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Home / Issues / Volume 11, Number 2 / Lay Participation in the Adjudication of Legal Disputes
VOLUME 11, NUMBER 2
Lay Participation in the Adjudication of Legal Disputes: A Legal-Historical and Comparative Analysis Focusing on the People’s Republic of China and Its Special Administrative Region Hong Kong
By Andra LE ROUX-KEMP | Article | 11 Tsinghua China L. Rev. 183 (2019) | Download Full Article PDF

Abstract
The participation of lay persons in the adjudication of legal disputes is generally regarded as a necessary and effective constituent for a credible and independent judicial system. This is exemplified in the trial by jury in jurisdictions with legal systems following the common law tradition, and the participation of lay assessors sitting together with (a) professional judge(s) in mixed-court tribunals in jurisdictions with legal systems following the civil law tradition. This article offers a comprehensive, legal-historical and comparative analysis of the respective modes of adjudication adopted in the People’s Republic of China and its Special Administrative Region of Hong Kong, for as far as these make provision for the participation of ordinary citizens in the adjudication of criminal legal proceedings. The focus on lay participation in the criminal legal proceedings of these two jurisdictions serves as an example of legal transplants from other “Western” jurisdictions to the “East” through conquest, colonization, and legal reform. The critical analysis and review of these legal transplants as provided for here, not only elucidate the unique laws and legal systems of these two jurisdictions operating under the one country two systems principle, it also raises questions with regard to the true value and suitability of the respective lay participation models with reference to its distinct, contemporary Chinese context. The question remains, from medieval “West” to the present-day “East”, whether the participation of lay persons in the adjudication of legal (criminal) disputes is not overestimated, and whether it is truly a guarantor of (or at least contributing to) a credible and independent judicial system.



I. Introduction

The participation of ordinary citizens in the various spheres of public life serves an important legitimation function as it represents the local interest, the voice of the people, the unprivileged classes, and ultimately, the ideals of democracy. In terms of national legal systems and the adjudication of criminal disputes specifically, the role of lay persons is generally recognised as an essential component in the state legal machinery. This is true of most states, jurisdictions, and other legal entities the world over, and irrespective of the predominant political ideology or the specific features of their legal systems, as it is generally accepted that people will have greater confidence in a system – whatever that system is – if they perceive themselves and their peers as having some stake, or input therein.

The focus of this article is on lay participation in the criminal legal proceedings of the People’s Republic of China and its Special Administrative Region of Hong Kong. This world region offers a particularly interesting locus for reflection on the two dominant modes whereby lay participation in criminal legal proceedings is ensured – the jury trial and the mixed court or tribunal – as both these two models feature in the courts and legal systems of the People’s Republic of China and its Special Administrative Region, Hong Kong. The focus on lay participation in the criminal legal proceedings of these two jurisdictions is not only interesting in terms of their unique laws and legal systems, but also serves as an example of legal transplants from various other “Western” jurisdictions to the “East” through conquest, colonization and legal reform. By no means does this article attempt to compare the Western systems of lay participation in the adjudication of criminal disputes with the analogous practice in the legal systems of the People’s Republic of China and its Special Administrative Region of Hong Kong. Indeed, this would be a futile endeavor; it has long been settled that one cannot “interpret the Chinese system in terms of Western juristic thought and to analyse it in terms of comparative law”. Nor can one interpret and compare medieval legal processes and practices with those of our modern legal systems and laws today. However, the tracing of the legal-historical development and subsequent geographical transplants of legal systems and their institutions for adjudication, including the consistent participation of its citizenry, offer valuable insights for further analysis. It allows us to see, “with greater clarity than elsewhere, what may happen when legal institutions are transferred bodily to foreign countries, what errors are likely to arise, and what results can be achieved.”

Part II of this article provides a historical overview of lay participation in the process of adjudicating criminal disputes from its early representations in medieval Europe and England, up to the nineteenth century when the rudiments of the two dominant legal traditions – the civil law tradition and the common law tradition – became well established. From here, the discussion and analysis will turn to the “East”, where these models of lay participation in the process of adjudicating criminal disputes were transplanted through conquest, colonization and legal reform. To this end, Part III of the article provides a succinct overview of the development of the Chinese legal system from its earliest origins to date. It will be noted that the Chinese legal system does not conform to, or truly resemble either the civil law tradition or the common law tradition, and continues to develop as a unique third legal tradition of the world. Part IV of the article focuses specifically on lay participation in the adjudication of criminal trials in the People’s Republic of China as well as its Special Administrative Region of Hong Kong. This overview and analysis highlight the distinctive features of and obstacles to the legal development and reform of the people’s assessor system of the People’s Republic of China, as well as the trial by jury of the Hong Kong Special Administrative Region. The article concludes with a critical reflection on the present state of lay participation in the criminal legal proceedings of the People’s Republic of China and its Special Administrative Region of Hong Kong. While it will be questioned whether lay participation in the criminal legal proceedings of these two jurisdictions truly contributes to the credibility and independence of the respective legal adjudication processes, it will also be shown that its ultimate value may lie in its theatrical bid for consensus in society; a necessary ceremony in the adjudication of legal disputes.

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