Reviewing the Supreme People’s Court Report on the People’s Assessor System Reform: Pt. 1

In April 2015, the NPC Standing Committee (NPCSC) passed a decision authorizing the Supreme People’s Court (SPC) to conduct pilot programs to reform the people’s assessor system in 50 courts—at both basic and intermediate level—in ten listed provinces. The pilots formally began on April 28, 2015 to run for a period of two years, in accordance with the NPCSC’s authorization. In June 2016, months before we started this Blog, the SPC submitted to the NPCSC a midterm report on the status of the pilot programs, as required by the authorization. As the authorization is set to expire later this month, we think it fitting at this moment to review what the SPC has written about the reform efforts in its 2016 report.

Introduction

Under current Chinese law, first-instance cases—whether civil, criminal, or administrative—may be heard by judges sitting with one or more people’s assessors: lay citizens selected by the courts “to give proceedings the appearance of popular democracy.”^[1]

This system has been subject to criticism, however. On the one hand, the assessors typically defer to the judges, failing their purported role as outside checks on career judges. On the other hand, due to the limited number of approved assessors, many participate in trials so frequently that they become known as “career assessors” [驻庭陪审] and “de facto judges” [编外法官]. Their competency in deciding questions of law—a duty mandated by law—is often questioned as well.

The reform pilots thus sought to resolve these and many other shortcomings of the current scheme, with the objective of elevating the public’s trust in the people’s assessor system and the justice system in general.

Like other reform authorizations, the NPCSC’s decision here contains little details of how the reform would be implemented. It instead leaves the SPC to formulate a more comprehensive plan with focus on the following areas:

• Eligibility for people’s assessors;
• Procedures for their selection;
• Scope of their participation in cases;
• Mechanisms for their participation in cases;
• Their authorities in adjudicating cases;
• Withdrawal and disciplinary mechanisms for people’s assessors;
• Systems for safeguarding their performance of duties.

Then in May 2015, the SPC and the Ministry of Justice jointly promulgated a set of measures on carrying out the reform pilots (Implementation Measures), which China Law Translate has translated in full. We’ll introduce the key points of the Implementation Measures below when reviewing the SPC’s report, but we suggest that you skim through them before continuing.

The SPC’s report contains the following three main parts, each further divided into sections and subsections:

1. Status and preliminary results (read “success”) of the pilots;
2. Problems and difficulties facing the pilots;
3. Measures and suggestions for further advancing the pilots.

The rest of this post will discuss the first part, while the other two will be the subject of a subsequent blog post.

Preliminary Results of the Reform

Overview

The SPC started its report by identifying four major changes the pilot programs made to the existing people’s assessor system, namely:

1. The methods for selecting people’s assessors changed from being recommendation-based to being based on random selection.
2. Instead of deciding on all issues in a case, now the people’s assessors only determine questions of facts.
3. In cases with people’s assessors participating, three-member collegiate panels gradually gave way to panels of five or more members.
4. Focus is now placed on the “quality” of cases with people’s assessors participating instead of their “quantity.”

Each of these changes will be discussed more fully below.

The SPC continued by providing the following statistics from the first year of the reform pilots—that is, by April 2016:

• The 50 pilot courts had selected 9,673 new people’s assessors, leading to a total of 13,322—4.3 times the number of judges sitting in those courts.
• The people’s assessors had participated in 10,002 criminal cases, 59,616 civil cases, and 4,711 civil cases—accounting for 73.2% of all first-instance cases following ordinary procedures (i.e., not summary or expedited procedures).
• Of the cases with people’s assessors participating, 25% ended in mediations or withdrawals of lawsuits, and 1707 (2.3%) involved collective or social public interest or otherwise had major social impact.

Eligibility

The Implementation Measures raised the minimum age for a people’s assessor from 23 to 28, while lowering the education requirement from having an Associate’s degree or higher to having a high school education or higher. Exceptions are made for “respectable” people from rural and/or remote, impoverished regions.

The purpose of this two-way adjustment, the SPC explained, was to select more “ordinary people” [普通群众]—as opposed to Party and government officials—as people’s assessors to take advantage of their “rich social experience and familiarity with social conditions and public opinions.”

As a result of the change, the SPC reported that in the pilot regions:

1. People’s assessors having a high school education or lower increased from 18.3% pre-reform to 38.5%, with the percentage in one Guangxi court rising four-fold;
2. Newly appointed people’s assessors were all above the age of 28;
3. The average age of all people’s assessors was 45, likely higher than that pre-reform.

Selection Methods

Random Selection

A key feature of the ongoing pilot programs is that the selection of people’s assessors is no longer based on their employers’ or residents’ committees’ recommendations. Instead, candidates are randomly drawn from the local voters or long-term residents within a court’s jurisdiction, at a ratio of more than five times the number of judges sitting on that court. After screening, a court again randomly chooses from the remaining candidates a certain number of people—no fewer than three to five times the number of its judges—as the final people’s assessors.

Following the implementation of the new selection method, 88% of new assessors appointed in the pilot regions are “ordinary people,” up 9% from the pre-reform level, according to the SPC.

The SPC also mentioned that, to ensure transparency and fairness of the random selection process, courts in four provinces invited legislators, CPPCC members, scholars, and journalists to observe the process.

Class-based Selection

In its report, the SPC indicated that the pilot courts were also experimenting with class-based random selection methods—which were not provided for in the Implementation Measures—so that the people’s assessors chosen would be broadly representative (reminiscent of the requirement for people’s congress delegates). The courts were said to take into account the following factors:

• Population size;
• Sex ratio;
• Regional characteristics;
• Industry distribution;
• Ethnic composition;
• Types of cases; etc.

The SPC gave several examples of this selection method in action.

