Key Takeaways:
- Before 2018, judges and people’s assessors were identically empowered. Now under the People's Assessors Law (2018), the assessors in a seven-person collegial bench can only participate in the fact-finding, but not the application of law.
- The collegial bench is responsible for the distinction between factual and legal matters. In case of difficulty in the distinction, the uncertain ones will be regarded as factual matters.
- In 2020, China’s Supreme People’s Court and the Ministry of Justice issued the “Replies to Several Issues Arising from the Implementation of the People's Assessors Law of the People's Republic of China” (〈中華人民共和國人民陪審員法〉實施中若干問題的答復), clarifying how the collegial bench shall produce a list of issues on the fact-finding, so as to sure the proper distinction between legal matters and factual mattes.
According to the new people’s assessors system established in 2018, the assessors in a seven-person collegial bench can only participate in the fact-finding, but not the application of law.
This is the first time that China has distinguished the powers of judges and assessors. Before that, judges and assessors were identically empowered.
However, Chinese courts have not been ready to distinguish between factual matters and legal matters, and now they are trying to explore a set of mechanisms in practice.
I. What are the powers of assessors?
The PRC Civil Procedure Law (CPL) had established the people's assessors system in the early days and clearly stated that "assessors shall enjoy equal rights and obligations as judges in performing their duties", indicating that assessors could express their opinions on all issues involved in a case like judges.
However, this had been changed in 2018 when the People's Assessors Law was promulgated.
The People's Assessors Law sets out the different functions and powers of people's assessors in two situations:
(1) When participating in the trial of a case, a people's assessor in the three-person collegial bench shall independently voice his or her opinions on the fact-finding and the application of law, and exercise his or her right to vote;
(2) When participating in the trial of a case, a people's assessor in the seven-person collegial bench shall independently voice his or her opinions on the fact-finding and vote together with judges. As to the application of law, the people's assessor may voice his or her opinions, but may not cast a vote.
In other words, a people's assessor in the seven-person collegial bench can substantively participate in the fact-finding, but not the application of law.
Why does the People's Assessors Law make such a distinction?
This is because,a in China, the cases tried by the seven-person collegial bench are usually difficult and complex ones with great social impact. The application of law in such cases is relatively more complicated, making it hard for people's assessors to understand and apply the laws involved. Therefore, the People's Assessors Law limits the powers of assessors in terms of legal matters.
II. How do Chinese courts distinguish between factual and legal issues?
1. The collegial bench is responsible for the distinction between factual and legal matters
Pursuant to the “Interpretations on Several Issues concerning the Application of the People's Assessors Law of the People's Republic of China” (關于適用〈中華人民共和國人民陪審員法〉若干問題的解釋) issued by China’s Supreme People's Court (SPC）in 2019, the seven-person collegial bench shall prepare a list of issues on the fact-finding before the hearing.
The collegial bench shall distinguish between the issues on the fact-finding and the application of law in light of the specific circumstances of a case and list the factual issues in dispute item by item, so as to provide a reference for people's assessors in the court trial.
Moreover, in case of difficulty in the distinction, in order to ensure the powers of assessors, the uncertain ones will be regarded as factual matters.
2. What should be included in the list of issues on the fact-finding?
To restrain judges' power to select factual issues, the SPC and the Ministry of Justice have further issued the “Replies to Several Issues Arising from the Implementation of the People's Assessors Law of the People's Republic of China” (〈中華人民共和國人民陪審員法〉實施中若干問題的答復) in 2020, clarifying how the collegial bench shall produce a list of issues on the fact-finding. The criteria are as follows:
(1) The list of issues on the fact-finding shall base on all the facts of the case and put emphasis on the difficulties and focus of dispute in the case.
(2) In criminal cases, the list of issues on the fact-finding can take into account the constitutive elements of a crime, such as the facts that constitute a crime, the facts that do not constitute a crime, and the facts related to the circumstances of sentencing.
(3) In civil cases, the list of issues on the fact-finding can summarize the essential facts disputed by the parties in accordance with the normative basis of claims for different types of disputes.
(4) In administrative cases, the list of issues on the fact-finding mainly includes the requisite facts for examining the legality of an administrative act.
III. CJO’s comments
Before 2018, Chinese courts had never attempted to screen out factual issues for assessors, which made Chinese judges very inexperienced in this area.
(1) Judges decide on the terms of reference of assessors
In practice, though inexperienced, the judges in the collegial bench are often responsible for the division of factual and legal issues.
Therefore, judges actually decide which are the factual issues that assessors can participate in. In other words, judges determine the mandate of assessors to some extent.
To solve this problem, the SPC and the Ministry of justice attempt to give certain standards to clarify which issues should be factual, but the standards are rather vague.
Consequently, the selection of factual issues depends on the experience of the presiding judge to a large extent.
(2) Who should judge the procedural issues?
In fact, the factual and legal issues mentioned in the People's Assessors Law mainly aim at the substantive issues, without noting whether assessors can vote on procedural issues. As a result, judges exclusively hold the procedural power included in the power of adjudication.
However, procedural issues are often at the core of criminal cases. The exclusion of assessors in procedural issues may cause a significant reduction of their powers.
Photo by Texco Kwok on Unsplash
Contributors: Guodong Du 杜國棟
