In recent years, many international documents, declarations and research works have highlighted the importance of judicial independence and the fairness of the courts. These include: The United Nations Basic Principles on the Independence of the Judiciary adopted in September 1985 in Milan (Italy); The Beijing Declaration on the Principles of Judicial Independence in the Lawsia Region, adopted in August 1995, then revised in 1997 in Manila (Philippines) and the United Nations documents known as the Bangalore Principles on the Conduct of Judiciaries (2002) with commentary on these principles (2007). Even the independence of the judiciary expressed through human activities is emphasized: “Judiciary independence is the premise for the law to be fully embodied in the people doing the trial (court)” [150, p.17].
Through that, we can see that the ideological viewpoint on judicial independence and people's participation in judicial activities has been studied and developed for a long time. However, depending on the circumstances, socio-economic conditions, cultural traditions and different political institutions, the perception and regulations on people's representatives participating in the trial in each country are also different.
2.5.2. The development process of the jury system
The jury system is considered to have emerged in the 5th century BC in ancient Greece based on two advantages: equality for all people and prevention of corruption and bribery in the courts. This system was codified in the Middle Ages in England and then gradually became a legal institution. This is demonstrated in the case of King Henry II of England, when he did not judge himself but assigned some other people to do it in the name of the king. Specifically, in 1178, King Henry II appointed 5 members of the royal family, including 2 monks and 3 jurors to "listen to all complaints of the kingdom and resolve them immediately". According to the Magna Carta issued by the King of England in 2015, due to pressure from the bourgeoisie, this "court" was permanently located in "certain places", but in fact it was at the Palace of Westminster [135, p.2].
After the application process and with some changes in England, the French Revolution at the end of the 18th century, in the wave of democratization, the jury court was widely applied in different countries. In Belgium, the jury court was established in 1830, after
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It was established in Portugal with the introduction of a jury of six members and a verdict requiring a two-thirds majority. In Greece, the new trial model was introduced in 1834 and in many Swedish cantons in the 1860s. Meanwhile, in Spain, the jury system was mentioned in the constitutions of 1812, 1837, 1869 and was recorded in a specialized law in 1888. The jury court was established in 1848 in the Kingdom of Sardinia, in Italy after the unification in 1860 this procedure was applied nationwide, and in countries such as Russia and Romania in 1864. In England alone, along with the implementation of the jury system domestically, it was also applied in the colonies, such as in the African region, which was born around the middle of the 18th and 19th centuries, in Canada at the end of the 18th century and in Australia in the years 1820-1830. In America, although the jury system was introduced along with the expansion of British colonialism, it was later regulated and applied more and more strongly. The views on the jury system were gathered in the Constitutions of the first 12 states as well as in Article III of the federal Constitution and the Fourth Amendment to the US Constitution. And in fact, the jury system is applied not only in criminal cases, but also in civil disputes [132, pp.591-194].
The Japanese judicial system has had a form of lay judges, the most prominent of which was the royal jury mechanism that existed during the period 1928.
– 1943 and the saiban-in system (lay judge system). This model did not exist for a long time after that, however, in response to practical needs, this country piloted it again in August 2009 [139, pp.42-43].
To date, in addition to countries that have implemented the jury system relatively thoroughly, many countries also use juries or lay judges alternating with judges in criminal trials. In Germany, lay members participating in the trial perform the function of a jury. In regional courts, a judge alone considers and decides cases with a maximum penalty of up to two years, while courts with one judge and two lay people try cases of crimes with a maximum penalty of up to four years or, in complex cases, in state courts, when the court consists of three judges.
professional judges and 2 lay judges. In other European countries, such as Austria, courts of 3 judges and 8 jurors try cases with possible sentences of more than 10 years deprivation of liberty and political crimes. In Belgium, juries of 12 jurors participate practically only in proceedings with possible sentences of 20 years or more and decide by secret ballot with a majority of not less than 8 members. In Denmark, cases with the participation of jurors are rare, appearing only in cases of more than 4 years deprivation of liberty or keeping the defendant in a mental hospital or for political crimes. In Norway, in the lower courts, lay judges (HTND) are used, while in the high court there is a panel of 10 jurors. In Switzerland, the 12-member jury court has been abolished in all cantons except Geneva, and the federal court is used very little [132, pp.594-596].
Since the emergence of the state, the judicial sector or more specifically, the organization of a suitable and effective trial system model while promoting democratic rights has always been the research goal of experts and authorities in many countries. Even after many centuries, in leading developed bourgeois countries with a fairly thorough application of the "separation of powers" theory with a judicial system organization model considered progressive such as England, America, Japan, etc., the jury system is still being dissected and researched.
