Empirical Evidence

A lay-participation institution was in operation before the Communists took power. It was sidelined along with the judicial system during the first three decades of the People's Republic (Reference LiuLiu 2009). When Deng Xiaoping launched the legal reforms of the late 1970s, he did not pay much attention to the lay-participation institution (Landsman & Reference Landsman and ZhangZhang 2008). The institution was revived after the National People's Congress's 2004 Directive, vesting the lay assessor with the rights of the judge.

What role do assessors play in the decision-making process today? An analysis of this may begin with a description of a typical day. The court had an office that administered the assessor program. When judges needed assessors for a case, they or their clerks filled out an assessor request form in the assessor's office stating the nature of the case and the proposed schedule. The administrator then called assessors from the roster.

Since most trials were held in the morning, many assessors arrived a few minutes before 9 a.m. There was no assembly room for them, so they usually waited in the corridor or in the court library linked to the assessors’ office. I noticed that a female assessor in her fifties usually arrived earlier than others and diligently cleaned the library and office. The administrator later told us that this assessor attended the highest number of trials. Other assessors seemed familiar with one another; they chatted casually about topics unrelated to the court trials. Criminal trials usually started on time, to coordinate with the detention center from which the court took the defendants, while civil trials often started late, depending on when the litigants arrived. I also saw several judges come over to the office, looking for the assessors of their previous cases to sign the deliberation minutes. When the assessors were not available, the judges left a note at the office, reminding the assessors to visit their offices later.

Just before the trials started, the judge asked the lay assessors to enter the courtroom. The judge, in his or her opening remarks, mentioned only the names of the assessors when introducing the whole tribunal to the litigation participants. The lay assessors normally did not know anything about the case in advance. While the law states that lay assessors are vested with the same rights as judges, it was clear that they did not have access to the case dossiers. Often they had not been able to learn enough about the cases, and consequently had to figure out elements while simultaneously listening to the testimony and dialogues during the trial. Unlike an American or English trial, the presentations were not designed to facilitate understanding for a layperson without knowledge of the investigative file. In criminal cases, the opening statement from the prosecutor was often hastily read aloud, which did nothing to clarify the trial for the uninformed. No copy of the charge letter from the prosecutor's office was dispatched to the assessors. In civil cases, the judges often asked both sides of the litigation to raise their points and evidence, making the process easier to understand. In both types of cases, the judges’ role was dominant; despite some adversarial elements injected into the trial procedure beginning in the 1990s, the trial process has remained inquisitorial (He & Reference He and Hang NgNg 2013). Nonetheless, for all the hearings that I witnessed, few judges made any effort to inform the assessors in a way that would help them understand the case. Most judges behaved as if the assessors were non-existent.

Court W had 42 people's assessors, chosen from 83 applicants. Table 1 indicates their demographic characteristics. Article 8 of the National People's Congress Directive states that assessors are to be selected from a pool of self-nominated candidates, as well as from those proposed by “the work unit or the organization at the place of the citizen's permanent residence.” The assessors are to be chosen from among the members of this pool by the local courts, and confirmed by the local People's Congress (Article 7). In reality, the assessors were recommended through three channels: self-nomination, community, and the court. During early implementation of the institution, the court had to seek out assessors, due to inadequate applications. Many assessors at that time were the relatives or friends of the judges. The applications are inadequate partly because the general public knew little about the nature of the assessors’ service. Several law school graduates responded, mistaking it for a full-time job.

Table 1. The Sociological Characteristics of Assessors in Court W

Many assessors were selected because they had connections with the courts (Zeng & Reference Zeng and WangWang 2007). While the National People's Congress Directive states that both the court and the judicial administrative branch shall jointly select the assessors before being finally approved by the local People's Congress, the court had the final say. After all, the assessors worked for the court and were financed and administered by it as well. Of course, the court also respected the recommendations of neighborhood committees and other government branches due to a close working relationship between the court and these organizations.

