Comment On The Influence Of Japanese Referee System On Criminal Procedure

In addition to the introduction and conclusion,this article is divided into five parts.In the first part,the author gives a brief introduction of the legislative background and main contents of Japan's lay judge system.After the Second World War,Japan established its adversarial criminal procedure framework.However,after 1970,Japan considered criminal justice policy as a critical part of both ruling policy and public security policy,under which context the three organs,namely the police station,procuratorate,and court were required to cooperate with each other in combating crimes.During such adjustment of the criminal justice policy,the investigation procedure has gradually become the center of criminal procedure,while the trial has been increasingly ignored and the protection of the accused's right of defense has been degraded.It was at this time that Dr.Ryuuichi Hirano proposed that the introduction of trial participation system is “the only way of rebirth” for criminal judicial procedure.Taking “reducing people's burden in trial participation” as foothold,he held that the ideal mode for people to participate in criminal judicial procedure is the “core justice” mode.Since then,legal professionals in both theoretical and practical fields made great efforts in studying on the “core justice” mode and designed a basic line for the lay judge system reform based on their researches.The second part is about the influence of lay judge system reform on investigation procedure.It is undoubtedly that the application of lay judge system is conductive to the establishment of video and audio recording system of interrogation,and also to the standardization of investigative interrogation procedure.After the application of lay judge system,the rate of custody request dismissal by judges and the rate of bail have both been increased,reflecting that the application of investigation and custody procedures has been significantly improved.In addition,along with the progressing of the reform,the state public defender system in investigation phase has also been established,meaning the right to participate of the defense which was only fully enjoyed and exercised by the defense during trial is exercisable in investigation procedure,which stimulates their initiatives in defense activity in investigation period.In the third part,the author discussed the influence of lay judge system on the procedure of first instance.Since the implementation of lay judge system,Japan has established a pretrial collation procedure to ensure that the material issues and evidence of cases can be accurately summed up before trial by expanding the scope of evidence disclosure and determining the effectiveness of the collation procedure and otherwise,with a view to exploring a proof and debate method that is easy for lay judges to understand and make impartial judgment and establishing a fact finding and deliberation method that conforms to the lay judges' cognitive rules.The fourth part states the influence of lay judge system on appellate procedure.Japan introduced lay judge system while failed to modify the contents in relation to appellate procedure.Notwithstanding,the Supreme Court of Japan clarified the after-trial attribute of the appellate procedure in the legal precedent made thereby,and required to treat the “empirical law violation theory” as the examination standard of appellate procedure.Though the overall appeal rate shows no significant change after reform,the appeal rate and withdrawal rate on the part of prosecution change greatly.The criterion of factual error examination has the implication that the judge's experience takes precedence over the referee's experience,but the sentencing review basically embodies the respect for judgment of lay judges.The fifth part is about the influence of lay judge system on criminal procedure.In this part,the author makes discussions on the purposes of introducing the lay judge system in Japan from two aspects,i.e.the influence of the introduction of lay judge system as a technical approach of lay judge system reform and as an approach of litigation system reform.The former leads to discussion on whether adjusting criminal procedure from the perspective of technical approach may accelerate the substantial and effective participation of lay judges into trial while the latter illustrates whether the introduction of lay judge system can improve the criminal procedure system.