Double Whammy: Lay Assessors as Lackeys in Chinese Courts

• DOI: http://doi.org/10.1111/lasr.12218
• Date: 01 September 2016
• Published date: 01 September 2016

Double Whammy: Lay Assessors as Lackeys in

Chinese Courts

Xin He

Primarily drawing on in-depth interviews with lay assessors and judges in Chi-

nese courts, this study suggests that assessors are little more than lackeys. To

determine the role of lay participation in decision making across different

jurisdictions, this article proposes two variables. The first is whether lay asses-

sors are separate from, or mixed with, professional judges; the second is

whether the regime is democratic or authoritarian. Viewed according to these

variables, China’s lay-assessor institution is subject to a double whammy: one,

the superior legal knowledge of professional judges and their dominance in

procedures, and two, the ultimate control of the regime over judges, who, for

self-protection, firmly control lay assessors. This article advances our under-

standing of the operation of the Chinese lay-assessor institution, and more

generally the relationship between lay participation and political regimes.

Viewed as crucial in channeling public support for the legal

system,

1

lay participation in the judicial process is seen not just in

This article was presented as the keynote speech at the 2015 Conference of the Euro-

pean China Law Studies Association in Cologne, Germany. I am grateful for the comments

of the participants. Kwai Ng, the Review’s editors and anonymous reviewers provided

insightful comments for earlier versions of this article. Special thanks go to the Chinese

judges and lay assessors who kindly accepted my interviews.

The author acknowledges the financial support from a GRF grant from the Hong

Kong Government.

Please direct all correspondence to Xin He, School of Law, City University of Hong

Kong, Kowloon, Hong Kong; e-mail: lwxin@cityu.edu.hk.

1

First, lay participation tends to contribute to a more independent and democratic

system of legal decision making (Kulcsar 1982: 34). Unlike professional judges, lay judges

or assessors are not bound by organizational restrictions, and are thus less susceptible to the

state’s direct influence on the judicial process. The most notable example of this may be the

jury system in common law jurisdictions. Second, lay judges and assessors could serve as

deterrent safeguards; their mere presence in tribunals may force professional judges to

articulate their opinions more explicitly and follow the procedures more closely. They

thereby may deter professional judges from reaching arbitrary decisions and from corrup-

tion or bias (Borucka-Arctowa 1976: 289). Third, lay participation has the potential to bring

community values into the decision-making process, and provides a forum for different

social groups to state and defend their opinions (Buchholz 1986: 216; Klami & Hamalainen

1992: 16; MacCoun & Tyler1988: 335). Their existence will allow evidence to be evaluated

by people with local knowledge. They also aid equitable decisions (Klami & Hamalainen

1992), better communication between the tribunal and the litigants, and an inclination

toward procedural justice (Tyler1990: 176).

Law & Society Review, Volume 50, Number 3 (2016)

V

C2016 Law and Society Association. All rights reserved.

733

democracies, but also in authoritarian and transitional regimes.

In an effort to reform their criminal justice systems for example,

Russia and Spain have incorporated jury systems since the 1990s

(Thaman 1999). Mixed tribunals have also survived the end of

the communist era, and are now a part of the judicial system in

transitional countries such as Hungary (Kulcsar 1972, 1982),

Poland (Borucka-Arctowa 1976), and the former Czechoslovakia

(Krystufek 1976).

China, the largest authoritarian regime in the world, has fol-

lowed a similar path. Since 2004, it has strengthened its lay asses-

sor institution (人民陪审制度), expanding the participation of the

citizenry in the administration of justice. According to a report of

the Supreme People’s Court in 2013, more than 71 percent of

cases processed through the Normal Procedure (普通程序)

involved lay assessors,

2

52 percent more than in 2006. The num-

ber of lay assessors, around 87,000 in 2013, will double in two to

three years (China Youth Daily 2014). The goal of strengthening

the assessor institution is further emphasized in the communiqu

e

of the Fourth Plenary of the Chinese Communist Party (2014).

