Analysis On The Problem Of “Accompanying Rather Than Trying” Under The Pilot Reform Of People’s Assessor System

The People’s Assessor System of China,a product of the eastward transmission of western sciences,to this day has developed into a relatively rounded system.However,due to the influence of various factorsin judicial practices,the people’s assessors merely accompany rather than try in most cases,which has become the most serious shackle confronted by the system.Fortunately,the two-year Pilot Reform of People’s Assessor System which wasformally launched in 2015 is under way.Among series of reforming requirements and corresponding rules for its implementation,some directed at the problem of “accompanying rather than trying” are also included.Under such background,this paper first aims to find out the crux of “accompanying rather than trying”,then combining the Pilot Reform,to review its countermeasures targeted at the problem and analyze its inadequacy or defect,and last,from the perspective of making up for the inadequacy or defect,to discuss how to break the shackle of “accompanying rather than trying” and further perfect People’s Assessor System.This paper consists of six parts as the following.The first part,Introduction,represents the background of the topic,then summarizes the research status at home and abroad in regard to the jury or assessor system,focusing on the juror or assessor’s right of speech,the separation between finding of the fact and finding of the law,the practicing dilemma of accompanying rather than trying,and etc.,and next talks about the methodology,purpose and significance of this research.The second part,a study of People’s Assessor System employing the theories of Forensic Linguistics.It first introduces the origin and evolution of the Chinese word“陪审”(peishen),and makes a contrast between the semantic connotations of Chinese“assessor”and Western“jury/juror”in the context of law(here“Western”refers to common law systems as explained in the main body),the differences being:first,Chinese assessors,or rather,play a role of coadjutant,while the jurors themselves preside the finding of the fact;second,before this pilot reform,Chinese assessors participate in both of finding of the fact and finding of the law,while jurors are only responsible for the finding of the law;third,Chinese assessors voice their opinions in their own name,while jurors declare themselves in the name of the jury.It then finds out the linguistic problems contained in the legal documents related to People’s Assessor System,mainly including semantic fuzziness,semantic ambiguity and stylistic impropriety.Next,begun with the concept of“the gradability of courtroom speech power”,it briefly evaluates and comments on people’s assessors’right of speech in the courtroom and the panel discussion,from the perspectives of its ideal judicial significance,exercising patterns and effect factors.Thus,this part,on one hand,is intended to define the value orientation of People’s Assessor System,which is to raise judicial efficiency,advance judicial democracy,facilitate judicial fairness and promote judicial credibility with the participation of assessors;and on the other hand,to elicit the most serious problem of“accompanying rather than trying”in judicial practice.The third part,an analysis of “accompanying rather than trying”.It first introduces the meaning and manifestation of “accompanying rather than trying” in a broad sense,that is,in addition to little and even no speech in the courtroom,the assessor often do not go over the case files or investigate the case details before the trial,do not voice their opinions or simply concur with the judges in panel discussion,and are only required to sign on the final judgment paper with no opinions embodied in it.It then explores the causes of the problem,mainly including the deficiency of assessors’ right of speech,the under-reasonable selection and appointment of assessors,no exact separation between finding of the fact and finding of the law which covers the assessors’ advantages while exposing their disadvantages,the inadequate professional training and judicial guidance which leads to their insufficient duty ability,the incomplete responsibility assigning mechanism and right guarantee system,and the low degree of social recognition and emphasis of People’s Assessor System,and etc.The fourth part,an analysis of the Pilot Reform under implementation.First,according to The Plan for the Pilot Reform of People’s Assessor System and Measures for the Implementation of the Pilot Reform of People’s Assessor System,it reviews the reforming requirements and specific rules targeted at “accompanying rather than trying”,which include: adjusting the selection and appointment of assessors in the aspects of age and education standard,expanding the scope of the cases that assessors can participate,explicating the function and power of assessors in all different stages,pointing out that assessors are only responsible for the finding of the fact,requiring the enhancement of professional training and judicial guidance,further completing the mechanism of punishment and protection,and etc.The great efforts that the pilot reform has dedicated to solving the problem of “accompanying rather than trying” can never be neglected and will necessarily exert positive effects in practice.However,we should also pay attention to its deficiencies in two aspects,one is the lack of key point,that is,the exact separation of finding of the fact and finding of the law remains to be underlined;the other is that the reform is not fully comprehensive,for example,the linguistic problem in some documents remains to be corrected,the selection and appointment of assessors is not differentiated in type according to different cases,the assessment of assessors’ duty ability remains to be more strict,the valuable opinions of assessors are not required of inclusion in the judgment paper,the social propaganda of the System still needs more efforts,and etc.The fifth part,combined with the causes and directed at the inadequacy as analyzed before,exerts efforts to discuss how to break the shackle of “accompanying rather than trying” thoroughly.First of all,in the further deepening reform,the separation of finding of the fact and finding of the law shall be highlighted.On one hand,assessors’ function and power of finding the fact should be explicated in different stages.A written and legally binding system specially about the finding of the fact should be formed and implemented.On the other hand,in the stage of panel discussion,the fact of the case and the application of the law should be discussed separately.Assessors should voice their opinions about the finding of the fact not subject to the judges;they can also voice their opinions about the law,but it is still the judges that finally find the law.Second,the other links from documentary standardization to social propaganda should all match up with the aforementioned key point.Specifically speaking,the documents conflicting with the pilot reform should be abolished and the People’s Assessor System should be speculated in the Constitution,the assessors should be selected and appointed according to the type and feature of different cases,professional training should be carried out to help the assessors perform better in the trial,supervision and management of the assessors should be enhanced through,for instance,establishing a specialized regulatory agency,and a planned social propaganda should be emphasized to promote social recognition and trust of the System,and etc.The sixth part is the Conclusion.Besides reviewing and summarizing the content of the whole paper,it also recognizes the shortcomings of this research and puts forward a few suggestions for further research.As an important component of the litigation system and even the whole judicial system,the perfection of People’s Assessor System is essential to China’s construction of socialist rule of law.Therefore,the problem of “accompanying rather than trying” is badly in need of solution.This paper just serves as a modest spur,in hope to more practical and effective proposals.