China’s New Law for Its Jury System
Updated: Feb 6, 2019
The new law addresses the formalistic nature of the jury system implemented in the past and attempts to improve the juror’s quality and participation in qualified case.
China has been experimenting with its judicial reform with the purpose to produce fairer and more efficient judicial remedies through improved due process for case hearing, better quality of judges and fine-tuned judicative mechanism under the existing judicial infrastructure. In addition to other reforms progressively introduced to the judicial practice, recently China issued a new law to improve its jury system in judicial proceedings. The new law addresses the formalistic nature of the jury system implemented in the past and attempts to improve the juror’s quality and participation in qualified case. Here are some basic points for China’s new jury system:
Juror qualification. Conditions to become a candidate of juror:
Chinese citizen; More than 28 years old; At least high school graduated; Impartial, upright and good citizen; Physical fitness capable to perform duties.
People who can’t be jurors due to their existing governmental duties:
Incumbent members of standing committee of the congress, personnel in supervision committee, court, procurator, police office, national security agency and judicial department; Lawyer, notary, arbitrator and grassroot legal personnel; Others who can’t be jurors due to their existing duties.
The law prohibits following people from becoming jurors:
Who have committed crime; Who have been expelled from the governmental agencies; Lawyers, notaries whose license have been revoked; Who are subject to judgment enforcement*;Jurors who have been fined or discharged; Others who have seriously violated laws.
Juror selection. Generally, the candidates of juror are selected randomly from citizens residing within jurisdiction of the grassroot court. However, the candidates can also be picked through recommendation. The jurors selected through recommendation shall not be more than one fifth of the total number; and the total number of jurors shall not be more than 3 times of total number of appointed judges. Image there will be less than 300 jurors if a district court only has 100 judges (many district courts do not have 100 judges even in big cities).
Juror’s term The term for each juror is 5 years, same as congressman. The juror has to be appointed by the local standing committee of congress. Normally the juror can’t be re-selected.
Juror’s duties The juror can participate in cases and exercise voting power in applying law and deciding facts. The juror enjoys the same privilege as the judge based on accorded rights under the jury system.
Ways the juror can participate in judicial proceedings. There are 2 ways for the juror to participate in the case hearings: (1) 3-person bench; (2) 7-person bench. In case (1), it is not clear whether there should be 1 judge as chair or could be 1 or 2 judges, or 1 or 2 jurors vice versa. The normal practice is to have 1 judge as chair and 2 jurors to establish the bench to hear the case. In case (2), there will be 3 judges and 4 jurors to establish the bench.
Where the jury to participate. Only qualified cases in the first instance of judicial proceedings are required to have jury. According to the new law, cases with the following natures are required to have jury:
Those related to public interest; Those with great social impact and attention by the mass; Complex cases.
Typically, qualified cases use 3-person bench to hear the case. However, 7-person bench shall be established for the following cases:
Criminal cases that might get sentence of more than 10 years to life time imprison, death penalty, or other criminal case with great social impact; Cases related to public interest; Cases related to land expropriation and demolition, eco-environmental protection, food and medical safety; Other cases with great social impact
Before the new jury law was issued, experimentation had been conducted to experience a better solution to upgrade the old jury system. The purpose was to find ways to solve formalistic (puppet) function existing in the old system, so the juror could be encouraged to participate and exercise voting right with independent opinion in the judicial proceedings. The new jury system has several shines, for example: (1) random selection of jurors from citizens; (2) It is first time the law differentiates juror’s duty between applying law and deciding facts; (3) it mandates certain groups of cases be decided through the juries.
However, under existing Chinese judicial infrastructure, it seems the new jury law is not very clear in certain points to have the jury on board.
The judicial function the jury to serve. The real function of the jury is not the propaganda campaign; therefore, the new law needs to focus on the real function of the jury in the judicial proceedings. The jury is not a judge panel and its function should not be vested as the judge’s. The juror should not become outside “official” inserted into the judicial system.
Jury’s independence. Although now jurors are selected through random pick, the cap of total number, the appointment process as well as the term for each juror would hugely impact who are selected and appointed. Eventually the jurors appointed might well be picked by the government, which would lose its nature of independence.
Applying law v. deciding facts. The new law vests power to the jury in applying law to the cases when 3-person bench is applied. That could be a problem. Applying law for any case is serious task even for well-trained judges. Although the new law requires to set up training program for appointed jurors, it is doubted whether trained jurors are capable to apply law in complex cases.
Still difficult to implement the new law. On the one hand, in large cities, the population is quite dense, which means small number of jurors have to be picked from large population; on the other hand, in rural area, people are quite mobile to find jobs; and it is difficult for people living in countryside to travel to the city to participate the case hearing. All these facts might impact the representativeness of the jurors selected. In addition, training program for the jurors could be very experimental, as there is not clear purpose for what to offer for the training. How to decide facts? Or how to apply law?
It is good to see China has been reforming its judicial system to offer a better judicial experience to the people. But China needs to understand judicial system is not government and should not mix with governmental function into judicial practice. If that is clear, China’s judicial reform might have a better and clearer picture.
(This article is for information purpose only and is not legal advice. Please contact us if you have any question.)