The law states that people's assessors are to have their expenses paid and to be provided with a stipend if they do not receive a regular salary from their employers (Article 18). In reality, the honorarium for attending each case was fixed. At the time of the fieldwork investigations, Court W provided 35 yuan for one case.Footnote ⁵ The amount of the honorarium varies across regions in China, depending on the required service, local living expenses, and budget availability. In a nearby city, for example, the honorarium reached 60 yuan, but involved more work for the assessors, such as compiling dossiers and delivering documents (see Zeng & Reference Zeng and WangWang 2007). Although 35 yuan was not high, it was attractive for the unemployed and for retirees without family commitments. Most of the interviewed assessors took the job mainly for the honorarium. In a retired assessor's own words, “You sit back and relax on the bench for roughly two hours, and the honorarium is enough for food and fruit. Why not?”

The gender distribution shows that 76 percent of the 42 assessors were women. These numbers indicate that the lay assessor institution in the Chinese court could also be considered a female institution (Reference MachuraMachura 2003: 133). The service is not demanding or strenuous, but carries some prestige and offers an opportunity for social connections. Most of the assessors apparently cared about the title and the symbolic political prestige.

The level of formal education among the interviewed assessors was high; only one had not received an associate's degree (大学专科) as required by the law, 29 percent held a bachelor's degree, and one even held a master's degree. At 37 percent, white-collar workers formed the biggest occupational group, followed by government officials at 31 percent. The rest of the assessors were cadres from rural areas. In terms of age, 24 percent were older than 50, and 48 percent were Party members. These numbers are consistent with the findings of Reference Zhang and Yu 张永和 &于嘉Zhang and Yu (2009), who studied the situation of another district court in Sichuan province.

Disproportionate Participation

The demographic characteristics of these assessors, however, do not reveal who actually attended the cases. Although the National People's Congress Directive stipulates that the assessors shall be randomly selected for cases (Art. 14), actual participation in court hearings was concentrated in a tiny proportion of assessors, sometimes called “professional assessors” (陪审专业户; Zhang & Reference Zhang and Yu 张永和 &于嘉Yu 2009: 110–13). Of the 42 lay assessors on the roster, 19 were marked “busy,” “pregnant,” or “sick.” For the rest, the record indicated that they participated in the assessing work disproportionately (Table 2): three of them participated in more than 100 cases, while seven of them attended fewer than 20 cases.Footnote ⁶

Table 2. Cases Involving Assessors in Court W in 2011

The reasons for this lopsided distribution were straightforward. Some assessors were busy with work and family commitments, and therefore had a tendency to avoid service. Other assessors were retired or approaching retirement. They were enthusiastic about the honorarium, especially those who could not find a better pastime.

The court and the judges tended to use those assessors who were both available and cooperative for the sake of administrative convenience. Upon the request of the judges, the assessor administrator had to find assessors. If the court were to follow the law and select the assessors randomly, several hearings would likely have to have been postponed. This delay would have caused significant trouble for both the judges and the litigation parties. Therefore, the judges had to rely on those lay assessors who were consistently available. If an assessor was not available for a couple of cases, the administrator would stop calling him or her. I noticed that the court administrator became nervous when scheduled lay assessors failed to appear.

Availability of the assessors was thus a primary concern for the court; the assessors who were free and lived nearby were the best choices. Of course, the more they worked with the court, the more familiar they became with the court requirements, and so the more likely they were to be called in again. Clearly, several judges were familiar with some of the lay assessors and vice versa. Indeed, some judges even made explicit which assessors should be called in for a specific case, since working with them seemed pleasant and efficient. Previous cooperation or confrontation between judges and assessors was taken into account. However, the lay assessors had their own memories and consequent expectations. As will be shown, some assessors were more willing to work with those judges who respected them. Overall, lay assessors had to heed to the needs of the courts and judges to be called in frequently. As a result, a few familiar faces were always on the bench (China Youth Daily 2014).

Article 10 of the National People's Congress Directive stipulates that it is both a right and an obligation for assessors to participate in adjudicative activities. The law outlines penalties for those who do not participate as required by the courts, including the revocation of the assessor's appointment. However, few assessors have been dismissed from duty, because initiating such a process requires the approval of the local People's Congress, which is troublesome for the court. In the next round of the selection process, the court tended to appoint only those who were available more often.

The phenomenon of disproportionate participation thus existed widely. In Court W, it persisted into 2013, when the honorarium for each case was doubled. With higher honoraria, the incentives to attend cases increased, but the pattern remained—some assessors still tended to avoid service, and the court still wanted administrative convenience.

