I Introduction
Taiwan became the latest country to adopt lay legal decision-making when it passed the Taiwan’s Citizen Judges Act in 2020 and began holding lay judge trials in January of 2023.Footnote 1 It joined several other Asian countries in reforming its legal system to include citizens as decision-makers. In contemporary times, it might be surprising that many jurisdictions continue to rely on untrained citizens to decide criminal and civil cases.Footnote 2 With a few exceptions, most countries have a ready supply of professionally trained judges to decide the outcomes of legal cases. In fact, some countries have either abolished or severely restricted the scope of lay participation in their legal systems.Footnote 3 So why have so many others turned to the citizenry to resolve legal disputes? The example of Taiwan shows that even some countries with no history of lay legal decision-making are adopting new systems that incorporate lay citizens in contemporary times. Why do so?
Studies of lay legal decision-making have identified a host of values that lay participants bring to the task of legal decision-making.Footnote 4 Most obviously, citizen decision-makers are able to incorporate contemporary community values into their fact-finding. A group of individuals drawn from a cross section of the population is in a much better position to know the community’s sentiments and to consider them as they decide on the responsibilities and evaluate the behavior of the parties. Citizens also offer a measure of protection against legal professionals who may have become inattentive, jaded, or biased because of their earlier experiences with legal cases. Citizen participation has the potential to generate broader societal benefits as well, in that it can contribute to the transparency and legitimacy of the legal system and foster the spirit of civic engagement in those who take part.Footnote 5
Considering these benefits, perhaps it is no longer surprising that close to two-thirds of the world’s countries use lay citizens in some decision-making capacity in the resolution of criminal cases.Footnote 6 In a recent analysis of 195 countries (193 United Nations countries, combined with two additional jurisdictions, Hong Kong and Taiwan), Sanja Kutnjak Ivković and I found that 64 percent of the world’s countries, a total of 125 countries, used some form of lay citizen decision-making in legal cases.Footnote 7
The most common form is a mixed court of lay judges and professionally trained judges, the form that Taiwan has adopted, with seventy-one countries, including Taiwan, using this form of lay participation.Footnote 8 Next most common is trial by jury, in which the jury deliberates on its own to arrive at a verdict, practiced by close to fifty countries.Footnote 9 Two less common methods are lay courts, which operate outside the formal legal system, found in twenty countries, and lay magistrates, who decide cases either individually or in groups, in thirteen countries.Footnote 10
We discovered that the frequency and type of lay citizen involvement in legal decision-making differ across the continents.Footnote 11 It is highest in the continents of Australia and Oceania (93%), North America (78%), Africa (72%), and Europe (70%), and markedly lower in South America (33%) and in Asia (41%). The forms of lay participation are also notably different. In most continents, mixed courts are more common than juries.
That pattern is true in Asian countries. Twelve Asian countries use mixed courts: China, Japan, Kazakhstan, Lebanon, Malaysia, Mongolia, North Korea, Taiwan, Tajikistan, Turkmenistan, Uzbekistan, and Vietnam, whereas juries are used in the six countries of Hong Kong, Iran (in media cases), Myanmar, the Russian Federation, South Korea, and Sri Lanka.Footnote 12
Not surprisingly, mixed courts are more common in countries that follow a civil law tradition, while countries with a common law tradition are more apt to rely on jury systems.Footnote 13 Most of these systems of lay participation have been in use for some time. However, it is useful to examine the newly introduced systems of lay participation in Asia. They offer important lessons to us about the inter-Asian and global influences at work in the transplanting of legal institutions.
II New Systems of Lay Participation in Asia
Four Asian countries have introduced new systems of lay participation in the last several decades: Russia,Footnote 14 Japan, South Korea, and, most recently, Taiwan. This chapter explores the context and motives for introducing lay participation, and how each country debated and decided upon a specific form of citizen involvement in legal decision-making. The chapter also reviews research on the experiences with lay participation in these countries.
III Motivation to Introduce New Systems of Lay Participation
In each of the four countries, the adoption of new systems of lay participation occurred during a period of political democratization. Those who pressed for citizen decision-making in law emphasized how citizen involvement would promote democratic self-governance, create connections between the citizenry and the government, and improve public confidence in the courts.