• Two basic-level courts in two different provinces determined the corresponding ratio of people to be appointed people’s assessors on the basis of the “specific circumstances” of local communities and villages; the SPC did not further elaborate.
• The Shaanxi High Court and the province’s women’s federation jointly released an opinion calling for strengthening efforts to select female assessors. In consequence, as the SPC seemed to imply, 36.3% of the newly appointed people’s assessors in Shaanxi were women—a percentage that is presumably higher than that of elsewhere.
• A court in Henan Province accepted as people’s assessors ten people from remote mountainous areas who did not even have high school education, but were regarded as “fair, upright, and respectable.”
• Some pilot courts “actively explored” mechanisms for selecting people’s assessors with “specialized knowledge”—for example, those educated in architecture, accounting, medicine, and finance—by considering candidates’ educational background and work experience. The goal is “to improve the people’s assessors’ ability to determine facts in difficult and complex cases.”

Scope and Mode of Participation

The Implementation Measures slightly expanded the scope of the people’s assessors’ participation in cases.

• As a general rule, people’s assessors may participate in all first-instance cases unless prohibited by law.
• But cases with one of the following circumstances should (in principle) be heard by people’s assessors alongside judges, except for reasons such as personal privacy or trade secrets protection:
  1. Cases involving collective interest or social public interest, attracting broad attention, or otherwise having major social impact;
  2. Criminal cases in which the defendant(s) may be sentenced to more than ten years of fixed-term imprisonment or to life imprisonment;
  3. Major cases involving land expropriation and demolition, environmental protection, or food and drug safety.

According to the SPC, pilot courts in Jiangsu and Shandong Provinces designated additional types of cases—those that are relatively controversial and whose facts are relatively hard to ascertain—as suitable for people’s assessors to participate in. More specifically, these cases include:

• Cases involving public safety, medical disputes, neighborhood disputes, and other such cases that may lead to heated contention between parties;
• Administrative cases involving land or real estate administration or otherwise relating to “the people’s vital interests.”

Moreover, bigger collegiate panels accompany the assessors’ more frequent presence on the bench. In the types of cases cited above, as well as in cases involving ethics, social custom, and industry practice, the pilot courts convened in panels of five or more, including three or more people’s assessors, according to the SPC. Since the beginning of the reform pilots (and by April 2016), the courts have heard 818 “major sensitive cases” in big panels, which elevated “the degree of social recognition of the judgments.”

As part the reform pilots, the courts have also sought to tackle the problem of “career assessors” or “de facto judges” as mentioned earlier, by—

• Setting the maximum number of cases (10–30) a people’s assessor may participate in annually based on the number and types of cases, and the number of assessors in a court’s jurisdictional region.
• Having the random selection system automatically exclude assessors who have reached their case participation limit.

Duties and Rights

To implement the Communist Party’s 2014 Fourth Plenum Decision, the reform pilots sought to separate the consideration of law from fact determination—which existing laws do not differentiate. The Implementation Measures therefore require the people’s assessors to both express opinions and vote on questions of fact, but only allow them to comment (and not vote) on questions of law. Under current law, however, they would be triers of both fact and law.

To carry out this reform, pilot courts are said to require their judges to make fact sheets for the people’s assessors to comment and vote on. And questions involving inseparable facts and law were included in the fact-determination process. The SPC reported that the 50 pilot courts had heard 3,374 cases using fact sheets, and that some courts had formulated procedural rules for separating fact determination from consideration of law in cases with people’s assessors participating.

Furthermore, the SPC detailed the ways in which the reform pilots sought to protect the people’s assessors’ rights in such capacity. They include:

• Facilitating the people’s assessors’ review of case files before court hearings;
• Allowing them to speak first and independently on questions of fact determination at a panel’s discussion;
• Recording their views in the records of panel discussions;
• Strictly enforcing the requirement that the people’s assessors personally sign on panel discussion records and court judgments.

The SPC contended that these measures had effectively solved the problems that the people’s assessors “sit without hearing” [陪而不审] and “hear without discussing” [审而不议].

Safeguards for Performance of Duties

Training

The SPC listed the following as its efforts to reform the training system for people’s assessors and to improve the their ability to perform duties:

• It did research on reforming the training system, securing funds for training, improving the format and content of training, as well as increasing the “pertinence and effectiveness” of the training programs;
• It held a model class on training people’s assessors;
• It organized the writing of a textbook (of sorts) for people’s assessors.

The pilot courts have also done their part to train the lay judges. According to the SPC, they were focusing on teaching the assessors about their rights and duties, trial procedures, evidence determination, judicial etiquette, and behavioral norms. In the first year of the pilots, pilot courts have provided pre-job training to approximately 10,000 trainees, and routine training to around 12,000 trainees.

Funding

Most pilot courts have created special funds to support the people’s assessor system, secured such funds as part of their own budgets, and increase the level of funding. The people’s assessors are also subsidized for their court appearances: 60% of the pilot courts handed out subsidies on a per-case basis, while the other 40% on a per-appearance basis, according to the SPC.

Certain courts went even further. A Guangxi court purchased personal accident insurances for its people’s assessors, while two intermediate courts in Shandong and Jiangsu Provinces promulgated rules on protecting the people’s assessors’ privacy as well as personal and property safety.

Informatization

The SPC reported that it has established a national uniform information management system to “webify, standardize, and simplify” the management of people’s assessors. In addition, two pilot courts have developed mobile applications for the people’s assessors to view case files online as they are “synchronously scanned” by the courts. Several other courts have also made the people’s assessors’ work easier by enabling remote case file viewing and electronic signature.

The problems identified by the SPC and the solutions it proposed will follow in a much shorter Part 2.

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^[1] Jerome A. Cohen, “Struggling for Justice: China’s Courts and the Challenge of Reform,” World Politics Review, January 14, 2014.

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