Decoration in Trials

Through both observations and interviews, I found that few assessors raised questions during the hearing process. This result is consistent with reports published in Chinese. A survey based on 292 criminal cases finds, for example, that 98.31 percent of lay assessors did not raise any questions during hearings and, 69.49 percent did not have verbal exchanges with the adjudicating judges (China Youth Daily 2014).

The major reason behind this reluctance is that since they are denied access to the dossier in advance, and the judge makes no effort to help them in this regard, lay assessors often do not have a level of understanding that would enable them to explore alternatives to the questions that the presiding judge has raised (cf. Reference MachuraMachura 2001: 459–60). On the other hand, lacking information about the case forces them to listen carefully to understand it; developing useful questions is difficult when one is occupied by simply trying to understand what is going on. Some assessors admitted that they barely understood the issues. The assessors were also afraid of making mistakes. Many of them believed that the hearing process was solemn, and that any mistake might stain such solemnity.

Assessors were not always taciturn, however. For civil and family cases, experienced assessors frequently participated in mediation. The formal president of the Supreme People's Court mentioned that more than 80 percent of the cases involving lay assessors are closed with settlements (China Youth Daily 2014). As I witnessed, some lay assessors started the mediation process once they had learned the issue in question, even before the formal hearing. Their goal was to facilitate the settlement through persuasion. This outcome often occurred when the judge was young. The persuasion of the older assessors was effective—they were more experienced in family issues. According to the judges, these older assessors seemed to have special ways of using vernacular and body language to convey the purpose of the laws. Some judges envied the seamless relationship between the assessors and several litigation parties. The litigation parties also seemed more susceptible to the older assessors’ suggestions. The assessors also relished this moment, becoming meaningful participants in the trial, instead of mere spectators.

Another situation in which the assessors frequently spoke occurred at the end of the criminal trial, usually during juvenile trials. An assessor in his early sixties who had participated in more than 300 cases said, “During the last stage of the trial, the judge often asks if the defendant has anything to say, and the defendant usually says nothing. I will then start educating the defendant. ‘You admitted that you did these horrible things. Do you not feel contrition? Do you feel like apologizing to the victim? Your parents have worked so hard to bring you up and they attended your hearing because you committed a crime. Do you not feel guilty? You just have nothing to say? Aren't you going to take this lesson and start a new life?’”

Echoing the practice in East Germany in which lay assessors spoke to fellow factory workers or neighbors about proper socialist legal consciousness (Reference BuchholzBuchholz 1986), this preaching inside the courtroom sounded paternal. But neither the mediation efforts nor the moralistic preaching constrained the power of the judge or streamlined the trial procedures. The assessors acted to help the judges accomplish their goals—to either reach a settlement or to confirm the righteousness of the decision.

Fictional Deliberation

The deliberation process is key to evaluating the role of the assessor institution in other jurisdictions. Article 1 of the National People's Congress Directive stipulates that “people's assessors are to have the same rights as judges,” and Article 11 states that the cases on which assessors sit are to be decided by the majority vote. In reality however, this process was fictional or nominal; both the interviewed judges and lay assessors stated bluntly that, in most situations, the lay assessors were only asked to sign the so-called “deliberation” minutes. The minutes were prepared by court clerks, and some statements were attributed to the lay assessors. The most commonly seen word from the assessor was “agreed.” Sometimes, the assessors were asked to do “the makeup signing” (补签)—to sign the minutes after the judgment had already been announced and all the files bound. A court clerk even suggested that this was inevitable for administrative convenience; if they signed the minutes first, it would make later changes troublesome, since high-ranking court officials might change the decisions, usually through oral instructions. To avoid contradictions between the instructions and the minutes, there was no point at which to prepare the minutes earlier. Except for cases being appealed, signing for other assessors, also known as “vicarious signing” (代签), was allowed.Footnote ⁷ In other words, the decisions had been made before the assessors signed. Indeed, most assessors signed the minutes quickly, not knowing the decisions. This phenomenon was largely taken for granted and only a few lay assessors seemed embarrassed for being excluded from the decision-making process.

