从评议制衡探究陪审权运行的规则构建——基于J院“大陪审”制的实证分析

On the Balance between Judicial and Jury＇s Power and the Establishment of a Sound Mechanism for the Exercise of Jury＇s Power

《全国人大常委会关于完善人民陪审员制度的决定》实施已经十年,但我国的陪审制度依然存在一些问题,＂驻庭陪审＂、＂编外法官＂、＂陪而不审＂、＂审而不议＂等现象的显现不同程度影响了人民陪审员功能和价值的实现。各地法院试图通过引入人大代表陪审员、专家陪审员等措施加强陪审权独立运行空间,提升陪审员在合议庭中地位。但是实际运行过程中,仍显现出诸多理论悖论与实践障碍,效果并不理想。在此基础上,浙江省J院探索并实践了＂1名法官＋4名陪审员＂的＂大陪审＂制,试图构建有效解决＂陪而不审＂困境且符合陪审制度本质要义的全新模式,该种模式的顺利推行需要通过修改现行法律法规、完善相关配套机制形成合力。

It has been 10 years since the promulgation and implementation of Decision of the Standing Committee of the National Peoples＇ Congress on Improving the People＇s Jury System. Driven by the NPC and the Supreme Court, effective measures have been taken by people＇s courts of all levels all around China to ensure actual, full and effective participation by Jurors throughout the hearing so as to legally and effectively perform their roles and exercise their respective rights empowered by law. As a result, the quality and quantity of case where Jurors are involved are improved and increased. Given the above, further reforms are still needed to improve China＇s juror＇s system, which is flawed by a number of factors, including the substitution of the independent jurors with quasi-judges（who is not independent from the court jurisdiction system）, overlapping of the working scope of jurors and the judges, or the lacking of power and actual participants by the juror throughout the hearing. Such factors have, to some extend, held up the implementation and the functioning of the whole system. With the aim of giving the assessors greater independence during the performance of their roles and to enhance assessors＇ roles throughout the court hearing new participants are introduced by some local courts into their own assessor systems. Nevertheless, it turns out that in the real-case scenario,the system is not upgraded as expected – the implementation of the reform is hurdled by built-in theoretical and practical barriers.Recently, the people＇s court of city J of Zhejiang Province launched a pilot scheme, under which a mechanism of ＂one judge plus four assessors＂ is designed to solve the problem of juror lack of power throughout the hearing. This pilot scheme is brand new and pioneering among the national court system. However, its success depends significantly on the change in the current legal regime, amendment in relevant legislation and regulation, as well as the building up of a supporting system, which operates consistent with such amended laws and regulations.