Lay Participation in the Adjudication of Legal Disputes: A Legal-Historical and Comparative Analysis Focussing on the People's Republic of China and its Special Administrative Region Hong Kong
74 Pages Posted: 2 Aug 2019
Date Written: July 30, 2019
The participation of lay persons in the adjudication of legal disputes is generally regarded as a necessary and effective constituent for a credible and independent judicial system. This is exemplified in the trial by jury in jurisdictions with legal systems following the common law tradition, and the participation of lay assessors sitting together with (a) professional judge(s) in mixed-court tribunals in jurisdictions with legal systems following the civil law tradition. This article offers a comprehensive, legal-historical and comparative analysis of the respective modes of adjudication adopted in the People’s Republic of China and its Special Administrative Region of Hong Kong, for as far as these make provision for the participation of ordinary citizens in the adjudication of criminal legal proceedings. The focus on lay participation in the criminal legal proceedings of these two jurisdictions serves as an example of legal transplants from other “Western” jurisdictions to the “East” through conquest, colonization, and legal reform. The critical analysis and review of these legal transplants as provided for here, not only elucidate the unique laws and legal systems of these two jurisdictions operating under the one country two systems principle, it also raises questions with regard to the true value and suitability of the respective lay participation models with reference to its distinct, contemporary Chinese context. The question remains, from medieval “West” to the present-day “East”, whether the participation of lay persons in the adjudication of legal (criminal) disputes is not overestimated, and whether it is truly a guarantor of (or at least contributing to) a credible and independent judicial system.
Keywords: Juries, Assessors, People's Republic of China, Hong Kong Special Administrative Region, Adjudication of Criminal Proceedings, Professional Judges, Mixed-Court Tribunals
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