This phenomenon was widespread in Court W. Assessor Ge, who had participated in more than 250 cases over the past five years, had a superb edge as an assessor—he was retired and lived next door to the courthouse, and was therefore always available. When asked if he had ever been invited to participate in deliberation, he said, “No. But the judges are quite respectful. They often remind me to have a look at the minutes to see if there is anything inappropriate before signing. Occasionally they invite me to their offices for my opinions on cases, or on whether or not their language or protocol in a hearing is appropriate.”

In addition to his advantage in terms of availability, maintaining a good relationship with the judges was a key factor in Ge's frequent invitations to hearings. His philosophy was that an assessor should place himself in judges’ shoes. In his own words: “I shall share their difficulties, think for them, and protect them.”

Regardless, he was never asked to sit down with the judge to deliberate a case. For all the cases he had attended, he could think of only two in which his suggestions had counted. In the Beggar Case, his proposal had been accepted because his suggestions took the judge's needs into consideration—jailing the defendant would have caused further trouble for the judge. Moreover, in this case the judge needed him; since it was difficult for the judge to alter the suggested sentencing of the prosecutors, Assessor Wan was asked to convince the prosecutor. Due to the effect of status recognition (Reference MachuraMachura 2001: 466), ironically Wan was proud of himself for being used.

While a complete lack of deliberation exists in many parts of the country, my interviews with judges suggest that in Jiangsu, Guangdong, Sichuan, and Hainan, lay assessors are sometimes invited to formally participate in deliberation after the a hearing has been completed. A major reason behind this variation is that in these provinces, the courts, buoyed by sufficient budgets from local governments, can afford higher operation expenses for the lay assessor institution. Having a formal deliberation means that an assessor has to visit the court twice for each case.Footnote ⁸ The honorarium for each case in Hainan, for example, was 120 yuan, adequate for commuting expenses. In several provinces, lay assessors were only informally consulted by telephone.

Whether formal or informal, by and large the deliberation remains fictional. To avoid being outvoted by lay assessors for example, a Hainan court only invited one assessor for a collegial panel, making sure the judges remained the majority. In a Sichuan court, the judge often asked one assessor to express his or her opinion first. If the assessor's opinion happened to be different from the judge's, the judge would jump to express his opinion, to influence the second assessor (Reference Zuo, Tang, Wu 左卫民 and 吴卫军Zuo et al. 2001: 80). A Guangdong court deliberately invited two or more assessors for cases involving difficult litigants. The victims of medical malpractice cases for example, are always skeptical that the judges are biased against them (Reference LiebmanLiebman 2013); any unfavorable judgment from the courts could trigger protest. In one case related to a man who became comatose when treated by a hospital, four assessors and one judge determined the compensation. In another case in which a man in his seventies deserted his daughter three decades prior, but sued the daughter for a maintenance allowance, the court set up a panel consisting of four assessors. During the hearing, the four assessors grilled the man on why he had abandoned his daughter. Morally humiliated by the assessors, the man caved in for a settlement. The president of the Guangdong court grinned when sharing her tactics with us—letting lay assessors make the decision pacified these difficult litigants. She also mentioned that due to the related inconveniences, each year fewer than ten cases, out of more than 10,000 in the dockets of her court, were resolved by four or more assessors. Clearly the courts retained the final say on which cases would have assessor participation, and how many and which assessors to invite.

Submissive Assessors

Why are assessors willing to sign deliberation minutes without participating in the deliberation and without reading the minutes? Are they not afraid of being held responsible? Few assessors I interviewed seemed worried: the process simply meant attending the hearing, signing the minutes, and claiming an honorarium. Every decision was the judge's, and if anything, the judge was to be held responsible. This belief was reinforced, since no assessors were ever punished for signing the minutes without deliberation.

One assessor, a retired bureaucrat, offered his own reason for not worrying:

Being submissive does not mean that all the assessors were happy about the practice. When asked to comment on the view that lay assessors do not know the law and thus should not participate in deliberation, one assessor said, “Nonsense! Even if I do not know the law, do I not understand the facts? Having been an assessor for many years, am I not able to compare the decisions? Sometimes inconsistencies exist within one case; some defendants with more serious offences are handed lighter penalties. Is that not clear? One real reason to exclude us from deliberation is corruption!”

“Why did not you report the case to the court president?” I asked. The National People's Congress Directive states that, if an assessor disagrees with a panel's decision, their dissenting vote shall be recorded, and the assessor can request that “the president of the court” consider submitting the case to the adjudicative committee “for discussion and decision.” “Come on!” the assessor replied. “I still want to keep this appointment for a few more years!”

