two days ago, I had the pleasure of talking to Hon. Duan, a senior justice on the Supreme People's Court of China, who is currently on administrative leave to study American administrative laws here at SMU Law School. In our two hour long conversation, we talked about many different topics regarding the Chinese and American legal and judicial systems. One of the most interesting discussions concerns the jury systems in both countries. The United States has a very unique jury system that is often vilified and glorified by people of different philosophies. However, many people probably do not know that China actually has its own jury system, at least on the books. So, I think the importance of this subject deserves a little discussion on this blog.
A. History of the Chinese Jury System:
My cursory research reveals that a rudimentary jury system existed even during the early days of the communist revolution. The idea was that common people would be selected to participate in rendering justice. However, the jury system formally established in the 1954 Constitution, along with the entire justice system, came to a halt during the horrific Cultural Revolution. The end of the Cultural Revolution gave the Chinese jury system a second chance. In 2004, the Standing Committee of the National People's Congress promulgated the Resolution/Decision Regarding Improving the People's Jury System ( 关于完善人民陪审制度的决定) ("Jury System Decision"), which came into effect on May 1, 2005. Currently, the Chinese jury system theoratically operates under this piece of legislation.
B. The Criteria for Selecting Jurors:
Pursuant to Articles 4-6 of the Jury System Decision, a candidate for the people's juror must meet the following requirements:
a. must uphold the Chinese Constitution;
b. must be older than 23 years of age;
c. must be of good moral character;
d. must be physically fit and healthy;
e. must have a minimum of a junior college degree (大学专科文凭);
f. must not be a lawyer, a member of the National's People of Congress, employee of the Public Security Bureau, People's courts, People's procuratorate, or National Security;
g. must not have committed a crime;
h. must not have been terminated from public office.
C. Method of Selection:
Assuming that candidates meet the above-criteria, they can be nominated by their work units (Danwei) to the local people's court for consideration. After nomination, the local people's court and the justice department of local government coorporate to evaluate such individuals before they could be recommended to the chief judge of the local court, who can then petition the local people's congress to officially appoint the recommended individuals as jurors.
The number of jurors is determined by the local people's courts on a as-needed basis.
D. Working Procedures:
First of all, Chinese jurors, unlike American jurors, have the same authority as other judges who serve on the presiding panel. They could ask questions during court proceedings, and can cast votes regarding the final decision and outcome of cases. In fact, Chinese trial courts, much like appellate courts, decide cases based on the principle of majority rule. In other words, if the juror vote is in accordance with the vote of another judge panelist, then the majority votes determine the outcome of the case.
Second, jurors can participate in cases of varying nature. Except for summary judge proceedings (简易程序审理) and other cases provided for by law, jurors could hear, along with his/her judge panelists, the following types of cases:
a. criminal, civil and administrative cases of significant social impact;
b. criminal, civil and administrative cases where criminal defendant or plaintiff in administrative case requests juror presence.
Third, the law requires that where jurors participate, there must be at least one juror for every two judges.
Fourth, the normal term for jurors is five (5) years.
Fifth, jurors, like judges, must avoid conflicts of interest during legal proceedings, and must undergo professinal training regarding procedures and substantive law.
E. Compensation for Jurors:
Chinese jurors, like their American counterparts, are entitled to monetary compensation for their service. However, much like their American counterparts, their compensation is minimal. The source of such compensation lies in the budget of the local courts and governments.
F. The Reality of the Jury System in China:
While I applaud the jury system as established by Chinese law, I have to say that the system exists largely on paper. Based on the facts above, it is obvious that severe impediments exist for the actual functionaity of the Chinese jury system. First, the selection criteria post a high bar for many Chinese people. The intent behind such criteria is that only people with good education and connections could possibly be nominated, not to mention being appointed. Second, because of budgetary limitations, courts and local governments are not going to fork out more money to conduct jury trials. Third, I doubt that litigants in China actually prefer to have jurors serving on their presiding panel (this is to be debated and researched.). As a result, the jury system does not play a significant part in the Chinese justice system.
G. Future of the Chinese Jury System:
One thing is certain--the Chinese government obivously thinks that jurors do have a role to play in the justice system, given the relatively long history of the system in Communist China. The question is how the jury system can actually be implemented or reformed to function. On that note, Justice Duan thinks that the American jury system appears to guarantee procedural fairness, while the Chinese system appears to strive for substantive fairness by imposing high standards on juror candadates. She believes that China can actually borrow the spirit of the American system to ensure procedural fairness in Chinese legal proceedings. How the Chinese jury system be fashioned in the future remains to be seen.