2.5.3. People's jury in the socialist criminal procedure model
The role of the masses in state management and judicial activities with typical manifestations in the socialist regime. On the basis of inheriting progressive ideas and from the practice of revolutionary struggles, since the 19th century, the viewpoint on democracy, the rule of law state, and the role of the people have been established in a new direction in Marxism-Leninism. The earliest representative of this theory is Karl Marx (Marx) 7 , when he said: "Under democracy, it is not human beings who exist
because of the law, but the law exists for man; here the existence of man is the law, whereas in other forms of state regimes, man
7 Karl Marx (1818–1883) – German philosopher. He is the “father” of Scientific Socialism and together with F. Engels (1820-1895) founded Marxism–Leninism.
“People are beings defined by law. This is the basic characteristic of democracy” [136, p.350].
The new model of state, ruled by the people, appeared in the Paris Commune in France in 1871, but it was only fully formed after the October Revolution in Russia in 1917 according to the Marxist-Leninist perspective. This is considered one of the new models when the people's classes are widely and directly involved in state management and judicial activities. This was affirmed by VL Lenin: "After the proletariat won power, we must judge ourselves. All citizens without exception must participate in judging and managing the state" [155, pp. 66-67]. Indeed, immediately after the success of the October Revolution in Russia, on November 22, 1917, Decree No. 1 on the Court of the Council of People's Commissars chaired by VL Lenin was issued [79, p. 4]. The old court system was abolished and replaced by a new court system with a democratic nature and the principle of the People's Court participating in the trial was established, as Lenin affirmed: "The October Revolution was completed and completed successfully. To replace the old court, the revolution established a new court of a people's nature... Built on the principle that the exploited classes and only that class participate in state management" [155, p.199].
The new court model with broad participation of the people later developed in the socialist countries in Eastern Europe, China, Vietnam, etc. The laws of socialist countries all stipulate that, in addition to the court system, there is a system of people's procuracy, the trial process of the court is carried out at two levels, the judge election system. Along with specialized courts, there are also mass organizations, such as the comrades' court in the socialist countries of Eastern Europe or the mediation organization in Vietnam. In the book "General Legal Terminology" (Volume 1) by IAAzovkin and a group of other Soviet legal scientists, published by the "Legal Books" Publishing House in 1973, translated and published in Vietnam in 1986, in the section "People's Jurors" it is stated: "The trial of cases in the courts of first instance is conducted by one judge and two People's Jurors. Citizens of the Soviet Union have the right to vote and can be elected as people's assessors at the age of 25" [17, p.10]. Specifically, "In the Soviet Union, the People's Assessor of the lowest level is elected by citizens in the place where they work or reside by public vote for a term equal to half the term of the judge" [59, p.23]. Accordingly, it can be seen that the system
The jury system in the former Soviet Union and former socialist countries had similarities to that in Vietnam today.
In Vietnam, before the August Revolution in 1945, under the leadership of the Communist Party of Vietnam, the trial with the participation of the people in criminal cases had begun to be implemented. During the Nghe Tinh Soviet period of 1930-1931, although the people's government had just been formed and the management and administration at the commune and village levels were carried out by mass organizations, the role of the masses was clearly demonstrated. In Ha Tinh alone, according to the survey data of the Party History Research Board - Ha Tinh Provincial Party Committee (conducted from 1967 to 1970), the whole province had 170 villages with red peasant associations directly or indirectly running and managing village and commune affairs. At this time, the Soviets not only participated in solving socio-economic problems, but also carried out administrative work, handled judicial issues such as conflicts, disputes, and eliminated evil with the strong participation of the masses [41].
During the 1940 Southern Uprising, although the revolutionary government only existed for 49 days, the Revolutionary Court Council was established, and in My Tho, there were sentences for the reactionaries. Accordingly, the trials were mobile and public, and at each trial, representatives of the masses spoke out, exposing the crimes of the reactionaries and then requesting the level of punishment and the right to decide of the people's representatives to be respected [56, p.6].
After the August Revolution in 1945, along with the establishment of the people's government apparatus, the new judicial and trial system was officially consolidated and perfected. The regulations and implementation of the organization and operation of the court became more and more complete and strict, and the participation of the masses in trial activities became a constitutional principle from 1946 to the present.
2.5.4. Jurors, assessors, and lay judges in current criminal proceedings
Conditions to become a lay juror, jury, judge
Basically, although they have different names, the conditions to become a juror, lay judge, or lay judge in today's countries all have quite similar points.
similar. Almost all countries stipulate that they are citizens within the jurisdiction of the court in criminal cases.
Those selected as lay jurors, jury members, and judges must be adults and qualified to perform their duties, such as: in the United States, they must be 18 years old or older; in the People's Republic of China, they must be 28 years old or older (in the Resolution on strengthening the People's Judicial System of the Standing Committee of the National People's Congress of China in 2005, it is 23 years old) [153] ; in Korea, they must be 20 years old or older; in the French Republic, they must be 23 years old or older; in Japan, they must be eligible to vote for the lower house of parliament; in the Russian Federation, they must be 25 years old or older, etc. Along with that, countries also do not regulate legal knowledge and require too high professional qualifications and understanding of society, such as: in China, the minimum level of education is high school graduation (in Resolution 2005, it is intermediate level) [153], in the US, it is only necessary to be able to read and write English, in Japan, it is only necessary to complete the compulsory general education program (grade 9), in the Russian Federation, it is a person with legal capacity. In addition, in all countries, it is also stipulated that people selected as jurors, assessors, and non-professional judges must be in good health, have no physical or mental disabilities, and must not be holding positions in judicial agencies, lawyers, have a relationship with the defendant, have been convicted of a crime, etc. [115].