Russia and former countries within the Union of Soviet Socialist Republics (USSR) provide a clear example of political upheaval leading to democratization and legal reform. Trial by jury has a long history in Russia, where it was first introduced in the 1860s. However, it was effectively abolished during the Bolshevik Revolution and eventually replaced by a mixed court of lay and professional judges, which prevailed during the Soviet period.Footnote 15 Jury trials were resurrected in Russia in 1993, after the collapse of the Soviet Union led to significant judicial and other reforms.Footnote 16 International organizations interested in promoting democracy in former Soviet countries provided advisors and external funding, which contributed to the development and launching of Russia’s modern jury system.Footnote 17
In Japan, during the same period of the 1990s, there was growing interest in reforming the legal system. The business community was frustrated by the slow pace of the country’s judicial process, inadequate numbers of individuals in the legal profession, and minimal alternative dispute resolution options. Rieko Kage writes that the Japanese business community was not especially interested in citizen participation, but they did constitute a powerful force demanding general judicial reforms.Footnote 18 The business community’s interest in reform converged with that of other groups. Japan’s remarkably high conviction rate of 99 percent had led one scholar to identify it as a “prosecutor’s paradise,”Footnote 19 raising concerns about whether professional judges were overly inclined to accept prosecution arguments even in cases with strong defense claims.Footnote 20 Reinforcing these concerns, reports surfaced about notable cases of wrongful conviction.Footnote 21 The Japan Federation of Bar Associations, which represents lawyers in private practice across the country, also pressed for reform, including the introduction of a jury system in Japan, as did members of the Research Group on Jury Trial, who had been encouraging a return to Japan’s jury system for years.Footnote 22 The Justice System Reform Council was thus created in 1999 to analyze and recommend legal reforms for the purposes of “clarifying the role to be played by justice in Japanese society in the 21st century and examining and deliberating fundamental measures necessary for the realization of a justice system that is easy for the people to utilize, participation by the people in the justice system … and other reforms of the justice system …”Footnote 23 After protracted and intense debate, it ultimately recommended that Japan adopt a mixed court system, Saiban-in seido. After a five-year period of preparation, the first trial was held in 2019. The intent of the legislation enacting Saiban-in seido was “to contribute to the promotion of the public’s understanding of the judicial system and thereby raise their confidence in it.”Footnote 24
In his summary of South Korea’s jury system, Park noted the “significant strides toward the democratization of the country” in the 1980s after political successes in challenging its oppressive military government; changes included direct election of government leaders by citizens and greater independence of judges.Footnote 25 By the 1990s, policymakers and activists urged the introduction of judicial reforms, including citizen participation in legal decision-making, “to enhance the democratic legitimacy of and public confidence in the trial processes.”Footnote 26
Finally, the debates over the form of Taiwan’s lay participation system tracked political divisions, as Kage explains, with the conservative KMT party inclined toward a mixed court system that would keep professional judges in control, whereas the opposition DPP endorsed a jury system in which jurors would deliberate independently of professional judges.Footnote 27 Ultimately, a mixed court system similar to that of Japan’s Saiban-in seido was decided upon. Interestingly, Taiwan’s Citizen Judge Act begins with the following language imbued with democratic concepts of popular sovereignty and transparency: “This Act is enacted to facilitate the participation in the criminal trial by both citizens and judges, enhance the transparency of the judiciary, account for the public’s opinions towards the law, promote the public’s confidence in the judiciary, and provide the public with a better understanding of the judiciary, so as to honor the ideal of popular sovereignty.”Footnote 28
Although the political, social, and legal circumstances differed, policymakers in all four countries were motivated by the potential benefits of a more democratically responsive legal process. An interesting question is whether democratizing the legal system by incorporating lay citizen decision-makers strengthens democracy more generally. Using a global database that included information about countries’ lay participation systems and their political characteristics, Sanja Kutnjak Ivković and I calculated the statistical associations between the presence of citizen participation in a country and country-level democracy indicators.Footnote 29 We discovered that countries with lay participation systems had significantly higher democracy scores.Footnote 30 The relationships between lay participation democracy measures were strongest and most consistent for countries with jury systems; the relationships were less consistent for countries with mixed courts as their form of lay participation. Of course, we cannot say from the statistical analysis alone that lay participation causes greater democratization. The causal arrow may go the other way; countries with strong democracies may provide the conditions for lay participation to flourish.Footnote 31
IV Inter-Asian and Global Influences
What is notable about these introductions of lay participation is the way in which judges, lawyers, and policymakers actively engaged in exploring different international models for lay participation. Of course, with two-thirds of global countries having some form of lay participation, there were multiple models to examine. We can also observe the operation of inter-Asian influence, as experts from Asian countries advised policymakers in other Asian countries about the advantages and disadvantages of different approaches.