While most assessors kept one eye closed to the inconsistencies detected, a few were concerned. One female assessor said, “Sitting with the judge in the hearing process, the litigation parties believe we all participate in the decision-making process. But we are only asked to sign something we are not even aware of. Our signature suggests that we made the decision. If something is wrong, we have to shoulder responsibility together with the judge. We may lose pension money for this. So I only work with the judges who at least explain to me the rationale behind their decisions. Unfortunately, only two judges in Court W do that, and that's why I am called in less for this job.”

For those who were unhappy about being excluded from the deliberation process or being asked to sign the minutes without reading them, there was little recourse. The lay assessors were intimidated by the power and knowledge of the judges. Many of them feared that they would never be called in again should they earn a reputation for uncooperativeness. Moreover, those who were skeptical of the practice made themselves less available. Thus, the courts relied on those who never questioned the practice of the judges. For these reasons, some lay assessors tried their best to work around the schedule of the judges, and even to clean the office for the judges.

Unchallengeable Judges

Even if some judges were open to considerate, albeit different, opinions, they are much less tolerant when assessors challenged their authority, though these incidents rarely occurred. “No” was the standard answer given when judges were asked whether they had been challenged at all by lay assessors during their careers, and when assessors were asked if they had ever challenged judges. I found only three exceptions, one from a judge and two from lay assessors.

In a property dispute (hereafter referred to as the Property Case), the plaintiff sold her right to buy a subsidized apartment provided by her work unit to her colleague for 10,000 yuan in 2000, which was more or less the market price. Such transactions were common in China. However, housing prices had unexpectedly tripled over the decade after the transaction. Citing a law forbidding such transactions, the plaintiff sued to invalidate the transaction. Both parties, however, agreed that they had voluntarily engaged in the transaction. It turned out that the defendant was a friend of one lay assessor on the panel adjudicating the case. The assessor then expressed her view to the judge after the hearing: the claim should be rejected, and if the plaintiff really wanted the apartment back, she should have to pay 70 percent of the current market price (30 percent as the depreciation for the decade passed). The judge, believing that the assessor had taken a favor from the defendant, was annoyed. “You are only an assessor. Why do you need to say so much?” Offended by this statement, the assessor sought the help of another male assessor. Both reported this to the division head, who ordered the judge to hold a deliberation. In the deliberation, the two assessors outvoted the judge. Several days later, the female assessor was asked to sign the deliberation minutes. As usual, she signed the minutes without first reading them. She later told us that she had been so nervous that she did not even read the minutes before signing; she was afraid that she had offended the judge. When the male assessor was asked for a signature, he was invited to the judge's office. With smiles, the judge handed him a cigarette, then politely explained to him that “the court leader” did not agree with the assessors’ opinion. Surprised by this treatment and reluctant to ask who “the leader” was, the male assessor promptly signed the minutes. Only from the litigation parties did they find out that the decision still reflected the judge's opinion.

The second case concerned a judge in her early forties who vividly recalled a 1991 case from the beginning of her career as a court clerk in a dispatched tribunal. The panel for a coal transportation case (hereafter referred to as the Coal Case) had been composed of the tribunal head and two lay assessors from a nearby cotton factory. According to the law, a clerk's opinion did not count. However, since the clerk was the one who processed the case, the tribunal director asked her to express her views first in the deliberation. Immediately after she gave her opinion, the tribunal director expressed an opposing view. To everyone's surprise, an assessor said that he agreed with the view of the clerk. The clerk recalled, “When the assessor expressed his views, everyone in the room was shocked. It seemed that time stood still. As soon as the assessor left the room, the division director murmured, “Isn't the assessor out of his mind?’” Later on, the clerk found that, despite the deliberation outcome, the decision still followed the tribunal head's opinion.