In terms of the selection process, in the United States or Australia, juries are chosen randomly, usually from voter registration records. In the Italian Republic, amateur judges are selected from a random list drawn up by the city government and reviewed through a complex mechanism [139, p.235]. Juries in Russia are chosen randomly from a committee. Meanwhile, in a few other countries such as China and Vietnam, this is done by term-based elections.
The role and duties of jurors, assessors, and lay judges in criminal trials
In countries, the law often stipulates that those who are selected to participate in the trial must be present at the court and actively participate in the trial in an objective, impartial manner and must take an oath. For serious criminal cases, such as murder, rape, drug cases, etc., there must be a jury or jury trial.
In the Russian Federation, jury trials have existed since 1864 and during the Soviet period were replaced by a new type of court system with the existence of the People's Court. After the collapse of the Soviet Union in 1991, a change in the procedural model with the formation of the jury system was carried out. Jurors in Russia deliberate independently of the judge during the trial of criminal cases, which is somewhat different from the mixed courts of the former Soviet period or in continental Europe [139, pp.177-178].
Meanwhile, in the French Republic, jurors are required to participate in the trial of serious criminal cases. For serious crimes (with a prison sentence of 10 years or more), the trial will be conducted by the assize court. The assize court (“cour d’assises”) consists of juries, of which 9 are for the first instance trial and 12 are for the appeal trial [139, p.468]. In the Italian Republic, dangerous cases, in which the defendant can be sentenced to life imprisonment or up to 24 years in prison and some other specific crimes, the jurisdiction of the trial will belong to a special court called the assemblage court (Corte d’Assise). This court consists of 2 professional judges and 6 amateur judges. In addition, cases under the jurisdiction of the juvenile court are also tried by a panel of 2 professional judges and 2 amateur judges. Violations can only be prosecuted after a complaint from the victim, and are tried by an amateur judge of the conciliation court [139, p.235].
In the United States and Australia, a jury consists of 12 people and alternate members. During the trial, the jury is usually passive and is not allowed to ask anyone any questions (some places have other experiments). Also, according to the regulations, in the United States, the court does not have the right to order the jury to consider a crime that is more serious than the crime that the prosecutor and the grand jury have charged the defendant with [139, p.242].
In China, criminal trials with the participation of jurors have been regulated and applied for a long time. The composition of a 3-person panel usually includes 1 judge and 2 people's jurors; the 7-person panel is specifically regulated to include 3 judges and 4 people's jurors. In local courts, most criminal cases are tried by a panel of 3 professional judges or a combination of professional judges and people's jurors. At the third level, the high court, "the panel may include from 3 to 7 professional judges or a combination of people's jurors" [139, p.109].
Trial and judgment
In Japan, lay trials are usually conducted in the form of a mixed panel consisting of three full-time judges and six lay judges, or in less complicated cases, one full-time judge and three lay judges. This mixed panel decides both the content of the verdict and the sentence. The full-time judges decide on questions of law, and the lay judges may comment on those questions. The decision of the mixed panel is made by a modified majority rule, meaning that at least one full-time judge must agree with the majority opinion [139, p.43].
In South Korea, cases involving the death penalty, life imprisonment, require nine jurors, while most other cases require seven jurors, unless the defendant admits guilt, in which case only five jurors are required. Jurors' verdicts and opinions in South Korea are not binding on the court.
In the United States, during a trial, after the arguments have ended and the judge instructs the jury, the jury will leave the courtroom to go to the deliberation room to discuss and make a private verdict. During the deliberation process, after resolving all disputes about the facts of the case, the jury will apply the law as directed by the judge to those facts. For each charge, the jury will render a verdict of “guilty” or “not guilty”. If the verdict finds the defendant “not guilty” or “not guilty by reason of insanity”, the prosecutor will have no right to appeal, the jury will be dismissed, the case will be closed, and the defendant will be released. If the verdict is “guilty”, the jury will be dismissed and the decision on the verdict and sentence will be up to the judge [139, pp. 437-438].
As in the United States and France, in Australia and Japan, jury verdicts are also made by voting and are decided by majority vote. For decisions on punishment, if opinions are so different that a majority cannot be achieved, the votes of the opinion most unfavorable to the defendant are added to the votes of the next unfavorable opinion until a majority is achieved [26, p.65].
In the French Republic, the judge and jury interrogate the defendant and render a verdict [139, p.468]. The jury's vote is also based on a 2/3 majority rule (i.e. 8/12 at the first instance level and 10/15 at the appeal level).