The Predicament And Renascence Of Chinese Jury System

During the long-time historical development, the jury system has yielded a tight and rigorous logical system, which also has been consistently heckled by the reality as the deepening of the judicial reform. Especially in today's China, the jury system is facing a situation that criticized by everyone. The different attitudes to the jury system held by the practical circle and the academia have drawn an image of great contention in China. Within those controversies, the predicament of Chinese jury system has fully come out and its renascence has emerged as an issue of the"spirit of reform"in China. Upon the thorough analysis of the theory and the valuation of the jury system, this thesis explores the basic values of the jury system and the"value sequences"it showed in different historical periods; discusses the two major models of jury at present and their performances from the perspectives of law and economics, using some basic theories in that field like the benefit analysis and the game theory; clarifies the historical development of Chinese jury system and indicates that the predicament we are in face of is applying the jury system instituted around the years of the foundation of the People's Republic of China into today's China which has greatly changed, without any study or judgment, and the renascence of the jury system means that we have to change the existing system of people's assessors and make the priority of the judicial democracy and fairness to show the jury system in its true colors of"judicial". With those approaches above, and the consideration of the background and the analysis of the value and the significance of this research, this thesis divides into six chapters since Chapter II.Chapter II outlines the theoretical basis of the jury system, and examines the definition of"jury"and"jury system", and the origin and the historical development of the jury system, shaping a context for the follow-up research.As a concept frequently referred to by the academia,"jury"has not been used very seriously or cautiously. Various understandings of it have caused a confusion of its accurate meaning, which also caused by its common use as a concept of general political meaning, rather than of its original legal meaning. Currently there still exists a protrudent jumble and irregularity of the use of the concept"jury system". By analyzing the four major understandings at present of the concept"jury system", we can find some basic features of it: firstly, there has to be a trial, and the jury must be a part of either the finding of facts or the application of law in that trial, or both; secondly, the jury is not adjudicating on their own in that trial, but accompanied by the judge; thirdly, being in the trial is the form of the jury and actually adjudicating is the content; lastly, the jury must play a directive and decisive role in the key part of the trial. So in terms of the modern trial system, a"jury"is not a real one if it is devoid of the form of being in the trial or the content of actually adjudicating.The origin of the jury system included two stages: the budding stage and the stage of formal establishment. In the first stage, the academia failed to unify the understanding of the jury system, which was iconically described as"the mist of the origin of the jury system". After a period of confusion on concept, the jury system finally got established in Britain with few controversies. The history of building up the jury system is completely reflected by the generation and operation of the British jury system, which was absolutely not created over one night, but experienced a complicated process of institutional choice and value discovery.The jury system developed along with the political changes in respective places of origin. It showed a clear division of development path between the Anglo-American Legal System and the Continental Legal System. The British jury system experienced a winding course of development. Though the jury system and its application do not own a long history in the U.S., it has become a typical example of the jury system, with a strong vitality. After bringing in the jury system, the countries of the Continental Legal System, including France and Germany, have experienced a large split. Countries like France and Germany ultimately set up the mixed court system and became the typical example of that system; in the meanwhile, some other countries embraced the return of the jury system. All those complex changes mirrored the cognitive issue of multiple pursuits of values of the jury system.Chapter III analyzes the reservation or revocation of the jury system. This chapter proceeds with setting a starting point for the value analysis of the jury system, and resolves in detail the context of the value analysis, and then probes the unique pursuit of values of Chinese jury system, combining with scrutinizing the national conditions of China.In the field of"trial", where the jury system is directly applied, the public credibility of the trial and the optimum distribution of the trial resources are two important and typical values. The being of the jury in the court can restrain the judge from misusing authorities or corrupting and show the public credibility with the idea of"like trial, like jury". The jury can also fill up the gaps left by the judge and optimize the allocation of the trial resources with the multiple knowledge structures and social experiences of the civilians on the jury. In the judicial context, the entry of ordinary people into the vital field of public power fully demonstrates the value of judicial democracy and the pursuit of judicial fairness. In the political context, the advocacy of freedom and the embodiment of popular sovereignty are the key points of the values of the jury system.Besides reflecting the overall character, the values of Chinese jury system show their own characters. They can promote the harmony in the trial and in the whole society. They also meet the need to innovate in the social management by the form of"larger justice", and impel the construction of the political civilization as an important motive force.Chapter IV explores the institutional benefits of the jury system on the basis of previous value judgments, and clarifies its benefit