In China, the jurisdiction of the lower courts, the higher courts and the Supreme Court is outlined by the criminal procedure law in a very general way. Only the jurisdiction of the intermediate courts is specific, including cases of endangering state security, ordinary cases punishable by life imprisonment or the death penalty, and cases in which the accused is a foreigner. Lower courts try most minor cases. Higher courts and the Supreme Court try the cases that may be of importance to the whole province or the nation.

Section 47 of the Criminal Procedure Law provides that the lower courts or intermediate courts try first instance cases, conducted by a collegial panel composed of three judges or judges and assessors. If the case is to be tried with summary procedure, a single judge sits alone. If the first instance case is tried in the Higher Courts or the Supreme Court, the collegial panel is composed of three to seven judges or same number judges with assessors. Appeals are conducted by a collegial panel composed of three to five judges, without assessors.

The reformed criminal procedure law constitutes a move from inquisitorial model to the adversary trial by making the judge’s role less dominant and active as before. Under the former criminal procedure code, after the prosecutor read the accusatory pleading, the judge questioned the defendant, called the witnesses, read the testimonies of the witnesses who were absent, and presented other evidence.

Lay assessors in China are advised by the professional judge on evidentiary issues and the applicable law. This is done not in open court but in the secrecy of chambers during deliberations. There is no transcript thereof for appellate purposes. The parties have no influence on how the law is applied in the deliberations. Doubtful questions need not be answered. If there are arguments, the parties may only address the panel, they may not ask the lay assessors to resist the professional judge. In most cases, the lay assessors are totally controlled by the professional judges.

The Criminal Procedure Law and the Organic Law of the Courts do not describe the procedure of deliberation in a detailed way. Deliberations are carried on in secret. We believe that professional judges play a dominant role during the deliberation. They not only lead the deliberations, but also influence it greatly. With the revised Criminal Procedure Law, the judge does not receive the entire investigative dossier and evidence before the trial. There is a Regulation on Implementation of the Criminal Procedure Law provides that all the evidence which they presented during trial should be submitted to the court shortly after the trial. Generally, professional judges and lay assessors have the opportunity to read some parts of the investigative dossier during deliberation. In practice, lay assessors seldom go against the will of professional judges. Even if the lay assessors want to ignore the law and acquit, they are hardly ever successful

Generally the written judgement is formulated by professional judges, and then submitted to lay assessors for approval and signature. In practice, it sometimes happens that the professional judge is outvoted by the lay assessors (when the penal is composed of one professional judge and two lay assessors ). Then the case may be considered to be a difficult case and the collegial penal has the right to submit this case to the judicial committee for discussion and decision. Finally, the written judgement would be formulated by the professional judge according to the decision of the judicial committee.

According to the criminal procedure law, if the defendant, private prosecutor or their legal representatives refuse to accept a judgement or order of a first instance trial court, they shall have the right to appeal. The reason for appeal could be any disagreement with the judgement. It may include a judgement of acquittal, because of disagreement with the facts upon which the judgement is based. New evidence may be adduced in the appellate court when appeal is based on the lack of clarity of the facts in the original judgement.

Section 38 of the Organic Law of the Courts provides that “ citizens who have the right to vote and stand for election and have reached the age of 23 shall be eligible to be elected as lay assessors; however, persons who have once been deprived of political rights shall be excluded.” In practice, most of the lay assessors are nominated by working units and selected by courts. The Organic Law does not provide in a detailed way which classes or professions should be excluded, and it also doesn’t provide language or educational requirements. In practice some of house wives have not been able to read the written testimonies of the witnesses.

Until the end of Qing Dynasty, China had no jury or lay assessor system. A famous law reformer, Mr. Shen Jia Ben was appointed to lead the law reform work in 1902. He was influenced by Western law and thought that because a single judge’s knowledge was insufficient in complicated cases, the jury system should be introduced in China. In the Qing Criminal, Civil Procedure Law detailed provisions were made relating to the duties of jurors and how they were to be selected. Unfortunately this law was not enacted and brought into force. Shortly after the People’s Republic of China was found in 1949, the Provisional Regulation of the Organic Law of the Courts was enacted, which introduced the lay assessors system. In 1954 the lay assessor system was given constitutional status. This legislation was influenced by the former Soviet system. The reason for introducing the lay assessor system was to have citizens participate in the administration of justice.

In general, the Chinese lay assessor system has not functioned well during the last decades, and this is the reason reforms are being considered. The main problem is that lay assessors in most cases are influenced by professional judges. In fact, the mixed court with lay assessors functions no differently than a court with a single judge. It is considered as surplus decoration. In quite number of cases, professional judges think that it may be a waste of time and financial sources to use a mixed court. Therefore, in 1983, the Organic Law of the Courts was revised. Under the former law, except for minor criminal cases which could be tried by single judge, all other cases in the first instance were tried by a collegial panel of judges and lay assessors. Now cases of first instance shall be tried first by a collegial panel of professional judges, and then, in the second instance, by judges with lay assessors. These changes show that the courts find it difficult to have all cases tried by judges and lay assessor together.

A reform proposal will soon be submitted in China relating to the jury or lay assessor system. The discussions are ongoing. There are two main ideas : One suggests that China should set up the jury system, since some experts believe that lay assessors cannot escape the control and influence of professional judges and play an independent role in the judicial system. They are afraid that lay assessors would retain their decorative role. Furthermore, the Chinese Criminal Procedure law reform has moved towards the adversary trial, judges should not play the dominant role at trial, therefore, jury trial may fit this reform better. The second idea is to keep the lay assessor system and try to make it function in a better way. It seems like the latter idea may be easier for the courts to accept. Some judges think China has no jury trial tradition and that jury trial also costs too much.