Lay Participation in the Adjudication of Legal Disputes: A Legal-Historical and Comparative Analysis Focusing on the People's Republic of China and Its Special Administrative Region Hong Kong

• Author: Andra Le Roux-Kemp
• Pages: 184-256

184 TSINGHUA CHINA LAW REVIEW [Vol. 11:183

LAY PARTICIPATION IN THE ADJUDICATION

OF LEGAL DISPUTES: A LEGAL-HISTORICAL

AND COMPARATIVE ANALYSIS

FOCUSSING ON THE PEOPLE’S REPUBLIC OF CHINA

AND ITS SPECIAL ADMINISTRATIVE REGION HONG KONG

Andra LE ROUX-KEMP

Abstract

The participation of lay persons in the adjudication of legal disputes is generally rega rded as a

necessary and effective constitue nt for a credible and inde pendent judicial system. This is

exemplified in the trial by jury in jurisdictions with legal systems fo llowing the c ommon law

tradition, and the participation of lay assessors sitting together with (a) professional judge (s)

in mixed-court tribunals in jurisdictions with legal systems following the civil law tradition. This

article offers a comprehen sive, legal -historical and comparative analysis of the respective

modes of adjudication adopted in the People’s Republic of China and its Special Administrative

Region of Hong Kong, for as far as these make provision for the participation of ordinary

citizens in the adjudication of criminal legal proceedings. The focus on lay participa tion in the

criminal legal proceedings of these two jurisdictions serves as an ex ample of legal transplants

from othe r “Western” jurisdictions to the “East” through c onquest, colonization, and leg al

reform. The critical analysis and review of these legal transplants as provided for here, not only

elucidate the unique laws and legal systems of these two jurisdictions operating under the one

country two systems principle, it a lso raise s ques tions with regard to th e true value and

suitability of the respective lay participation models with reference to its distinct, contemporary

Chinese context. The ques tion remains, from medieval “West” to the p resent-day “East”,

whether the participa tion of lay persons in the adjudication of legal (criminal) disputes is not

overestimated, and whether it is truly a guarantor of (or at least contributing to) a credible and

independent judicial system.

I. INTRODUCTION

The participation of ordinary citizens in the various spheres of

public life serves an important legitimation function as it represents

the local interest, the voice of the people, the unprivileged classes, and

ultimately, the ideals of democracy. 1 In terms of national legal

systems and the adjudication of criminal disputes specifically, the role

of lay persons is generally recognised as an essential component in the

state legal machinery. This is true of most states, jurisdictions, and

other legal entities the world over, and irrespective of the predominant

political ideology or the specific features of their legal systems, as it

1 Deborah A. Ramirez, The Mixed Jury and the Ancient Custom of Trial by Jury De Medietate

Linguae: A History and a Proposal for Chang e, 74 B.U. L. REV. 777, 778 (1995). See generally Richard

O. Lempert, The Internationalisation of Lay Legal Decision -Making: Jury Re surgence and Jury

Research, 40 CORNELL INT’L L.J. 477 (2007 ).

2019] LAY PARTICIPATION IN THE ADJU DICATION 185

is generally accepted that people will have greater confidence in a

system – whatever that system is – if they perceive themselves and

their peers as having some stake, or input therein.2

The focus of this article is on lay participation in the criminal legal

proceedings of the Peo ple’s Republic of China and its Special

Administrative Region of Hong Kong. This world region offers a

particularly interesting locus for reflection on the two dominant modes

whereby lay participation in criminal legal proceedings is ensured –

the jury trial3 and the mixed court or tribunal4 – as both these two

models feature in the courts and legal systems of the People’s Republic

of China and its Special Administrative Region, Hong Kong. The

focus on lay participation in the criminal legal proceedings of these

two jurisdictions is not only interesting in terms of their unique laws

and legal systems, but also serves as an example of legal transplants

from various other “Western” jurisdictions to the “East” through

conquest, colonization and legal reform. By no means does this article

attempt to compare the Western systems of lay participation in the

adjudication of criminal disputes with the analogous practice in the

legal systems of the People’s Republic of China and its Special

Administrative Region of Hong Kong. Indeed, this would be a futile

endeavor; it has long been settled that one cannot “interpret the

Chinese system in terms of Western juristic thought and to analyse it

2 Sanja Kutnjak Ivkovic, An Insid e View: Professional Judges’ and Lay Judges’ Support for Mixed

Tribunals, 25 L. & POL’Y 93, 97 (2003); Xin He, Double Whammy: Lay Assessors as Lackeys in Chinese

Courts, 50 L. & SOC’Y REV. 733, 733-34 (2016 ).