The third case concerns an assessor who, before retirement, had been the deputy head of a district Bureau of Justice. It was a criminal case handled by a junior female judge in which a lady had allowed her extramarital boyfriend to withdraw pocket money from her debit card (hereafter referred to as the Boyfriend Case). Later, their relationship soured, and she realized that her boyfriend had withdrawn 80,000 yuan from her account, a large amount by local standards. The boyfriend was initially charged for fraud, but the sentence was later changed to theft. The assessor was curious about the outcome because intuitively he felt that it should not be a criminal case; rather, matters should be considered settled as long as the boyfriend returned the money. When the assessor was asked to sign the minutes as usual, he found “his” opinion was placed at the very beginning. He said to the young judge, “I did not say that,” then passed the minutes back to her. The judge instantly turned pale. She stammered, with an embarrassed expression, “That…that was the decision of the court leaders; it was even reported to the adjudicative committee!” At the end of the day, the assessor still signed the minutes because he “did not want to put this lady judge on the hot seat.”

All three cases, though different in particulars, suggest that judges were rarely confronted. In the Property Case, the confrontation occurred because the assessor was pressured by the litigation party with whom she had been connected. In the Boyfriend Case, the age difference between the assessor and the young female judge may have emboldened the assessor and reduced the power distance (Reference MachuraMachura 2007) between them, making it easier for the assessor to speak out. The discrepancy between the charges and his common sense also made him wonder about the outcome. In the Coal Case, the confrontation was incidental and unexpected. These incidents occurred so rarely that the clerk recalled these details after two decades. This rarity is also why the judge asked, “Is the assessor out of his mind?” In the Property Case, the assessors themselves felt nervous after they had challenged the judge—they knew that they had strayed outside of their appropriate ambit. The young judge in the Boyfriend Case, when challenged, almost lost her composure.

Consistent with the discussions above, there was no meaningful channel for the assessors’ voices to be heard, and it seemed as if the whole court system worked against them. To offend the judges would have put the assessors’ jobs at risk, so they preferred to stay quiet. The assessor who shared the Boyfriend Case with us, as well as several other cases in which he believed that the judges had not behaved properly said:

In the Eyes of the Judges

Because the above evidence mainly comes from interviews with the assessors, judges’ views may help form a more comprehensive picture of the situation. Most judges interviewed believed that the assessors were mainly present to fulfill the procedural requirements. Partly due to recent skyrocketing caseloads, the lack of judges had become a headache for both rural and urban courts. Many cases that could have been handled by one judge through the Summary Procedure were not closed on time. Once the three-month timeframe allowed by the Summary Procedure passed, the cases had to go through the Normal Procedure, which requires at least three members for the Collegial Panel. Finding three judges to form the panel could be challenging; most judges were busy with their own cases and some court divisions simply did not have enough judges. For example, the administrative law division (mainly dealing with labor cases since the court received a few administrative cases) of Court W had only three judges, including the division head. Since the division head did not handle cases in person, relying on assessors became inevitable. In rural areas, courts often lacked enough judicial staff to deliver documents and enforce judgments, given their extensive jurisdictions and scattered population; many lay assessors were therefore asked to perform the tasks of judicial clerks (Reference LiuLiu 2007, Reference Liu2009: 241–45).

Consistent with the accounts of the assessors, few judges believed that the assessors had actually participated in the decision-making process. They rarely consulted the lay assessors while evaluating evidence or considering the capacity or character of defendants.Footnote ⁹ They believed consultation was unnecessary, since in a significant percentage of cases, assessors understood neither the laws nor the issues. To deliberate with lay assessors who could not focus on the issues did not make sense. A judge in her forties shared an experience in which two lay assessors informally expressed opinions differing from hers:

The judges also believed that it was unrealistic to have another meeting aside from the hearing date. Since many lay assessors come to court only for the honorarium, asking them to visit the court once more would defeat the purpose; the honorarium would become unattractive due to the extra commuting costs.Footnote ¹⁰ Excluding deliberation from the process has thus become the standard practice, at least in Court W. Some judges said that when the National People's Congress Directive was recently promulgated, they did ask the assessors to participate in the deliberation, but they soon found it unnecessary. Another judge said, “The biggest problem is that they do not know how to evaluate evidence, let alone the application of the laws.” At the same time, few judges found it necessary to make the assessors aware of the outcome of the cases. Rarely did they hand the assessors a copy of the court judgment.

