in West German, Swiss, French, the Uo S.A.
and Japanese Judicial(Crilninal)PrOceedings
by Shunsuke TAWA
(Received 31 0ct 1975)
In most modern countries,the participation of people in the judicial proceedings has two systems,One is the jury system,and he other is the lay judge system. The fOrmer has iong prevailed mainly in Anglo American JudiciaI System, and the latter in Germany. The Japanese Jury Systein,based on Napoleonic and Anglo― AInerican Laws, ilnported in 1923,was entirely abohshed in 1943 during Worid
War
Ⅱ. The effect of that systeln in Japan had been regarded as questionable. The chief reason for this was that the jury system was considered to disttrb he effective proceedings of he cOurt. The fact is, however, the participation in the judicial proceedillgs has prevailed an over the wOrid, because judicial prO_ ceedings should not be independent of the people's will.1. The Jury inヽ
Vest Germany
ln West Germany it is called“
′
rrial joined by the lay judge", it is made up of a prOfessional judge and a lay judge enected by the people, though there is a cer伎lin difference between a jury in the local court and a jury in the state court.In West Germany private prosecution is available,as a lneans of participation
in judicial proceedings. This is a systel■ whereby the illJured can prosecute in place of the pubhc prosecutor. This is, however, cOnfined tO petty offenses. This private prosecution is quite different fronl the Japanese Seni― Pubhc Pros―
ecution System, which deals only with the crilne conll■ itted by the special pubhc
officers who work as the judge,pubhc prosecutor, poLce, and the assistants of all of them. The proceedings are conducted through an adOvOcate aOpointed by he court. The German Systenl is also different from the Japanese lnquest
Shunsuke TAWA
of Prosecution Systeln,which cannot force the pubhc prosecutor but l■ erey ad‐ vises the reconsideration of his decision as to whether to prosecute or not.
2.The Swiss Lay Judge System
The S、viss Lay Judge is elected from among the citizens. He should be reg― istered beforehand as the applicant. The lay judge is reelected every 7 yearざ :)
The lay judge, in co―operation with the professional judges,decides the case, This means that the conllnon citizens can take part in the jurisdiction.
3.The French Jury System
The jury court is held only when the defendant clailns his protection in order to tesdfy to his innocense,hen the jury court starts,hearing the witness,and collecting he proofs. The jury systenl is generany exceptional, but the jury systein has an il■ portant】neaningi the defendant should be given the chance to
be protecttd by the citizens.
This also means that conunon citizens take part in the judicial procedure.
4.The Anerican System
The Jury should always be held when a case is tried. The jury is held not onty in he trial, but also in the pubhc prosecution. The latter case is caned a“grand jury''. While the petty jury decides whether the defendant is quilty or not, he grand jury decides whether he suspect should be prosecuted or not子 ) The petty jury is called a“trial jury".The grand iury System was abolished in the l」nited Kingdom in 1933 which follows Angio‐
American Law. But in
the U.S.A., this systel■ is still available, which is legislated as a means of exercising the fundamental right of human protection under he Federal Con‐ stitution,so he grand jury system can not be abonshedo [Ost of he states in the U.S.A. wish to give up this systel■ because it takes too much time and he ordinary citizens are not always it for the investigation of crilnes, In some of the states in America,he grand iury system is actually abolished hough he Federal Constitution demands it as necessarデ P)As for the problern concerning wheher the jury systtm will disturb he fairness of justice,he UoS.△ .has a system of previous check upon the juror candidate with a test of his intelligenceⅡ.
and conll■on sense. Brieay,the German Private Prosecution Syste■ l substitutes
for the American Grand Jury System.And both he German and Swiss Lay
Judge Systems seem to be a transfiguration of the American Trial Jury System.