performances under different models by introducing law and economics into the research.There lies a necessity in the jury system, just like in other legal systems, that we should see it from the perspective of law and economics, which can also make up the deficiency of the legal research, especially its deficiency on the level of benefits that is beyond the values and measurable. The approach to examine the benefits of the jury system is mainly applying the theory of law and economics. The possibility and feasibility of analyzing the jury system through law and economics are produced by the association analysis between law and economics and the connections between law and economics and judicial systems. The basic hypothesis of law and economics includes the scarcity of resources, the rule of utility maximizing and the supposition of economic man, and its basic approaches include the analytical method of individualism, the incentive analysis, the cost-benefit analysis and the game analysis. The basic models of those analyses include the theory of cost-benefit, the game equilibrium and the theory of demand and supply. The application of benefit examination of the jury system is primarily shown as the cost-benefit examination of the jury system, the demand and supply study of the jury system and the game theory application to the jury system. The orientation of examining the jury system through law and economics and its preliminary conclusions lay a foundation for the subsequent model selections.Chapter V examines the Chinese jury system in terms of practice, which is also a"phase analysis"of the present system of people's assessors. The root causes of the predicament that the present jury system is facing and its characteristics of phases can both be found by exploring the historical progress.On the origin of Chinese jury system, this thesis probes the brewing of the transplantation of the jury system in the late Qing Dynasty and summarizes the reason why the jury system was failed to establish during that period; with limited materials, covers the issue of establishing the jury system in Republic of China and points out the reason why the system was not successfully built up; the system of people's assessors originated in revolutionary base areas performed a deed never to be obliterated for the foundation of new China; after liberation, the Chinese jury system experienced three typical stages: the stage from 1949 to the reform and opening-up, the stage from the reform and opening-up to the issue of the"Decision to Improve the System of People's Assessors", and the stage since the issue of the Decision. In the first stage, the Chinese jury system experienced both the full development at first and a total destruction later in the Great Cultural Revolution. After the revise of the Constitution in 1982, the jury system was initially restored and rebuilt, but also facing the complicated reality of an existence in name only and an enthusiastic exploration of the legislation of the jury system at the end of the 20th Century. After the issue of the Decision by the Standing Committee of the National People's Congress, a new round of doubt and debate arose, concentrating on issues like the disparity between the legislative idea and the implementary manner, the controversy over the judicial elitism and the judicial democratism, the query about the qualification of people's assessors, the doubt to the effect of the people's assessors'jury and the exploration and the dispute of the jury of people's assessors.Chapter VI discusses the model selection of the new Chinese jury system, including the analysis of the design concept, the consideration of the specific composition and the schedule and line map of the detailed implementation.The new Chinese jury system should be explicit about the concept of the system design on three matters: designed by the National People's Congress and instituted by the Constitution; separating the administration and the employment and simultaneously using both the reward and the punishment; considering in comprehensive and maximizing the benefit. On the specific composition of the new system, the improvement should be carried out within six aspects including the mode, the range, the qualification, the initiation, the method and the administration of the jury. On the detailed implementation, the national conditions should be followed and a serious and cautious attitude should be held; on the premise of the total transformation, an implementary strategy of"two stages"and"three periods"should be pursued and parts of the system should be applied, in order to move forward steadily the establishment of the new system.Chapter VII analyzes the obstacles in the promotion of the new jury system and the issue of coordination between systems. The obstacles include the influence of the absence of the legal culture, the repulsion from the judicial elitism, the"Cask Effect"of the development of rule of law and the new challenge brought by the rapid social transition. To promote the new jury system, we have to break down those obstacles and achieve the coordination between systems. We should, from the perspective of the holistic trial system, make the team of judges a more elite one and realize the centralism of the party in the trial, along with constructing relevant cooperative systems like the"direct testimony principle". We also should deepen the reform of the present judicial system, realize the judicial independence, promote the comprehensive management of social problems and care to coordinate the system of people's assessors and the jury system. The feature of ordinary people shown by the jury system requires us to strengthen the participation of the people in politics and create channels for citizens to get involved within the management of public affairs in an orderly and diversified manner. It is also needed a unanimous acceptance of the rule of law to impel the effective implementation of the new jury system.The predicament of Chinese jury system is mainly shown as the debate over models, but its root causes lie in the cognition of the values of the jury system. The key point for the Chinese jury system to break through the predicament and achieve its renascence is returning to the judicial standard on the issue of the cognition of the values of the jury system.