| As a judicial system for the participation of common people in the trials, the jury system has existed for more than two thousand years in western countries, sometimes securely established in legislative practice and sometimes weakened or even abolished. Since the founding of the PRC, the system of the people's jury has also experienced many ups and downs. According to my understanding, if we want to dispel our misconceptions about the establishment or abolishment of the jury system, we must perform a historical study to explore the conditions under which the western as well as Chinese jury systems were established, the conditions under which they were changed, the causes behind all this and the roles states and societies play in this. Only in this way can we master the law governing these ups and downs of the jury system. Therefore, efforts have been made in this paper to explore theoretically the historical causes of the establishment and changes of the jury system with the relationship between state and society as a perspective and the purpose of these efforts is to provide some prophetic foresights for the future of the jury system.This paper can be divided into three parts, namely, the preface, the main body and the conclusion and the main body of this paper can be further divided into five chapters.In the preface, attention has been directed to the introduction to the real reasons and background for the raising of the thesis statement, to the elaboration of the perspective for theoretical research and the significance of this research, to the clarification of the law governing the ups and downs of the jury system and to the introduction to relevant analytical models. Recently, there has been a heated discussion in the academic circle as well as among the practitioners about the continual or abolishment of the jury system. Some hold that the jury system is a representation of judicial democracy and therefore it should be kept and used to the fullest extent; others hold that the untrained do not have the capability to verify facts and to apply laws therefore they are not compatible with judicial justice and they further invoke the fact of the declining of modern jury system as the support of their argument. In western settings, the jury system has evoked considerable debates since its first coming into being and this fact alone reminds us of the complexity of this system. Under such circumstances, people's attention should be directed to the influences of economy, politics, society, law, etc, which are behind the jury system and which at the same time exert undeniable influence on it. On the other hand, the state of affairs of a country's politics, economy, society, law, etc constitute the entire content of the relationship between the state and the society. Therefore, with the relationship of the state and the society as a perspective, this paper focuses on the exploration of the causes of the ups and downs of the jury system and it is strongly believed that this effort will help find out the law behind these ups and downs and further our conception and understanding of the jury system. Secondly, the occurrence and development of the jury system have to be looked at with long duration in order to better understand and master it. Still only in this way can we find the fact that the jury system prospers with the deepening of democracy and wanes or even disappears with authoritarianism and overt centralization.Chapter one of this paper is devoted to the investigation and analysis of the historical causes of the establishment and changes of the system of freeman's court of ancient Greece and the system of the judicature by the freeman's assembly of the ancient Rome. It is commonly held that the system of freeman's court of ancient Greece began with reforms by Solon, and it was established as the consequence of the long time suppression suffered by the plebeians and their long struggle against this suppression. Due to the fear of the politics of illegal monarchy and the restoration of nobles and the establishment of the supremacy of Athens on the sea, Clisthenes and Pericles performed reform successively. These reforms enhanced the direct democracy of Athens and enabled the plebeians to participate directly in the judicial activities of the freeman's court, and in the final analysis further strengthened the system of freeman's court. After the conquering of Athens by Macedonia, democracy ended and so did the system of freeman's court.In Rome, nobles long occupied the dominating position in respects like economy, politics, judicature, etc. On the other hand, the plebeians, although shouldered heavy military missions, did not enjoy corresponding political and judicial power. As a result, the plebeian army threatened for many times to retreat from Rome and the compromise thus achieved between the nobles and the plebeians brought about the noble-plebeian Republic. The judicial power of the freeman's assembly and other freeman's meetings was established to counterbalance the power of the archons and to protect the rights of the plebeians. At the later phase of the Republic, with the declining of the small-holding system and due to other economic reasons, the plebeians depended on the rich classes, leading at last to the corruption of the freeman's assembly; at the same time, the need of way raised the prestige and power of the Curia while the knights also raised their position by their participation in the construction for public use and enjoyed as a result a parallel power with the patriarchs. Thus the patriarchs and the knights formed the jury to preside over the trials of corruption, etc. and this entails the formation of the system of the criminal jury system and the decline of the judicature by the freeman's assembly. Later, with the appearance of the military dictatorship and the despotism, professional judges appeared and the judicature by the freeman's assembly and the jury system came to an end.Chapter two dwells on the investigation and analysis of the historical causes of the reforms and changes of the jury system of Great Britain and the US. In Britain, at the end of the 12th century, the king performed judicial reform with the aim to weakening the jurisdiction of the church courts and the laird courts, and as a result, the civil and criminal jury systems were established. The jury, representing the public will, would not yield to the king's will and the principle of"trial by peers"was welcomed by the nobles as well as the freemen. After the 13th century, the nobles forced the king in the Magna Carta to establish the jury system of the nobles and the freemen as a means to regulate the king's power and to protect the nobles'safety and their property rights. In the Glorious Revolution in the 17th century, the jury system was again established in the Bill of Rights against the rule and the feudal rule as well as for the development of capitalism. The jury members were independent and they became the guardian of justice in Britain. Due to the rigidity of the common law proceedings and the judicial system, the high cost of lawsuit and the lack of efficiency, which all seriously hindered the further development of capitalism, the judicial reform has been ushered in since the 1930s. Centralism and interventionism were practiced and equity procedures were introduced in legal proceedings hence the strengthening of the control of professional judges over court trials; as a result, the jury system, as an important part of the legal proceedings declined gradually. In the 20th century, with the development of the welfare states, states exerted overall intervention and control over national politics, economy and judicature to provide necessary safeguard for people's liberty, rendering the jury system redundant.In America, the jury system played an