In WVest Germany, ・Sθ
ttη
F例肪θんナ"means the Jury system in a broad sense. In the trial or the decision of he crilninal cases which belong to he authorization of he courJつ if the case can not be judged by he hcЛ court judge alone,the local court sends it to he iury SySte∬ F)The jury court consists of the local courtjudge(as he presiding Judge)and 2 jurors16)The apprendce judge can not pre‐ side over he case within one year of his appointinent to his rank`7)wYhen the
public prosecutor requests the increase of the professionaljudges of the local court,
he court must obey him.The request has not effectin he cases ofhigher courd8) The elected jurors can equally exrecise he vote and join he decision just as wen as he local judgeltt The decision can be made thout an oral triar°
)The work
of he jurorship is an honourable one. The jurors are restricttd only to German citizens. The self― governing body prepares the eligible Lst ofjurors every 2 years. The list is not available unless it has obtained he approval by the representa‐ tives of the body. The eligible list has the apphcants'names, birth place,date of birth and profession. The list is exhibited in the self‐governing body for a week. The time of he entry shall be previously pubLshed. The apphcants shall
be reconunended. 5 members from a population of 500, 6 from more han 500
population shall be reconlnended as candidates. In oher cases,2 per 200 popu‐ lation shall be reconllnended. The number of jurors and professional judges is as follows:in he 10cal criminal court rス
ηね
Fθrιε
力
ち
SεЙ
吻ねば滋 力
,l judge to 2
jurorさ:1ln he state large criminal court“
務
ddを S加"物
吻″九
3 judges to 2 jurors, in he jury court rSεヵ
νク
写劉ひ
ん
,3 judeges to 6 jurorざ 2)」urOr means lay judge.
This lneans that the entry of the trail by the citizens increases in number according
to he kind Of lawsuit. The S、viss Jury Systein is regarded to be very rigid but recOmmendablざ:3)BeCause,according to some of Swiss lawyers,he ordinary
trial is set before the jury triali the jurors are elected immediately by ule citizen
and can exanine he defendant as to whether he is responsible for the crilne.On he contrary,the criminal court can quesion he important criminal punishmen讐)
Shunsuke TAWA
The defendant can choose either the jury court or the ordinary court while the trial procceds115)It ineans that the number of jurors varies according to he kind ofね
wsuit.The voung needs=or morぎ
O Against he judgement by he jury
court the appeal can be raised to the Special Supreme COurt. The Special Supreme Court consists of the President, Vice President of he federal court,and 5 oldest inembers who belong to the federal court. The pubhc prosecutors and thecriH nal court officials, whether already appointed or not, cannot become jurors.
In Swiss jury systeFl there are not only professional judges and lay judges but also ordinary jurors elected by citizens,hus checking the arbitrary decision by the national institution,namely professionaljudges alone. In France,the quanications of juror ship are rigibly regulattd. 」urors are expected to read and write French and be over 30 years of age;17)′ rhey must have all the rights both in public and
civil. They should be from such sentences as a felony or ilnprisonment
extending over a month, and a ine extending over 500 new Franc for a H sde―
meanor`18)Those who are now charged or condemned in criminal law cannot be― come jurors争働The f0110wing persons shall be excluded from he duties of juror‐ ship: 1.the governmental and iocal conHnunity officials who are temporaily deprived of the right exercising heir pubhc duty.2.[)isnissed officials.3.Lower ranked executive officials who are prohibited from exercising their official duties. 4.A person sentenced for a bankrupcy who cannot restore his rights. 5. A person who is deprived of he qualiication to be a juror because of his having refused it without reasonable cause. 6.A person who is sentenced as alnan withoutselニ control.7.A person in a mental hospital suffering from mental disease prescribed by la、￨｀
2①
The governmental supreme members,ex,President,Vice President,
Parliament Member,judge,public prosecutor,police officer are not compatible wih jurorship卜2つ
similar pttnciples to he′ above mentioned can be seen in American Law122)But,in UoS.A.,the restricdon as to he qualincation for iurorShip does not extend to a person、vho has conl14itted a H sdemeanour.
III.