This strengthening attempts to reduce corruption and improve

the quality of the decision-making process. It is also intended to

school citizens in rule of law, and develop public confidence in

the judiciary and the legal system (Landsman & Zhang 2008).

The role of lay assessors in the Chinese courts, however, is

controversial. Skeptics deride lay assessors as no more than “the

ears of the deaf” in the courtroom (Landsman & Zhang 2008:

211–212; Liu 2007; Yue 2001: 52; Zeng & Wang 2007; Zhang &

Yu 2009). They claim that in the Chinese word for lay participa-

tion (陪审), only the first character 陪(accompanying) is imple-

mented, while the other part 审, (adjudication) is ignored. While

the law stipulates that lay assessors are vested with the same

powers as judges, the latter can manipulate decisions through

their superior professional knowledge and status. Many scholars

even suggest dropping the assessor institution. Advocates of the

institution, however, claim that it is a milestone in the democra-

tization of the administration of justice. From time to time, lay

assessors reportedly have outvoted the professional judge in

mixed tribunals. Some proponents argue that the institution,

often perceived as unruly, constrains the judge’s decision-making

power. Based on his own experience as an expert assessor, He

2

Criminal and civil cases in Chinese courts are handled by either the Normal Proce-

dure, which requires at least three persons (judge or lay assessor) on the bench and shall be

closed within six months, or the Summary Procedure (简易程序), which has to be closed

within three months and adjudicated by one judge. Administrative cases, until recently,

were only handled by the Normal Procedure.

734 Lay Assessors in Chinese Courts

Bing (2004), a law professor in Beijing, believes that the assessor

institution is an antidote for a judiciary plagued by corruption

and a trust crisis. Further strengthening the institution, he

argues, will provide a way out for China’s judicial reform.

Without solid empirical evidence however, it is hard to evalu-

ate these arguments. Few empirical studies exist in the English lit-

erature (for some exceptions in Chinese, see Liu 2007, 2009; Zeng

& Wang 2007; Zhang & Yu 2009). Yue’s (2001) six-page descrip-

tion of the institution, published 15 years ago, remains one of the

most important sources. Valerie Hans called the Chinese institution

“little studied” (2008: 290). Due to the dearth of empirical data,

researchers often base their analysis on legal regulations, second-

ary sources, and sporadic media reports (e.g., Landsman & Zhang

2008). Inevitably, their analysis is speculative. As a consequence,

many basic questions remain unanswered: How are lay assessors

appointed? How are they assigned specific cases? Do they get a

chance to review case dossiers in advance? What happens if their

opinions differ from those of the judge? What is the relationship

between judges and lay assessors? Are lay assessors held responsi-

ble for the decisions they participate in making? Without answer-

ing these questions, our understanding of the operation of the

institution and the Collegial Panel (合议庭), the fundamental

decision-making body in Chinese courts, is limited.

This article has two goals. The first is to provide empirical

evidence regarding the operation of the institution. Focusing on

ordinary lay assessors rather than expert assessors, I interviewed

the majority of the active lay assessors of a specific trial court and

eight judges working with the assessors. Primarily drawing on

these interviews, and supplementing them with both interviews

with judges in other regions of China and the secondary litera-

ture, this article suggests that lay assessors are no more than

judges’ flunkeys. Their role in the decision-making process is

next to non-existent. As a result, the intended goals of the institu-

tion, by and large, are subverted.

My second goal is more theoretical. In what ways does the

Chinese institution differ from other institutions of lay participa-

tion? In particular, how does it differ from other mixed tribunal

institutions? Comparing the Chinese case with others, two varia-

bles are helpful in analyzing the function of lay participation in

the judicial process across different jurisdictions. One is whether

lay assessors are separate from, or mixed with, professional

judges in making decisions. The other is whether the regime in

which the lay-assessor institution is embedded is democratic or

authoritarian. In authoritarian regimes such as China, independ-

ent decisions seem out of the question, as the regime reins in the

judges, who in turn control the lay assessors. In this sense,

He 735