In South Korea, a Judicial Reform Committee was established in 2003 to consider judicial reforms; its report recommended an “advisory jury” in part because of concerns about the constitutionality of a criminal verdict decided by non-law-trained judges.Footnote 32 Although Japan had not yet settled on its lay participation system, members of Korea’s Judicial Reform Committee were “well aware of the debates over justice system reform in neighboring Japan.”Footnote 33 South Korea introduced its advisory jury system in 2008; it reflects diverse global influences in that it includes features of both the United States (US) jury system (independent deliberation) and the German lay assessor system (opportunities to consult with the professional judge during deliberation).Footnote 34 Defendants must request a jury trial and a professional judge must approve the request, which over time has limited the number of jury trials.
In Japan, in advance of introducing the Saiban-in seido system, the Japanese Supreme Court engaged in a “study tour” of jury and lay judge systems around the world.Footnote 35 Furthermore, the Ministry of Justice established a Study Group on the Saiban-in System to review the implementation of the new system; members of the Study Group referenced a variety of global sources in their discussions. Rieko Kage analyzed the minutes of the Study Group’s eighteen meetings from September 2009 through June 2013; she found that their discussions included periodic references to practices in other countries.Footnote 36 The most frequent references – a total of 41 – were to practices in the US. Second in frequency were eleven references to the advisory jury system in South Korea.Footnote 37 Third most frequent were six references to the United Kingdom. Fewer than five references were made to the practices in Italy, Germany, France, Sweden, and Europe more generally. It is interesting to observe that the most common references were to countries with jury systems, rather than to countries with other mixed court systems like Japan’s. Kage found that study group members referenced the outside world on a variety of topics, including lay judge selection, the eligibility of cases to be decided by the lay judge system, the appeals process, and lay jurors’ psychological stress.Footnote 38
Taiwan began examining different models of lay participation as early as 1988. The Judicial Yuan sent officials on fact-finding trips to multiple countries around the globe, including France, Switzerland, and Austria.Footnote 39 Despite intensive study and discussion, no proposals were successfully launched in this early period.
Reinvigorating the debates in 2011, a committee chaired by Judicial Yuan Vice President Su included legal scholars who had obtained doctorates in different countries: two from the US, one from Germany, and one from Japan. The committee also invited scholars from Germany, Japan, and Korea to give lectures on their countries’ lay participation systems.Footnote 40 The “trial observer” system that emerged from the committee’s deliberations, however, met with strong objections.Footnote 41 The trial observer system created a mixed court of lay and professional judges; however, the votes of the lay judges were to be nonbinding, leading eventually to rejection of that model.
As Taiwan’s policymakers continued to debate the appropriate lay participation model for the country, policymakers drew on the experiences of both Japan’s mixed court system and South Korea’s advisory jury system, again revealing the role of inter-Asian communication in legal reform.Footnote 42 The Japanese lawyer Satoru Shinomiya, for example, visited Taiwan to lecture and consult with legal and policy experts about Japan’s Saiban-in seido. Based on Japan’s experience with a mixed court, Shinomiya proffered advice about how to create and maintain a successful lay participation system.Footnote 43
The lay participation reform process in South Korea, Japan, and Taiwan thus drew on models and practices from around the globe, as well as from other Asian countries. Through visits to other countries’ courts to observe trials with lay judges or juries, consultations with legal officials in other countries, and participation in international conferences and working groups, these legal actors and policymakers were engaged in the business of legal transplantation.
A “legal transplant” refers to the common occurrence of one country incorporating into its own legal system another country’s law, legal procedure, or legal institution, or even entire legal system.Footnote 44 Some scholars of comparative law object that the term “legal transplant” conveys the mistaken idea that a transplanted law or legal procedure will operate in the same way in a new country as it did in the country of origin. They suggest that referring to the process as “legal translation” more accurately captures the ways in which countries adopt but also modify laws and legal procedures from other countries to suit their own needs.Footnote 45 Because the four countries I discuss modified the approaches used elsewhere to create new institutions that fit within their own legal systems, these activities certainly qualify as exercises in legal translation.