From the above― mentioned materials,I condudei he jury system should be re―
vived. But, it should be lil■ ited in criュninal proceedings only. The grand jury
future,the members should be electtd direcuy by the people. :rhe ettgible list need not exctude those whO got through with their penalty,The exclusion of the cril■ i― nals who have coEMnitted a crilne within hree years,should be necessary, especiaト
ly in case of political crilne,felony,as wen as the crilnes concerning business,enter‐
prise The reason for this isithose who have committed the crimes just mentioned are hardly expected to have suficient power of judging others guilty or not. The constitution of the jury should be such that one professional judge win be the presiding iudtt and more han two jurors present at the court. The judge decides the sentence based on he report by the jurors. He decides the degree of he punishment only. Jurors Only decide whether the defendant is guilty or not guilty.Jurors should have the right to refuse jurorship. The defendant can choose either the ordinary court or he jury court.The lay judge should not be adnlitted, for he present,We inust remember the fact that the Japanese Far ly Court 【edi‐ ation ConHnittee Systeln dOes not always represent he various ciasses of people, and that the Conlinitly Systeal was a device of introducing the European idea of people's participation in judicial businesso We have,thus,an unfortunate example already, So it inight be naturally considered as ahnost impossible for us to have entirely well‐quahned lay judge in our country, The grand jury Systeln should not be adnlitted Oither for the silnilar reason to the above, and particularly be‐ cause of the importance of the criminal cases which the grand jury naturally has to deal with.But,people are the representative of sovereignty,SOvereignty shall be exercised by the people. Judicial(cril■inal)proCeeding is also a kind of oper‐ ation of sovereignty. Because judicial proceeding belongs to the judiciary which is a part of sovereignty. Then while a lay man has not such a legal experience as a lawyer does, he sometilnes has a good conllnon sense which is free fro■ l pro― fessional sense. Though he good cOnllnon sense may not always be apporopriate to investigate the crime professionally,it may be convenient to judge whether the defendant is responsible or nOt. For these h〃 o reasons, WVest German Systel■
has infOrttat e character.So it will be pЮfitable for usto accept hejury system and have he t、vo kinds of jurors in he futtre. One is alayjudge,and the other is a cOmmon juror who is selected at random from among the people enlisted as the inhabitants. In his case, the questionable person previously inentioned should be excluded. If we choose a lay judge from arnong the legally experienced persOns,
Shunsuke TAWA
a retired university professor, a retired adIIInistrative officer,etc.,we caniavoid the danger of a local boss'Inonopohzing judicial positiOn,If we choose ajuror from
among the conll■ on citizens at random,it wll be unnecessary to adopt he voting
election system. By alloting to a lay judge the role to try and iudge a case in co‐
operation with the professional judge,and by giving the verdict right to the juror, 判e shall be able to mediate the two conaicting obiects and ttlen let the amateuer keep the legal,fair,and impartial joining in he judicial proceeding.And to allow a professional judge to try the case at the appelant court will protect the de‐ fendant's beillg punished errorneously by the amateuers'misiudgement123)
Notes and References
(1) レ修Jg￠￠カィ″ y″lυ.F瑣丁 Dr Fra2s VИ￠テ,″ r離れ う腔,′ `ο
力v力りzοSSAθ 力θS￠切力,テゲ諺ら
力Sづぬ ￠力￠ FαttJ肪ち υ″力97S'taチ 西珍印,
(2) M.CHERIF BASSLOUNI: CRIMINAL LAW AND ITS PROCESSES,
CHARLES C THOMAS,PUBLISHER, SPRINGFIELD, ILLINOIS,Uo S.A.,
1969, p.449
(3) ibid.M.CHERIF BASSLOUNI: CRIMINAL LAW AND ITS PROCESSES,
p.449,p.455
(4) T力.FJι力″″π力ら 二 MIIサ協吟L.資￠″b￠hgο托 ο″.:【MP,Xοηη￠%勉″z″ S加巧″οを公S‐ "ウ″夕″『 "″,z,,η G￠ 万θ力ん‐υ♂頚ルsSttgs・ 夕 婢 dν力駒な力方形″F,Sι拷, a 4″月2F￠, 勘 ,2,fb♂力υ￠″,9『 D/.Al S″ノjS・￠P//‐D2μ″s勉 'ら 1966 S.30: GレたG§ 28, I″η,‐ R餌力r d加″ ￠7/a貯物S″れ ら 11 4ガヵP, C.ユ Bttθtt И 力ηθ力￠″1972,S.32
(5)a.a.0. (6) 匂Ⅲ θづ∴ IMR κοηヶ夕″♂η賊,S.30:G7G § 29(1)cf. in s♂ 力νttζιηひカナ 3:6, G79SS,S″ "α ,″″ι″rとG)3:2r§ 7δ G7C P〃 レη♂Jξ￠ιル チ″ D/.■bηθT r蹂 ゲ″αJttθ力ψttz￠SSACカゼS♂η力α力諺ち隣 is"むθ力ο 虎 ″″J肪ちL/2カ￠Tsぢ″ケFrpづ,)ぅ27F, (7) ibid. FVR Kο,夕ヶ″ι♂″ =Υ,S,90f G7G§ 2つα) (8) ibid.【れrR κoη初￠妨 αЪ S θOf G7G§ 29rD e)空 生 胞 陶・Rοttf S力ψ ￠T/p焼″S″οカォS.9=,In Germany,there are two kinds of lay judges. One is the rsθ 疵班pηtt and
the other is the rrC￠sθ″νο″″イSοカレ ″has the same right as a professiOnalⅢ dge.