Since the only tasks the judges asked the assessors to do were to sit on the bench and sign the deliberation minutes, few judges believed that the assessors should or could share any responsibility. The tacit understanding was that the assessors did not enjoy substantive power, nor should they be held responsible. “We are square—we need them to fulfill procedural requirements; they come for the honorarium.” “The honorarium they receive covers little more than the commuting costs. How can we ask them to shoulder any responsibility?” Some judges believed that the quality of the assessors was too poor to be held responsible for their decisions. “Some assessors take a nap or play with cell phones during the hearings; some are more eager than the litigation parties to sign the hearing minutes so that they can leave the courthouse immediately afterward; some want to get a ride from the litigation parties; some leave the hearing before it is over. Seriously, how can this group of people be held responsible in any way?”

More fundamentally, because the judges nonetheless have to be responsible for the decisions made, they are unwilling to share their decision-making power with lay assessors. One judge said, “We have to be accountable for the decisions—we might be punished for wrongfully decided cases and our performance is assessed against other criteria, such as the appeal rate and the remand rate. How can we give up the dominant role in decision making to the lay assessors who cannot even understand the issues?”

The First Whammy

The Chinese institution exhibited problems similar to those in other mixed tribunal institutions—only more serious, due to the knowledge gap between professional judges and laypeople. As argued by Reference KutnjakKutnjak Ivković (2007), assuming equal influence between professional judges and lay assessors in a mixed tribunal is unrealistic; the decision must be made in accordance with existing legal rules, and the decisions may be appealed by the litigation parties. This situation inevitably places judges in more influential positions due to their legal education and experience. In German courts, for example, professional judges often persuade lay judges to accept their preferred decisions (Casper & Reference Casper and ZeiselZeisel 1972; Reference RennigRennig 2001). Similar patterns exist in China. For a few exceptional judges who regularly held deliberations with the lay assessors, the major part of the deliberation was to explain the legal rules and rationales to them. This pattern could be seen in Jiangsu, Hainan, and Sichuan provinces, where formal deliberations are held. Overall, given their relatively minimal legal knowledge and training, and since many lay assessors could not follow the legal issues being discussed, they offered little legal analysis. Few judges thus bothered explaining legal terminology such as “anticipatory breach,” or elaborating on the politics behind the cases to the assessors, as shown in the Lease Case. In many cases, explanations are simplified to “this is the decision of the adjudicative committee” (the Boyfriend Case), or “the court leader did not agree with the assessor's opinion” (the Property Case).

While lay assessors and judges were equal according to the law, their actual influence during trials and deliberations differed markedly. Procedural rules placed the judges in a more powerful position, a phenomenon widely shared in jurisdictions with mixed tribunals (Reference KutnjakKutnjak Ivković 2007). The judge chaired the hearing process and was the dominant examiner of the witnesses (He & Reference He and Hang NgNg 2013). The judge also accessed the case dossier in advance, but as in Poland and Croatia, (Reference KutnjakKutnjak Ivković 2007: 447) assessors were denied access. Indeed, assessors were usually called upon no more than one working day before the hearing, and sometimes hours before the hearing if the originally scheduled assessors could not make it. They consequently may not have been able to understand the issues of the case during the hearing process; some could not even keep themselves awake on the bench (China Youth Daily 2014).

The Second Whammy

The gap in legal knowledge and status between professional judges and lay assessors was only part of the explanation for the pathetic situation of lay assessors in Chinese courts. This situation must also be understood in regard to how the regime reined in judges who, in turn, controlled lay assessors (Reference LiuLiu 2009). The authoritarian nature of the Chinese regime determined that lay assessors could not have real independent power, however rarely they attempted to exercise it. This situation is what I call the second whammy.

Existing studies show that the regime has controlled the operation and outcome of the case handling process (Reference HeHe 2004; Reference HeHe 2012, Ng & Reference Ng and HeHe 2016; Reference RandallPeerenboom 2010; Reference Su and HeSu & He 2010). This oversight was accomplished through performance-assessment exercises, approval procedures, and institutional setups such as adjudicative committees and political-legal committees. Specifically, the responsibility systems (目标责任制), that evaluate and discipline judges with quantified measurements were launched. The performance of judges was to be adversely affected if litigants were to file a successful complaint against them. In some cases, court decisions were subject to the media's scrutiny (Reference LiebmanLiebman 2005). In addition to the general requirements specified in the Judges Law (Amended in 2001, Articles 32–35), more detailed regulations, such as measures for holding adjudicating staff responsible for incorrectly decided cases (错案追究制; Supreme People's Court 1998), have been issued, with sanctions including monetary fines and negative notations in a judge's career file (Reference HeHe 2009a).

