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Lay Judges in China under the New People’s Assessors Law: The Shaping of a Legal Institution
By Knut Benjamin Pißler | Article | 12 Tsinghua China L. Rev. 235 (2020) | Download Full Article PDF

In April 2018, China enacted a new law on the participation of citizens in court proceedings. The law is related to attempts that have been ongoing since 2015 to reform the institution of lay judges. The introduction of non-professional judges in China, referred to as people’s assessors, is intended to create greater transparency and thereby combat corruption and improve the quality of the decision-making process. Additional objectives include educating citizens about the law and creating greater trust in the judiciary and the legal system. With the aim of achieving these goals, the law for the first time prescribes in detail the qualifications required of people’s assessors and establishes an appointment process aiming to ensure that these lay judges better reflect the overall population. Another important element of the new law concerns the composition of judicial panels, which in the future will consist of either three or seven members. As to the larger panels (composed of seven members), the law provides that lay judges have an actual vote in determining factual questions but that they are limited to expressing their opinions on legal questions. By differentiating the role of lay judges based on the size of the panel, the question of whether a particular case is to be heard by a small or large panel takes on considerably greater significance. The criteria used in making this determination, however, remain uncertain in several respects.

I. Introduction

On April 27, 2018, the Standing Committee of the National People’s Congress adopted the People’s Assessors” Law, which was promulgated by President Xi Jinping on the same day and thereby entered into force. The law is related to trial reforms of the people’s assessor system, which the Standing Committee initiated in 2015. Shortly before the adoption of the People’s Assessors Law, the Supreme People’s Court presented a report to the Standing Committee on the results of these trial reforms.

Internationally, laypeople take part in the administration of justice both in Anglo-American (and, as of late, Japanese ) procedural law — in the form of juries, and in the legal systems of German-speaking countries — in the form of, for example, Geschworenengerichte (juries) or Schöffengerichte (mixed courts). However, in Europe lay participation is predominantly limited to criminal proceedings, whereas no “genuine lay judges” take part in private law, but rather expertise is to be provided by honorary judges in commercial courts, who occupy a middle position between professional judges with legal education and randomly selected lay judges. In formerly socialist states, the first-instance decision in all civil matters and less serious criminal offences is made by a panel of judges, which includes lay judges as observers.

Lay participation reflects different legislative goals in different political systems: it is regarded in Germany as a guarantee of transparency and credibility in jurisprudence, was meant in France (following the French Revolution) to reduce state influence on the judiciary and take account of the idea of democracy and liberalism, and was strengthened in the German Nazi era out of a sense of commitment to the principles of the political judiciary of the people (“Volksgeist”) rather than those of the rule of law. The institution of lay judges is criticized on the grounds that their participation in the increasingly complex legal systems with increasingly sophisticated assessments is no longer in keeping with the times. It is also argued that there is a danger of laypeople who are not familiar with the law being more susceptible to the inappropriate exertion of influence than professional judges in whom objectivity is instilled through their education and long-term experience.

In China, the idea of lay judges dates back to the late Qing dynasty. It was incorporated into China in the early twentieth century, and was finally realized under the influence of the socialist law of the former Soviet Union. In the People’s Republic, the strengthening of the institution of people’s assessors, which has been observed since 2004, is expected to combat corruption (through transparency) and improve the quality of decision-making processes. Further stated goals (very much in the socialist tradition) are educating the public about law and establishing trust in the judiciary and the legal system. These goals also arise from Article 1 of the People’s Assessors Law, according to which the law is intended to ensure citizens’ participation in trial activities, foster equity of justice, and increase public trust in the judiciary.

The shaping of the legal institution of lay judges in the People’s Republic of China through an independent People’s Assessors Law, which applies to all judicial proceedings, can be attributed to the fact that there are no separate civil, criminal and administrative courts in China. Rather, the people’s courts are responsible for administering justice in civil and criminal matters as well — since the Administrative Procedure Law came into force on October 1, 1990 — in public law disputes. Within the system of people’s courts (basic-level people’s courts, intermediate people’s courts and high people’s courts ) and the Supreme People’s Court, however, divisions have been established in accordance with the recently amended Organic Law of the People’s Courts of the People’s Republic of China — for example, a division for case filing and several divisions for the administration of justice in criminal matters, civil matters and administrative matters — for example, an enforcement office, a supervision office, and a research bureau.

Collegial panels, which are comprised of judges and people’s assessors , and in certain proceedings (especially in the second instance ) only of judges, are generally responsible for decision-making within the divisions. The allocation of cases to individual panels proceeds not according to an allocation plan, but rather at the discretion of the head judge of the division. The principle of the “lawfully designated judge” (gesetzlicher Richter) thus does not apply in China.

Other than what was contained in the Organic Law of the People’s Courts and the corresponding procedural laws, for a long time there was no legal regulation on people’s assessors until the 2004 “Decision of the Standing Committee of the National People’s Congress on Improving the System of People’s Assessors” (People’s Assessors Decision), which was repealed with the entry into force of the People’s Assessors Law. In 2010, the Supreme People’s Court also issued two judicial interpretations, namely “Several Provisions of the Court concerning Further strengthening the Functions of Collegial Panels” (SPC Collegial Panel Provisions) and the “Provisions on Several Issues Relating to the Participation of People’s Assessors in Adjudication Activities” (SPC People’s Assessors Provisions). While the SPC People’s Assessors Provisions were revoked in 2019 by the “Interpretation of the SPC on Several Issues concerning the Application of the Law of the People’s Republic of China on People’s Assessors” (SPC Assessors Interpretation), the SPC Collegial Panel Provisions have remained in force.

In the following section, the main provisions in the People’s Assessors Law and the SPC Assessors Interpretation are presented and compared with the previous legal situation (II), which is followed by a conclusion (III).

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