And the C￠s♂力ν9/ρ″ haS a different duty from a proFessional dge.Gヮsθ力ν″ο″
is a lay judge who is appointed in °Sθ力ν″■
『￠枠οカチ
″which decides a capital crirne. He must decide only whether the defendant is responsible or not. Then,his duty is similar to that of an Anglo‐ American juror.
(10)9帆οオ・【んrR κο夕,,ηιttαγ,S.92 GyC§ θOrF)
01)The(10cal COurt)ス ″tsF￠
'じ
肪 is competent in the action for the following cases: private prosecution,the offense to be condemned as 6 month imprisonment,the offense to be supposed asiessthan-1‐ year imprisonment by public prosecutor. But,if a public prosecutor raises the prosecution to the state court because of the character of the offense except the exclusive case for the local court judge,and if the offense is to be supposed more than‐ 3・year imprisonment
or the pubhc prosecutor raる e prosecution to the State Court because of the ` case` specianty except the exclusive case for the jury court or(State Su― preme Court)OLC,`rsσ ねヴ″卜亀C″♂カケ''is opened.'Cttdsワ S″ち膨,夕,ιηογ″and``Sθカタ
"″
‐
Fιttοカケ″(jury court)bebng to Lα ″,F￠71cカケ(State COurt〉
G″οssθ Sケ鷺り粋α″″
",ι
♂7 is competent in the action for the fonOwing casesi All the cases that do not belong to local court, jury court, or State Supreme Court, and minor offense agaillsi national securityithe crilne to be prosecuted by the C″ οsstt S>町脱切聰η￠γ because of the case`speciality:when the juror`
decislon ls necessary.
Jury COurt is cnmpetent in the action for he foHowing cases:obscenity or rape resulting in death, homicide, beating to death, child murder, deserting
a child resulting in death, poisoning, illegal detention resulting in death, grave larceny, burglar, threat, arson, explosion resulting in death, inun―
dation resuiting in death, destruction of building resulting in death,
malversation resulting in death
ibid.ス 杉物載ο筋脇ISケ″″ οjα力γιηS″♂θ力ち
S.23万
α,α.0 9ク.θゲ∴X杉夕η ‐Rο″肋I S抒町 砂 ￠7/pttCηS7ο σカオd '73 ibid.虫杉陶 ‐Pο筋励,Sχ中 ￠7/p力修ηS″じ力′S.θ73 ibid. K￠町Rοガ%fS″中 ￠ "カ イο″S紀♂カチS
∂78 a,a,0.Prof Gerald L Kock,A B.,J.D.,LL M.Emory Universi呼 :
THE FRENCH CODE OF CRIMINAL PROCEDURE,FRED B.ROTHMAN
&CO.SOUTH HACKENSACK,N.J,,SWEET&MAXWELL LIMITED,
LONDON,1964,p.97
(18)ibid.PrOf.Gerald L Kock:
THE FRENCH CODE OF CRIMINAL PRO‐
CEDURE,p.97
(19) ibid. Prof. Gerald
CEDURE,p.97
(20)ibid, PrOf GeraldCEDURE,p.98
(21) ibid. Prbf. Gerald
CEDURE,p.98
L.Kock: THE FRENCH CODE OF CRIMINAL PRO‐
L.Kock: THE FRENCH CODE OF CRIMINAL PRO―
(12) (13) (14) (15) (16) (17)
Shunsuke TAれ「
A
(22〕 ψ.ひ￨∴
M.CHERIF BASSLOUNI:CRIMINAL LAW ANID ITS PRoCEttSES,
p.486, Anen P,BAslow, M,S。 ,John B.Willians,LL.B.,LLM., M.Sf A Handbook in CRIMINAL PROCEDURE and the ADMINISttRATttQ壁
OF
JUSTICE,GLENCOE PRESS,ADIVISION OF THE MACMILL.AN COMPた
NY,BEVERLY HILLS,1966,pp.66・
68(23)坐 .=″ .氏軒 魂タ ガ%:S″ a/v♂げ 藩厳 魏 s″♂んち S,9?=妙 ・
坐 坐