A judge therefore needed to understand not just the laws, but also the informal rules and logic required to navigate the legal, political, and bureaucratic maze (Reference HeHe 2007; Reference LiuLiu 2008). It was rather difficult, if not impossible, for lay assessors equipped with little legal knowledge to appreciate all of these implicit areas of decorum. While judges had room for leeway or innovation (Reference HeHe 2013; Reference SternStern 2010) under specific circumstances, they knew very well where the boundaries lay. Overstepping the line could have been disastrous for their careers (Reference ShenShen 2003). Should judges share their decision-making power with lay assessors who would be held responsible for the decisions deemed unacceptable by the Party? Lay assessors were not court staff, and were therefore not subject to the courts’ assessment exercise; many of them are part-time or half-retired. How can the courts hold them responsible? The jury system works well in democracies in part because jurors work to shield judges from politics, and judges cannot be held responsible for jurors’ decisions (Reference LempertLempert 2007). However, in China no lay assessors could shield judges from taking responsibility for decisions made in court. As a result, judges controlled lay assessors for self-protection: whether to choose them for specific cases, whether to invite them for deliberation, and ultimately what that decision was. Indeed, to explain to the assessors all these laws and informal rules was a daunting task, since many subtleties were hard to communicate (the Lease Case). Therefore, many judges eliminated deliberation and decided the cases alone. The institutional arrangement meant that in no way could lay assessors be vested with independent power in the decision-making process.

Only in these contexts can we understand the ironclad control that courts and judges had over assessors. Disproportionate participation, after all, is a result of the courts’ control; they handpicked cooperative and available assessors. The judge decided whether to hold a formal deliberation and whether to accept the assessors’ opinions. Assessors were given the chance to express their views only when the judges had unusual need—essentially, only when the judge needed them to facilitate settlements, deal with difficult litigants, or communicate with the prosecutor. While the law states that the dissenting opinion of lay assessors shall be recorded in the minutes, otherwise that they have the option of voicing their dissent to the court officials, these stipulations exist only on paper, since assessors’ positions were at risk if they did, in fact, dissent.

This situation is also why, on the rare occasions in which lay assessors disagreed with judges, their disagreements were ignored. Here, the political dimension of the institution showed its true colors. In the Property Case, for example, the assessors were bold enough to express their dissenting opinions to the division head. Their opinions were discarded. More important, the judges did not feel embarrassed since this was the modus operandi. It was the assessors who felt scared and embarrassed, since they knew that they were not supposed to take the laws literally. The male assessor in the Property Case felt so flattered when the judge handed him a cigarette that he forgot to ask which court official had disagreed with him. In the Coal Case, the judge believed that the assessor was out of his mind because the assessor had taken the wrong side. Only in the Boyfriend Case did the judge seem embarrassed, and that was because she was less experienced.

In short, the informal rule trumped the formal law. As Reference SelznickSelznick (1966) argues, unlike formal rules, informal rules have real power and control over the decision-making process. Moreover, the three aforementioned rare exceptions suggest that, even if judges were challenged, they still determined the outcome. They could explain to the assessors that the decision had been altered by the court leaders or the adjudicative committee, or they could simply change the decision, with or without altering the minutes. Each of these practices reveal a hierarchical power relationship between the judge and the lay assessors, with the judges’ monopoly being the final decision-making power. They determined both the deliberation procedure and the outcome, regardless of what the assessors opined.

In Hainan, Jiangsu, Guangdong, and Sichuan, where the formality of the assessor institution was observed to a greater extent, formal deliberations and dissenting assessors were seen more often. However, several courts only invited one assessor to join two judges in the Collegial Panel, ensuring that the court retained the majority vote; others only invited assessors to deal with difficult litigants—assessors could decide the case, but only in the way the courts wanted. Changing the institutional arrangement to allow assessors to express their opinions did not really alter their marginality in the decision-making process. The courts had the final say on whether to use assessors, and if so, how many of them to use. In short, regardless of whether formal deliberation and voting exist, assessors enjoyed little power. Ultimately, this second whammy determined the fate of the assessor institution in China.