V A Common and Distinctive Feature of Asian Lay Participation Systems: A Strong Role for Professional Judges
One noteworthy feature of the four systems of lay participation in Asia is that each of them preserves a strong role for the professional judges. In Russia, the trial judge has a great deal of power to shape the jury’s experience and responses. Rather than obtaining a jury’s general verdict of guilty or not guilty, the trial judge provides the jury with a list of specific questions about the evidence in the case. If there are apparent inconsistencies or errors in the jury’s responses, the judge can set aside the jury’s factual conclusions. During a jury trial, the judge may halt the proceeding and return the case to the prosecutor for further development of the facts and more investigation. In addition, appeals courts can overturn not only jury convictions but also jury acquittals. All these features create a relatively weak jury system that is vulnerable to political pressures.Footnote 46 In other reforms, the Russian government restricted the types of cases that juries may hear, in particular political crimes in which an independent jury might be considered to be most valuable (or most threatening, from a governmental perspective).Footnote 47
In Japan’s mixed courts, the most serious crimes must be tried by the mixed court; lay judges participate in both guilt and sentencing decisions; and (unlike South Korea) their votes are binding. These requirements suggest a robust presence for citizens. However, a mixed court system in which lay citizens and professionally trained judges decide the case together is likely to privilege professional judges’ voices. Sanja Kutnjak Ivković has written extensively about the advantages that professional judges hold in a mixed tribunal based on their legal expertise and previous experiences.Footnote 48 Research on agreement rates between lay and professional judges in mixed tribunals finds them to be extraordinarily high, suggestive of strong professional judge influence. Ironically, the vitality of lay judge input in mixed courts may depend on the willingness of professional judges to cede some of their advantages.
These four countries follow civil law traditions. I have previously written about the way in which some countries with civil law traditions and the institution of the jury trial shifted from independent jury systems to mixed tribunals:
In time, however, a number of civil law countries abandoned trial by jury, shifting to the mixed court approach in which lay judges and professional judges decide cases jointly. The dominant role of the presiding judge was seen as more compatible with the inquisitorial approach of civil law legal systems. Cynically, however, one must also note that a mixed tribunal offers an easier method of controlling unruly lay fact finders.Footnote 49
Finally, in South Korea, the jury system is “advisory” only.Footnote 50 The three professional judges presiding over the jury trial may set aside the jury’s recommended verdict and substitute their own judgment. In addition, under certain conditions, the presiding judge may enter the deliberation room to offer advice. If the jury is not unanimous, the judge must join the deliberation; and even when the jury is unanimous, the jurors may still invite the judge to join the deliberation if a majority of jurors agree to it. Research on the South Korean advisory jury has found extraordinarily high agreement rates between the jury and the judge, which is not surprising given the required intervention of the judge when the jury is not unanimous.Footnote 51
The robust role for professional judges in these new Asian systems of lay participation contrasts with the judge’s role in other countries that have recently adopted lay participation systems. Argentina’s new jury systems provide the strongest contrast. After one province introduced a mixed court system in 2004,Footnote 52 other provinces that later adopted lay participation chose a classic jury model rather than a mixed court.Footnote 53
VI Impact of New Systems of Lay Participation
The introduction of new systems of lay participation is a scholar’s dream. The structures and operation of existing jury systems were created and reified over many decades and even centuries, so that it is difficult as a scientific matter to identify the effects of the characteristics of lay participation systems. By comparing before and after the advent of a lay participation system, these new introductions allow us to examine how lay participation affects other aspects of the legal system, the outcomes of trials, the public’s support for the courts, and more.
The East Asian countries have facilitated scholarly assessment by providing data and information for regular evaluations of the introductions of their lay participation systems. Russia also collected data early on, but according to some researchers, it has become more difficult to track developments over time.
