Jury System

There are two main patterns of lay participation in the world. The first one is the mode of lay judge, and under this mode, the cases are heard by non-professional judges directly. For instance, the system of judge of peace in England and Italy, also the judge of proximity system in France, etc. The seconde pattern is the mode of jury, which means the lay judges and the professional judges work together to hear the cases, to cooperate as well as dividing the works in the trial until the final decision have been made. Although the latter has been doubted and criticised in the history, the mode of jury has become an important system to protect the fundamental rights of citizens and to guarantee the judicial democracy in most of the countries and has penetrated into their judicial systems.In recent years, the traditionnal mode of Jury has been introduced in Russia(1993) and Spain(1995), therefore, the academy pays more attention on this old system. The reasons are as follows: on one side, according to the general opinion hold bythe academy, the conventional mode of Jury has become weaker and weaker, as well as its legitimacy. In this situation, the reforme of sytem of Jury in Russia and Spain goes against the stream. Thus, we should figure out that the reform is whether "a great revival" orjust "a flash in the pan"; on the other side, as two of the civil-law countries, could Russia and Spain handle this system successfully, and make the system be a new developping trend as once happened in the french revolution in 18th century? Because of this situation, the international criminal procedural law academy did a lot of research on the system of Jury. Nevertheless, in China, there is very few works towards the system even in the present time of modification of the criminal procedural law. We know that some scholars have misapprehended the system of jury especially the system of assessor of civil-law countries, and what's worse is that this misapprehension is misleading the reform of people assessor system in China. Therefore, I decided to take this issue as my subject of thesis.There are five chapters in this thesis. The first chapter is about the appearance and the worldwide developpement of the system of Jury. In the perspective of history, this chapter put emphases on the origin and the rudiment of system of Jury in England, as well as the spreading and the development in British colonies and the European continent. Thereinto, the author tries to give some original and unique opinions on certain important questions of system of Jury, such as the dispute of its origin, the reasons of its diverse devolopping trend in different colonies and whether its transplantation in France a success, etc. From the second chapitre to the forth one, the author makes a comprehensive analysis towards the system of Jury in the aspect of value, institution and technique. What's more, the second chapter aims to indicate the legitimacy of the system of Jury. According to the author, there are four main bases of its legitimacy: the embodiment of people sovereignty, the humeri of freedom, the effective institution for judicial sincerity as well as the bridge between the justice and society. In this thesis, the controversy that whether the system of Jury is embodiment of people sovereignty, the dispute the "over-mercy"of the jury, and the conflit between the "judicial sincerity" and the "1 imite of judicial resources" have all been explained by the author. The third chapter is the "institutional obstacle of the system of Jury". The author holds the view that the soul of system of Jury is not from the pure judicial opinions, but from certain polical or social credendum. Therfore, the intrinsic conflicts or potential Conflicts between the system of Jury and the basic principles of criminal procedure is inevitable, and so that, the intrinsic logic of proceeding as well as the academic basis of system of Jury woule be destroyed potentially. The author names all the problems as the obstacles of system. In this chapter, the core content is about the conflits between the system of Jury and the system of appeal, as well as the collision between the system of Jury and the institution of ratio decidendi, and hence, the author introduces and compares the concerted institution of different countries and also gives some comments on it. This view is very original and unique in present academy, almost no scholar have mentioned it. The forth chapter is the technic design of the system of Jury. In this chapter, the author did some detailed research on the countries of traditional system of Jury, such as England and America, and on the countries of assessor system, such as France and Germany; as well, on the latest lay participation system which has been introduced to Russia and Spain. Besides, the author also introduce the "system of Jury of different forms" which means the system doesn't belong to the people Jury system but has some technical characters, including the techinical Jury and the special Jury, so as to clarify some misunderstandings in Chinese academy. The fifth chapter is the "the reconstruction of Jury and the reform of chinese criminal procedure". In this chapter, the author analyses the present legislative and academic situation of chinese people jury system, and indicates the necessity of its being and modification as well as the potential obstacles in the way of reform. On the basis, the author provides two original versions of jury and assessor in order to accelerate the modernization process of chinese criminal procedure.Doctor William Roumier has said, "The system of Jury is a very antiquated subjet" , yet lots of important questions have not been well explained. nevertheless, "we are oriented to take the system of Jury as a truth which don't need to proved, and take it as constitutional or social doctrine". M. Foucault wrote to himself in "The Archeology of Knowledge": "I try myself to make people see what we couldn't see just because it is always there." , and the author aims to make people understand what we couldn't understand just because it is always there.