Study Of The Juror's Participation In The Fact-finding Of Civil Cases

The participation of jurors in a trial is of secondary importance in the civil justice system,but the participation of laymen remains an enduring topic.The structure of the fact-finding in civil cases is consist of subject,object,basis,path and standard.Fact-finding is a kind of the litigation behavior,which should be taken into account with the litigation subject and the judicial proceedings.The internal connection between the trial subject and the fact-finding is embodied as a "subject-behavior" analysis path.The subject setting should be conducive to the rationalization of the behavior and the co-adaptation of the behavior pattern and the subject,which is the fundamental principle of the juror's participation in the fact-findings of the civil cases.The jury system of china originated in the “ Draft of the criminal and civil common rules of Qing Dynasty ”.Before the founding of the People's Republic of China,the practice was mainly focused on the people's jury system during the new-democratic era.People's jury system becomes an isolated system and the operation effect is not good because that we just introduced the people's jury system but not the free evaluation of evidence,pretrial preparation,uninterrupted trial and other related systems into our country from the former Soviet Union at the beginning of the founding the People's Republic of China.In the last decade,the system of people's jurors has shown a tendency of recovery,but the problem of without trial is a lingering question.The decision of the Fourth Plenary Session of the 18 th Central Committee of the Communist Party of China has made the reform path that the jurors are mainly responsible for the fact-findings.The purpose of the reformation is to solve the problem of "accompany without trial",which has shown the characteristics of the blending of the civil trial system and the jury system.It found that the problem of "accompany without trial" has not been solved effectively after the practical investigation of the pilot reform courts.Moreover,the problems of administerization,blind expansion of the scope of application and so on have emerged,too.The people's jury system should be further improved is necessary and the mechanism of the jurors' participation in the fact-finding which conforms to the legal system and the national conditions of china is still need to be shaped.The participation of laymen in a trial is not the unique local knowledge in our country but it has a certain universality and considerable variety in the world.The dual structuresystem of the courtroom is the important symbol of the litigation system of common law system,which determines the basic logic of the civil procedure of the civil litigation of common law.The history of the civil jury system in common law system is a development history of trust and distrust,protection and restraint of the jury,forming the restraint mechanism of the jury's fact-finding authority which includes the exclusion mechanism of the jury's fact-finding authority,re-trial mechanism by juries,directive mechanism by judges and the rules of evidence.According to the common view,the civil procedure of the civil law system implements the professional judge system,while the commercial acts of the German State Courts and some specialized courts such as the labor courts and the farming lease courts of Germany,France,Sweden,Belgium,Norway and other countries implement the Civil Participation System.Moreover,some local regions apply the standard configuration which does not change the professional judge trial of the civil procedure of the civil law system.The former Soviet Union implement the people's jury system,which is regarded as a powerful weapon for the discovery of the case facts and according with the fact-finding structure of Soviet-style civil cases.There exists great difference and the common rules of the above-mentioned three kinds of fact-finding styles.The common rules are: to be placed in the procedural structure for consideration,free evaluation of evidence,focusing on the interaction between judges and jurors,the juror's fact-finding authority is limited to the Substantial judgment;participation in the professional fact-finding becomes a new direction and so on.The common rules are largely derived from the integration of the human cognitive rules and the civil litigation logic.The significance of the jury system to the rationalization of the fact-finding is not the empty expression of the public knowledge and the life experience's integration into the trial.It should be analyzed subtly of how the juror's common sense is blended in the civil procedure and considered concretely from the application of the rule of thumb in fact-finding,the rationalization of the evaluation of the overall situation of the debate,the rationalization of the degree of proof,the supplementation of the professional knowledge,the rationalization of the fact-finding of public cases and so on.In particular,the judgment of the rule of thumb,the overall situation of the debate and the degree of proof are not only the great place of the free evaluation of evidence but also the abuse of the free evaluation of evidence.The problem of the abuse of the free evaluation of evidence will lead to the improper fact-finding,which can be solved to a certain extent by the participation of jurors in a trial.Of course,the complicatedprocedure,the doubt of the fact-finding ability,the deficiency of the collegiate system and the empty of the value of judicial democracy are negative factors which influenced the participation of the jurors in a trial.The institutional competitive relationships of the amicus curiae,the judicial investigator,the specialized committee,the expert testing system and the jurors' participation in the fact-finding have made influence on the selection and the application of the system.The conclusion is not to abolish but to standardize the scope of application,set up the centralized and efficient procedures and to minimize the procedural and the time cost after comparing the positive and negative factors of the juror's participation in the fact-finding.The development of the juror's participation in the fact-finding is not fast-developing but presents a "bad but not fall" state,which specifically embodied in the prudent application.Participating in the fact-finding with all aspects of the whole process violates the cognitive rules of jurors,which should take a modest way to participate in the trial according to their cognitive rules.In the scope of the juror's participation in a trial,it is limited to the compulsory application of the public interest litigation,selective application of public private interest litigation and professional cases and exceptional application of the conventional