In Japan, there were numerous pre-implementation studies, including a remarkable 640 mock Saiban-in trials held in front of public audiences between 2004 and 2009.Footnote 54 In some of the mock trials, the mixed court’s deliberations were videotaped and became the subject of scholarly study. Since the introduction of Saiban-in seido, the Japanese Supreme Court has regularly surveyed the Saiban-in and makes reports of case outcomes publicly available on its website. Likewise, in South Korea, a series of surveys of the public, criminal defendants, and legal elites explored attitudes and views about lay participation.Footnote 55 In addition, the Korean Supreme Court’s Committee for Citizen Participation in Law has engaged in extensive reviews of jury trials, and the National Court Administration of South Korea has released information about the types of crimes heard by juries, the conviction rates, and judge–jury agreement rates.Footnote 56
Taiwan’s Citizen Judges Act includes an article specifically requiring systematic research on the new mixed court system.Footnote 57 Chapter 6 is devoted to the creation of a fifteen-person assessment committee and its required activities. For example, Article 105 provides:
The Judicial Yuan shall promptly constitute the Committee for the Assessment of System of Civil Participation in Criminal Trials (hereinafter referred to as “the Assessment Committee”) after the entry into force of this Act. The Assessment Committee shall conduct necessary research and submit an annual assessment report on the implementation of the system of civil participation in criminal trials in the previous year. The Assessment Committee shall submit its final report within a year after the completion of assessment period. The final report shall contain a holistic assessment of the implementation of the system of civil participation in criminal trials, and recommendations for possible amendment of the law or for relevant complementary measures.
Setting aside Russia, where it has been difficult to assess the contemporary operation of its jury system, the extensive collection of data by Japan and South Korea allows us to get a sense of the experiences and impact of these new systems of lay participation. Overall, both Japan and South Korea consider their implementations to have been successful.
Vanoverbeke and Fukurai, taking advantage of the extensive data that the Japanese Supreme Court has published on its website, show that there was a remarkable degree of stability in trial outcomes over the first ten years of Saiban-in seido.Footnote 58 Perhaps surprisingly, trial conviction rates have remained close to 99 percent, dipping a bit to 98 percent in the few years prior to the pandemic.Footnote 59 Mari Hirayama has identified some small declines in indictment rates (which one might expect if prosecutors are more selective in bringing cases before mixed tribunals) and some increases in criminal sentences, particularly in sex offense cases.Footnote 60 In contrast, Japanese lawyers have reported dramatic effects on criminal investigation and trial procedures, such as increases in court-appointed lawyers, recording of interrogations, more evidence disclosures, and greater overall transparency from the oral trial.Footnote 61 In addition, several researchers have reported positive effects of lay judge service on the Saiban-in.Footnote 62 The lay judges are more positive about the courts following their lay judge service, which is in line with the greater positivity following jury service in the US and Argentina.Footnote 63 Vanoverbeke and Fukurai also report post-service political activity among former Saiban-in, consistent with the civic engagement effects found elsewhere for jury service.Footnote 64
The South Korean jury experiment has also continued, although the number of jury trials is low in part because of defendant choices and professional judges’ ability to veto a jury trial in specific cases.Footnote 65 As noted earlier, the advisory jury and the trial judges agree at extremely high rates, perhaps attributable to the interjection of the trial judge into nonunanimous jury deliberations. As Park explains, there continue to be concerns about the nonbinding nature of the advisory jury’s verdicts. Yet, surveys suggest that this feature of the jury system is well-supported by the public and legal actors. The majority of the public, former jurors, and judges expressed support for the nonbinding nature of the advisory jury’s verdict and do not favor a change. The sole exception: criminal defendants.Footnote 66 Prosecutors often appeal South Korean jury verdicts; however, higher courts have upheld the vast majority, and at higher percentages than bench trial case decisions.Footnote 67
VII Conclusion
It is an exciting time to be examining lay participation in law. Taiwan’s incorporation of systematic study of the implementation and operation of the Citizen Judges Act in its first years deserves applause. That information will be valuable not only for improving Taiwan’s new system, but also to provide documentation about how legal systems adapt to the presence of community members as legal decision-makers. Armed with information about how similar systems in Asian countries are working, Taiwan can anticipate some of the challenges it will face to ensure a vibrant system of lay participation that provides a robust voice to the community in the resolution of criminal cases. Fortuitously, this volume on Inter-Asian Law (IAL) provides an opportunity to consider how citizen participation in law and other law reforms affect legal processes, decision-makers, and society at large in Asia and elsewhere in the world.
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