Way to Judicial Betterment

A national debate over some principal aspects of the ongoing judicial reform

By WU WENHE

TRIAL HEARING: Jurors with professional training begin work

The effort to perfect a jury system was listed as one of the important elements of the Supreme People’s Court’s five-year reform plan of the nation’s judicial system, according to Chen Weidong, who participated in the drafting of the National People’s Congress reform initiative, which became effective May 1.

Since the new rules went into effect, there has been a nationwide debate over some of its provisions and questions of how to further perfect the jury system.

Is the Requirement of Education Level Reasonable?

According to the new rules, to be a juror, one should have received at least a tertiary education.

Shen Yongde, President of the People’s Supreme Court, explained that a juror must meet certain basic requirements, especially in education, or he/she will not be able to deal with cases well due to the limits of knowledge.

Chen Yongsheng, associate professor at the Law School of Peking University, holds a different view. He believes it is unfair to keep those who have not received high education out of the pool of jurors. In his opinion, such an “elite route” may lead to an inclination of judicial unfairness, as people in different social classes have different values and criteria, and it would be much easier for those with similar educational backgrounds and social status to reach mutual agreement.

For instance, Chen said, if a rural worker stole from a white collar in the city because he could not find a job or had not been paid at the due time, he would be brought to court. An educated juror who has not tasted the hardship of rural life, or who is unfamiliar with the family condition of the rural worker and his difficulties in surviving in the city, might be stricter in making a decision.

Chen added that there are no educational limits on the qualification of jurors in other countries. When people from different social strata and different educational backgrounds and values form a jury, they can reach a balanced decision through debate and communication, which helps to avoid an “unfair justice” that could be the result from the lack of understanding or empathy for different social classes.

The opinions of judges on education requirements also differ. Li Yongjin, a judge of the Beijing No.2 Intermediate People’s Court, is not in favor of the education requirement. In his view, a juror does not need a high educational level, and it will be enough if he or she has disposing capacity. He holds that a juror can make his or her own judgments based on his or her social experiences, which could complement the professional and rational judgment of judges.

VESTED WITH POWER: Newly appointed jurors are given certificates from the state

Judge Zhang Minghua at the Beijing No.1 Intermediate People’s Court agrees with the education requirement. He said that it is necessary for China to set limits on educational levels because of the current status quo of the nation, and any conclusion based on a simple comparison with other countries is not suitable to China. According to Zhang, in some Western countries, the jurors are not responsible for applying the law in a verdict. While in China, jurors that participate in the trial would be in charge of applying the law. So, jurors in China need to have certain knowledge and capabilities. Zhang further explained that in some countries, jurors only participate in the trial of criminal cases, not in civil or economic cases. While in China, jurors participate in all kinds of cases. In terms of civil or economic cases, jurors need to have some professional knowledge, according to Zhang. So, people who have had higher education will have an advantage.

Juror Duan Lian echoed Zhang’s opinion. She said, based on her own experience, she felt that if a juror had no professional knowledge, he or she might find it difficult to understand the whole matter. “Although a juror could not be professional in every field, those with higher educational levels will be faster at learning than others,” she added.

Is a One-Third Standard Enough?

The new rules state that when jurors and judges of the court form a trial panel, the number of jurors should be no less than one-third of the panel.

This matter concerns Peking University’s Chen Yongsheng. He said the judge might be inclined to form a composite panel composed of only three persons: the chief judge, a judge and a juror. In this case, as the two judges are colleagues, they are very likely to reach an “alliance,” and so their opinion may have strong influence on the decision of the juror, who is less experienced in law. Even if the juror cannot be influenced, according to the principle that the majority view shall prevail, the will of judges would dominate.

Chen further said that although the new legal reforms stipulate that if there is a divergence of opinion, jurors have the right to require the composite panel to bring the case to the president of court to decide whether to submit the case to the Trial Committee, such situations would be rare in actual practices.

Chen said that the reality is that judges may feel that they are superior to jurors in their legal knowledge and trial experience. Even the jurors themselves might have the same feeling. So, in most cases, even if jurors have some doubts about the verdict of a case, they would not be willing to voice their opinions. In another situation, he added, even if a juror stands by his or her own judgment, he or she will be waiting a long time for a settlement. According to the rules of court, if any dispute occurs in the composite panel, the presiding judge should first handle the case, and if it is still unresolved, the case will be submitted to the president of court, and then to the Trial Committee if it continues to be unresolved.

According to a media investigation, currently, the composite panel with two judges and one juror is still very common in China.

Beijing No.1 Intermediate People’s Court’s Judge Zhang Minghua gave his view about another situation that involves a composite panel of one judge and two jurors. Under this situation, he said, the judge will face high pressure. “When the opinion of the judge is at odds with those of the jurors, the measurement of the penalty will be up to the opinion of jurors,” he said. “But if in the future, the case is nullified by the higher court or proved to be a misjudged case, the one who is responsible is the judge, not the jurors.”

Zhang noted that if the case is proved to be a misjudgment, the judge will not only suffer the blame but his or her promotion might be hampered or it might even result in administrative punishment or criminal or civil responsibility. However, there are no provisions concerning the responsibility of jurors in a misjudgment, he said.

The new rules stipulate that jurors who make misjudgement or violate related laws and regulations should be removed from the juror position. It also states that if jurors are proven guilty of wrongdoing, they should take criminal responsibility. But Zhang said the provisions are too vague. Usually, a juror’s insistence on his or her opinion will not break the law or any regulations, nor would it be considered malpractice. So, the punishment to a juror for a misjudged case will not be any heavier than the loss of a part-time job as a juror.

“In this sense,” Zhang said, “jurors and judges enjoy the same rights, but shoulder different responsibilities, and these differences may lead to many problems.”

Chen Ruihua, another law professor at Peking University, has similar concerns. Jurors are not professionals in law, after all, so if they become too insistent on their opinions, it may result in an “abuse of law.”

Is There Corruption Among Jurors?

Quite a few people think that since jurors have the same power at trials as judges, and because they are not formally employed in the judicial system, it could lead to the possibility of corruption due to a lack of effective supervision.

Under the current jury system of China, it is stipulated that the people’s court should publish the names of jurors, which is different from the practice in some other countries where the names of jurors are concealed. But the negative effect of publicizing juror names could be larger than the positive effects.

Chen Yongsheng from Peking University said that the five-year term for jurors is too long. Five years may allow many to flaunt their status as jurors and may open the door for jurors to establish close relationships with the court.

But juror Ge Yanqing argued that it is hard for any party of a lawsuit to influence jurors to affect the trial of a case. First of all, she said, the jurors are chosen at random, so the parties in a lawsuit will not know in advance who the jurors will be. Secondly, although the names of jurors are published, the way to contact them is unknown to the public. And besides, she said, jurors are required to abide by the requirements of the judges, and if they violate the law, they will also be punished. In addition, in the case of a three-person composite panel, if a juror is influenced, he or she still only has one-third of the vote. Ge added that the jury system provides another system of checks and balances in the judicial system, and it will reduce the possibility of judicial corruption.

He Jiahong, professor at the School of Law of Renmin University of China, suggested that to prevent the corruption of jurors more effectively, the jury system should be more complete and practical. He suggested greatly increasing the number of jurors in court and choosing jurors randomly. At the same time, the number of cases that jurors participate in should be limited. Thus, he said, the independence of jurors can be better ensured.