Reflection And Prospect Of Japanese Referee System

In Japan the third judicial reform has been under way since Meiji Restoration. A new system, called saiban-in system in Japanese language, was designed for citizens to participate in justice. The fate of the newborn baby is attracting more and more attentions, however, has trapped into intense controversies and debates meanwhile. In this article, I will introduce some basic information of the system, comment on some debates and at last advance my own hypothesis.This article begins with some reviews of the old jury system in Taisho period in history. After Meiji Restoration a lot of modern laws were introduced into Japan, including criminal procedure law, moreover, under the influence of the idea of Democracy, the jury system was set up. Unfortunately, its implementation situation was not as good as expected and finally it was suspended in 1943. Most authors attributed its failure to the following factors: democratic government was replaced by fascist regime; there were inherent defects in the system; the sense of people and judicial cultures were against the system. These factors should be considered when predicting the future of the saiban-in system.The reason for why Japanese introduced saiban-in system rather than any other similar systems was that current judicial system was troubled with kinds of problems, including the adverse effects brought about by"Precise Justice", the negative impact of tried by judge merely and some other related problems. Therefore, I compare current judicial situation to the"darkness before dawn".The saiban-in system was designed in 2004 and had been put into effect in May, 2009. To learn more details of the system, I introduce some basic background information and debates when the Saiban-in Act was being drafted. Afterwards, according to the structure of the act, I comment on some important elements of the system, such as its applicable scope, makeup of the panel, rights of the judges and saiban-ins, deliberation and vote process. Based on the elements above, I make some brief comparison between the newborn system and the American jury system.In the following section, I focus on five parts of system which are full of concentrated debates. Whether the qualification requirements are too strict? Whether the selection process is too complex? Whether the number of peremptory challenges is excessive? Whether it is reasonable to force the defendants to be tried by this new system without any choice? Whether it is fair and proper that the judge both take part in the pre-trial and trial process? These questions are inherent in the system and need to be discussed further.Besides the intrinsic defects, there are also many problems outside of the system. They are more important in the term of its social effects. Because if people are reluctant to participate in this system, or can not perform this obligation independently, how we can conclude that saiban-in system has lived up to the expectations of its framers? But who are concerned about its social effects most? Definitely its framers are. Consequently, many kinds of poll survey have been done since 2004 in which year the act was passed. I've gleaned three years'information based upon which many hot issues turn up. The first and foremost one is that many people's daily schedules would be disturbed if they have to be involved in trials for a couple of days. To reduce the adverse impact resulted from the problem above, framers have prompted many related innovations, such as providing economic subsidy to saiban-ins.The next part will refer to the"Opinion Leader"Theory put forward by American professor Lester Kiss which I use to discuss the question: whether saiban-ins could perform their obligations independently? Above all, I analyze the three ideas of the group deliberation, including independence and equality, sharing the information and rational illustration. According to the"Opinion Leader"Theory, saiban-ins are prone to be dominated by authority, consequently, judges are required to be self-restraint and help saiban-ins to exercise their rights properly.In addition, the sense of hierarchy, harmonious culture and respect to the authority are all traditional obstacles to the judicial system. As to the saiban-in system , the three factors should never be neglected if it wants to go further.In the end, I give my hypothesis that this new system will be a success in future. The entire context above-mentioned could be seen as supportive demonstrations, and what's more, having consulted Professor Jearey's theory, I enhance my judgment. In his theory, the three decisive factors relevant to the failure or success of jury system are social homogeneity, education level and recognition of the system. To be specific, Japanese are nearly of the same race and the education level has been greatly advanced since 1960s; if framers can make more and more people recognize the new system, it will satisfy the three requirements in future. Accordingly, I conclude once again that the saiban-in system will achieve success.