This post continues Part 1 with a summary of the second half of the Supreme People’s Court’s (SPC’s) midterm report on pilot reform of the people’s assessor system—authorized by the NPC Standing Committee in April 2015. This part of the SPC’s report concerns the problems the Court identified with the pilot projects as well as its suggestions for further advancing the reform. In the days since we published Part 1, we have learned that the NPCSC is poised to renew the pilot projects (at least for another year, we think). One therefore could expect the SPC to focus on the difficulties discussed below in the next phase of the reform.
Problems & Difficulties
# 1: Lack of full appreciation of the importance of the reform pilots
- Some courts found the random selection of people’s assessors time-consuming and to take too much efforts (which is understandable in the light of the courts’ rapidly rising caseloads and a shrinking judicial workforce);
- Some judges had doubts about promoting the use of “big panels”—collegiate panels consisting of five or more members, including three or more people’s assessor (see Part 1 for details);
- Pilot projects weren’t being carried out evenly across the pilot regions as certain courts lagged behind with regards to the selection of, participation by, and protection for the people’s assessors.
# 2: Difficulty in implementing random selection of people’s assessors
- The personal information of candidates for people’s assessors was either missing or not up-to-date, making it hard to locate potential candidates;
- The costs for selecting people’s assessors were too high as the pilot courts devoted significant manpower and resources to collecting population information, soliciting the candidates’ opinions, and examining their eligibility;
- A relatively high proportion of candidates refused to serve as people’s assessors;
- Random selection was particularly hard to implement in regions having large geographical area and poor transportation.
# 3: Problems with differentiating fact determination from the consideration of law
As we’ve written in Part 1, the ongoing reform pilots seek to restrict a people’s assessor’s consideration of a case to the determination of its facts. Therefore, as the SPC wrote, the judges of a case are required to “accurately” differentiate questions of fact from questions of law so that the people’s assessors could participate more effectively. In reality, those two types of questions are sometimes “too intertwined to be separated from each other completely.” Despite the judges’ best efforts to do so with “fact sheets” (see Part 1 for details), recognized the SPC, separating questions of fact determination and law application needs further exploration, as China’s three principal procedural laws—the Civil Procedure Law, the Criminal Procedure Law, and the Administrative Litigation Law—currently don’t make that distinction themselves.
# 4: Shortcomings of safeguards for people’s assessors
- Some pilot courts still hadn’t established the necessary funding mechanisms for the people’s assessor system;
- Some employers didn’t support their employees’ serving as people’s assessors, and as a result a high percentage of candidates couldn’t serve for work-related reasons;
- There was a lack of remedy in situations where the personal information of the people’s assessors was leaked or where their properties or persons were harmed.
The SPC also identified a few other problems and difficulties without elaborating:
- Intermediate courts’ selection of people’s assessors. Generally speaking, these courts have larger jurisdictional areas than basic-level courts, so presumably they would have a harder time applying random selection methods to larger populations.
- Ways to improve case-hearing by big panels;
- Withdrawal and disciplinary mechanisms for people’s assessors.
Solutions & Suggestions
Regarding the Selection of the People’s Assessors
The SPC proposes to:
- Strengthen coordination with public security organs to facilitate the sharing of the personal information of a region’s long-term residents—from whom candidates for people’s assessors are drawn—with the courts.
- Explore random selection methods which are more “flexible” and which are based on regions, types of cases, and areas of knowledge—so that the courts may take advantage of professionals’ specialized knowledge in fact determination. See Part 1 for a more detailed introduction of this so-called class-based random selection method.
- Perfect an online system for selecting people’s assessors. The SPC intends to improve such functionalities of the system as automatic exclusion of those who exceed their case participation limit, staggered case-hearing times for the assessors, text message notifications, and so forth.
Regarding the People’s Assessors’ Participation in Cases
The SPC was prepared to:
- Formulate a set of specific rules further delineating the scope of cases in which the people’s assessors should participate;
- Draft rules specifying the types of cases to be heard by big panels as well as the procedures for trial and panel deliberation in those cases;
- Strengthen education and training of judges so that they are better equipped to guide the people’s assessors in their determination of facts.
Regarding the Safeguards for the People’s Assessors
The SPC proposes to:
- Establish systems for protecting the people’s assessors’ personal information and personal safety as well as funding for their service;
- Improve the training system for the people’s assessors by employing case studies, courtroom observations, and lectures to educate them on their rights and duties, trial procedures, and trial skills;
- Formulate provisions on commending and rewarding outstanding people’s assessors;
- Record the people’s assessors’ unlawful performance of duty in their personal credit records;
- Straighten out the relationship between the people’s assessor system and the judicial accountability system.
Lastly, in order to further publicize the reform pilots and to gain the public support, the SPC was planning on taking advantage of both traditional media (e.g., running public service advertising on local TV stations) and new media (e.g., Weibo, WeChat, and the Court’s mobile app), not least by promoting the “exemplary deeds” of outstanding people’s assessors.
When the NPCSC comes back into session later this month, we’ll have more information on the SPC’s proposal to extend the reform pilots period.
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