域外陪审制度模式评介与借鉴

Foreign Jury System and its Implication to China's Judicial System

陪审制度主要有两种不同模式,即陪审团模式和参审制模式。每种陪审模式的形成都离不开其独特的文化传统和社会因素,并受到所在国家社会治理结构模式及法治特点的影响。在历史演变中,陪审团模式和参审制模式从此消彼长转变为相互借鉴和融合。这两种陪审模式在制度运作、审理范围和审理成本、文化传统上有很大的不同,导致两种陪审模式差异明显,运作方式迥异。中国需要借鉴英美法系陪审团制度的优点,不断克服参审制的弊端,进一步明确法官与陪审员的分工,防止陪而不审;进一步扩大陪审员的范围,促进司法民主和司法公正;进一步丰富陪审案件的类型,实现陪审案件的多元化;强化当事人对陪审员的选择权,使当事人对陪审员的知情权得到保障;

There are two major modes in jury system： the jury mode and the assessor mode. Each of them is inseparable from its particular cultural tradition and social factors, and influenced by the governance pattern and characteristics of law in the countries in which it is applied. Through ages, the jury mode and the assessor mode have turned from being contradictory to being complementary and integrated with each other. These two modes are quite different in system operation, hearing scope, trial cost, and cultural tradition, which leads to sharp distinction between the two modes and complete difference in the way they operate. China needs to draw on the advantages of the jury mode in the common law system to overcome the drawbacks of the assessor mode：to further define the roles of judges and the jury to avoid the phenomenon that the jury does not play its due role in the trial; to expand the scope of the jurors to promote judicial democracy and justice;to further enrich the types of jury cases;to enforce the right of the concerned people to exercise their choice of jurors to ensure the concerned people are clear about the jurors;to strictly forbid jurors to read case files before the court trial to make the court trial real;to set strict rules for the selection of jurors and to ensure they play their due role in the trial.