cases.In the stage of the juror's participation in a trial,the jurors are limited to participate in the trial proceedings not the pretrial process.Jurors' authorities are limited to the substantive judgments except the authority of command in litigation,decision-making power of the evidence adoption and the right to investigate and obtain evidences;By reference of the proof of action,the scope of the juror's fact-finding is limited to the proof of litigation and does not apply to the judicial cognition;limited to the strict proof and does not apply to the free proof;limited to the proof and does not apply to the interpretation;limited to the evaluation of the weight of proof and does not apply to the judgment of the evidence ability;limited to the major facts and indirect facts and does not apply to the ancillary facts.Factual and legal issues are unavoidable issues for the participation of jurors in a trial.The factual and legal issues of the common law system are a kind of distinctive and intertwined state.There is a conflict between law-proceeding civil procedure of the civil law system and the division theory.This paper is attempt to determine the minimum of the question of fact and the question of law from the narrowest defined factual problems and the discretionary mixing problem of the cognition law of referee subject and the referee object,such as the direct perception of the matter,the retrospective reflection of a small premise,the non-legal evaluation of the factual judgments.The effect of such efforts may be extremelylimited,and the more effective path is not limited to the distinction between the question of fact and the question of law.From the corresponding relationship between the factum probandum and the cognition rules of the subject,the author is attempt to simplify the“three-step mode”,the“comparative analysis of whether the matter is appropriate for a judge or a juror-to determine which subject is more appropriate to hear – to determine the question of fact or the legal issues according to the subject ” to the “two-step mode”,that is“ comparative analysis of whether the matter is appropriate for a judge or a juror-to determine which subject is more appropriate to hear”.The author is trying to focus on the function of the jurors' cognitive rules,not the distinction between the question of fact and the question of law.As to the initiatedmethod of how the jurors can participate in the fact-finding of a trial,the author integrates the types of cases that the jurors are involved in and establishes the initiated mechanism of “mainly upon the application of the parties + partially upon the authorities of the judges”.In principle,the pre-trial process should be a necessary stage when the jurors participate in a trial and the professional judges will sort out the controversy and investigate the documentary evidences and other non-witness evidences in the pre-trial process.The trial should be concentrated and swift.The judge and the juror will conduct a joint evidence investigation of witnesses,listen to the debate of the results of the evidence investigation by two parties,and form a mixed conviction on the basis of sorting out the evidence investigation and the results of the debates.The publicity of judge's mental impression should be emphasized in this process.The review stage should focus on the protection of the jurors' right to review so as to make the jurors and judges balanced as a whole.With reference to the judge instruction and the problem list of the common law system,the judge instruction system in accordance with China's reality should be established,which includes the stage,initiation,content,effectiveness and the relief.When the majority opinions of jurors are conflicted with the minority opinions of judges and seriously affect the reasonability of the facts,it should be solved by a more democratic and authoritative and professional way.In order to make the jurors exercise the authority of fact-finding effectively,in addition to the optimized build of the system of assessor,the supporting systems,such as the materialization of allegation of fact,the lawyers' compulsory agency system,the reasoning of the civil judgments,the collegiate system,the selection of jurors,the professionalization of judges and so on,should be established.This paper includes the introduction and six chapters.The introduction mainly discusses the research reason,the basic standpoint,the basic category,the research methods and so on.The first chapter is the Chinese practice of the juror's participation in the fact-finding of civil cases.This chapter deals with the literal reviews and analysis of the jury system of the Period of Republic of China,the system of people's jurors and the jurors' authorities in the period before and after the founding of the People's Republic of China.It focuses on the empirical investigation and the analysis evaluation of the reform of the authority of people's jurors and the pilot court situation in the context of deepening the judicial system reform.The second chapter is a comparative study of the juror's participation in the fact-finding of civil cases.This chapter analyzes the individual and common rules of the three kinds of fact-finding patterns which are civil jury system of the common law system,the juror's participation in the civil procedure of civil law system and the people's jury system in the former Soviet Union and East Europe.The third chapter is the system value of the juror's participation in the civil fact-finding.It demonstrates the role of the jurors' participation in the rationalization of the fact-finding,analyzes the negative effects and makes responses as objective as possible,and studies the relationship of the jurors' participation in a trial,the amicus curiae and some other related systems.The fourth chapter is the basic framework of the juror's participation in the civil fact-finding.On the basis of the previous three chapters,this paper studies the development orientation of the juror's participation in the civil fact-finding in China,discusses the factors that need to be taken into account in the selection of patterns,puts forward the basic idea of the limited application and demonstrates it,studies the distinction obstacles and the solution pathsof the factual and legal issues derived from the juror's participation in the civil fact-finding.Chapter 5 is the specific operation of the juror's participation in the civil fact-finding.It explores the concrete process from four aspects:initiation,preparation,trial and appraisal procedure,and systematically constructs the judge's instructions to the jurors,and explores the solution paths to solve the conflict between the jurors and the judges.Chapter 6 is the supporting system for guaranteeing the juror's participation in the civil fact-finding.