3 A jury trial is usually pr esided over by a professional judge who control s and gui des the legal

process and decide on procedure and questions of law, including the sentence in the event of a conviction.

In determining the guilt or innocence of the accused, the professional judge is assisted by a number of lay

persons randomly sele cted to constitute a jury, and who is tasked with the ultimate decision to return a

verdict under the guidance and direction of the judge. These jury members may either represent a random

section of th e community or represe nt persons with a background or social status similar to that of the

accused. See generally Hermann Mannheim, Trial b y Jury in Modern Con tinental Criminal Law, 53 L.

Q. REV. 99 (1937); Colin Davies & Christopher Edwards, ‘A Jury of Peers’: A Comparative Analysis , 68

J. CRIM. L. 150, 151-152 (2004).

4 Mixed courts or tribunals refer to an array o f lay participation models which provide for a number

of lay persons to share the bench with a professional judge or professional judges and to oversee and

ultimately decide together on criminal legal matters, including th e guilt or innocence of the accused as

well as the appropriate sentence in the event of a conviction. See generally Valerie P. Hans, Jury Systems

Around the World, 4 ANN. REV. L. & SOC. SCI. 275 (2008); Stefan Machura, Fairness, Justice, and

Legitimacy: Experiences of People’s Judge s in South Russia, 25 L. & POL’Y 123, 124 (2003).

186 TSINGHUA CHINA LAW REVIEW [Vol. 11:183

in terms of comparative law”.5 Nor can one interpret and compare

medieval legal processes and practices with those of our modern legal

systems and laws today. However, the tracing of the legal-historical

development and subsequent geographical transplants of legal systems

and their institutions for adjudication, including the consistent

participation of its citizenry, offer valuable insights for further

analysis. It allows us to see, “with greater clarity than elsewhere, what

may happen when legal institutions are transferred bodily to foreign

countries, what errors are likely to arise, and what results can be

achieved.”6

Part II of this article provides a historical overview of lay

participation in the process of adjudicating criminal disputes from its

early representations in medieval Europe and England, up to the

nineteenth century when the rudiments of the two dominant legal

traditions – the civil law tradition and the common law tradition –

became well established. From here, the discussion and analysis will

turn to the “East”, where these models of lay participation in the

process of adjudicating criminal disputes were transplanted through

conquest, colonization and legal reform. To this end, Part III of the

article provides a succinct overview of the development of the Chinese

legal system from its earliest origins to date. It will be noted that the

Chinese legal system does not conform to, or truly resemble either the

civil law tradition or the common law tradition, and continues to

develop as a unique third legal tradition of the world. Part IV of the

article focuses specifically on lay participation in the adjudication of

criminal trials in the People’s Republic of China as well as its Special

Administrative Region of Hong Kong. This overview and analysis

highlight the distinctive features of and obstacles to the legal

development and reform o f the people’s assessor system of t he

People’s Republic of China, as well as the trial by jury of the Hong

Kong Special Administrative Region. The article concludes with a

critical reflection on the present state of lay participation in the

criminal legal proceedings of the People’s Republic of China and its

Special Administrative Region of Hong Kong. While it will be

questioned whether lay participation in the criminal legal proceedings

5 JOHN HENRY MERRYMAN ET AL., THE CIVIL LAW TRADITION: EUROPE, LATIN AMERICA, AND

EAST ASIA 407 (1994); ALBERT HUNG-YEE CHEN, AN INTRODUCTION TO THE LEGAL SYSTEM OF THE

PEOPLE’S REPUBLIC OF CHINA 1 (H.K., LexisNexis 4th ed. 2011).

6 Mannheim, supra note 3, at 99.