crucial role in its struggle against the English colonization and in its protection of people's interests, therefore, it found its way to the Constitution as a precaution against governmental repression. Shortly after this, the jury system gradually declined as a result of their ruling of the overtly high compensation of the corporations for individuals for these rulings were against the aim of the judges and legislators to protect business interests and to further the development of US economy. Therefore, from the early years of the 19th century to the 30s of the 20th century, legislators and judges endeavored to limit the power of the jury via legislation and prejudications and the judges also managed to control the jury. In the 40s, in order to improve judicial efficiency, lower the costs and solve the problem of the explosion of lawsuits, many other principles were also adopted to limit, steer clear of and downplay the jury. The jury system as a result was further diminished. However, the control and supervision of the social development by the welfare states violated the right to freedom of the public and citizens began to fear the centralist state. The federal courts started to pay attention to the relationship between the public and the state and the range of application of the jury system was widened and people's right to a trial with jury was promoted, hence the confirmation of the jury system.Chapter three concerns itself with the investigation and analysis of the reforms and changes of the jury system in Germany and France. The old time monarchy and the inquiry system made people suffer severe injustice and therefore in the revolutionary periods, the jury system was established in France in 1791 for the prevention of restoration and the protection of people's rights. During Napoleon's reign the jury system was damaged due to the focus on the attack of crimes, the social control and the strengthening of legal procedures. The means used were things like the assumption of the president of the jury by the judge, the avoidance of the jury in some special cases with some special criminals (like bandits) involved. As a result, the power of the jury was diminished. After the coming into power of Napoleon, he issued Code of Serious Crimes in 1808 to strengthen his control over society and the appealing jury was completely abolished and only the jury of courts presiding serious cases was preserved. Although in its diminished form, this jury system was still part of democratic institutions. After the overthrowing of the restoration of the Bourbon Dynasty, the Second Empire and the Third Republic fostered nationalism and people's conception of freedom and equality was also boosted. They proposed to contain governmental power and to widen democracy thus the spreading of the power of the jury in cased concerning press censorship. At the end of the Third Republic, the strengthening of state's interventionism and of the authority of criminal courts reduced the protection of individual freedom and the power of the independent cognizance of facts by the jury was abolished and as much so the jury system evolved into the system of participation in the trials. After World War Two, this system was retained though the number of the jury members was increased.In the first half of the 19th century, influenced by the French revolution and the English constitutionalism, Germany witnessed the surging up of the nationalism and liberalism. The Bourgeoisie demanded its right to the jury system and other political rights. After the Revolution in 1848, the jury system and the system of participation in trials were established. After the union of Germany, the central government was strengthened and state interventionism was practiced. The tightening up of the control over judicature and the pursuit as the highest aim of the national and public interests endangered the jury system. While on the other hand, the capitalists claimed to retain the jury system. As a compromise, the jury system and the system of the participation of trials were both maintained. After World War One, the judicature tended to be Right-leaning and the jury system was not successful in its attack against the right-wing crimes. After the coming into office of the conservative power, the jury system was abolished in the year 1924 while the system of the participation of the trials was maintained. The Nazi regime abolished the system of participation completely. After the Second World War, democracy was restored in Germany and so was the system of participation as a result of its attention on the rule of law, democracy, etc.Chapter four is mainly concerned with the investigation and carding of the experiences of the reforms and changes of the jury system with the bearing of conceptions like judicial democracy and the regulation of power by the jury system as a focus. In ancient Athens and Rome, the direct democracy enabled all the citizens to participate directly in the judicature and this is undoubtedly the embodiment of judicial democracy. The jury system or the system of participation in the trials in Britain, US, France and Germany enabled the public to participate in the trials together with the professional judges and this was certainly also a manifestation of social justice. What is more encouraging is the fact that the requirements and range of the jury members are also lowered and widened respectively. The jury system and its transformation (total abolition excluded) also revealed the idea of the constraint of power. The cooperative exertion of the judicial power by the jury and the professional judges is also a manifestation of the balance of power between the two parties and this approach can avoid the abuse of power by either party and the violation of civil rights and public power by both parties.Chapter five is a prediction of the future development of the jury system. First, with the analysis of the relationship between the jury system, judicial justice, judicial efficiency and judicial cost as a basis, it is found that different times have different criteria of judgment. With the prosperity of democracy, the jury system will be viewed as helpful to judicial justice and efficiency while during the time of centralization and despotism, it will on the contrary be criticized. Second, the analysis of judicial democratization and judicial professionalization finds that the jury system has a close bearing with the decentralization of state power and the development of state institutions. At the early age of the Middle Ages, with the decentralization of state power, the incompleteness of state institutions, the unprofessional judicial systems, it is necessary to rely on democratic participation for trials, while in times of monarchy, with the polarization of power, the specialization of judicature, judicial professionalization prevails. Some counties witness the judicial professionalization due to their entry into the monopoly capitalism and the appearance of welfare states and the professionalization of state institutions. With the above analysis as a basis, it is proposed that the rebuilding of our jury system should have as its aim the protection of people's rights, and as its institutional ideal judicial democracy and the constraint of power.In conclusion, the ups and downs of the jury system correspond to the rising and waning of democracy, centralism or despotism. The reforms and changes of the jury system have upon its back the conception of judicial democracy and the constraint of power. The legislation concerning the jury system should accord with the aims of law and the requirements of justice. The adoption and rejection of the jury system should take into consideration many factors such as politics, economy, society, etc. |
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