The Democratization and Popularization of the Judiciary: A Discussion of the German Lay Judges (Schöffengericht) System

※ Originally published in Judicial Reform Journal, Issue 83

The ethos of the German lay judge system is to enable ordinary citizens to sit in judgment alongside professional judges, serving as both a right and a civic duty. This system is not restricted to criminal trials; lay judges also participate in administrative, financial, labor, commercial, and social courts, although the underlying rationale varies across jurisdictions. The primary lay courts in Germany, along with their organization and procedures, are governed by the Courts Constitution Act (Gerichtsverfassungsgesetz, abbreviated as GVG). These provisions apply mainly to criminal and commercial cases, while ordinary civil cases do not utilize lay judges.

The provisions governing the lay judge system in the Courts Constitution Act essentially comprise two parts: first, the scope of cases subject to its jurisdiction; and second, the selection of lay judges, the composition of the court, and participation in trials.

The first part governs criminal jurisdiction. At the District Court (Amtsgericht), a lay court consisting of one professional judge and two lay judges presides over first-instance proceedings for offenses where the anticipated penalty is up to four years of imprisonment. Appeals against such judgments are taken to the Regional Court (Landgericht), where a "small criminal chamber" consisting of one professional judge and two lay judges presides. First-instance trials for more serious offenses (such as murder) fall under the jurisdiction of the Regional Court, where a "large criminal chamber" (also known as a French-style jury court, or Schwurgericht) is composed of three professional judges and two lay judges. Appeals against these judgments may only be taken to the Federal Court of Justice (Bundesgerichtshof) via an appeal on points of law (Revision, which consists of five professional judges and does not employ lay judges). First-instance trials concerning national security are adjudicated by the Higher Regional Court (Oberlandesgericht) with a panel of five professional judges, likewise without lay participation.

The second part—concerning the selection of lay judges, the composition of the court, and participation in trials—forms the core of the lay judge system. This part represents a critical juncture determining whether the lay judge system can operate successfully, involving a complex operational procedure that requires close coordination among the judicial, judicial administrative, and administrative systems. Compared to this, the recruitment and training of professional judges are far simpler. Chapter 4 of the Courts Constitution Act (Articles 28 to 58) is titled "Lay Courts" (Schöffen), and the vast majority of its provisions (from Article 30 to Article 57) are dedicated to the selection, duties, and trial participation procedures of lay judges.

Lay judges are drawn from German citizens who have reached the age of 25. Unless excluded under specific criteria, every citizen has a duty to serve as a lay judge, which is an honorary office (Article 31 of the Courts Constitution Act). Articles 32 to 34 of the Courts Constitution Act set out disqualification provisions. Article 32 stipulates persons who are unfitted for office, such as those who have been deprived of public office by a court judgment, those sentenced to imprisonment of six months or more for an intentional crime, or those currently under investigation for an offense that may entail deprivation of civic rights; such individuals cannot serve as lay judges. Articles 33 and 34 outline circumstances where individuals cannot be appointed as lay judges, including those under 25 or over 70 years of age, those not residing in the administrative district, health reasons, forfeiture of property, the Federal President, members of the federal or state governments, judges, prosecutors, attorneys, clergy, and others. In addition to disqualifications, individuals are granted the right to apply for exemption from serving as lay judges under Article 35. These include members of the Bundestag, European Parliament, or state parliaments, physicians, nurses, pharmacists who are the sole operators of a pharmacy, persons over 65, and those whose service would prevent them from caring for their family or cause serious economic harm to themselves or others.

Unless otherwise specifically provided, lay judges enjoy the same adjudicative powers as professional judges during the main trial proceedings (Article 30, Paragraph 1 of the Courts Constitution Act). Consequently, lay judges participate in deliberations on culpability and sentencing and hold an equal vote (Article 192 et seq. of the Courts Constitution Act). During the main trial proceedings, lay judges also hold the same authority as professional judges regarding rulings that do not require oral argument or relate directly to the judgment (Article 30, Paragraph 1 of the Courts Constitution Act). However, rulings issued outside the main trial proceedings may be rendered solely by professional judges (Article 30, Paragraph 2 of the Courts Constitution Act). A more specific and contentious issue is that, under consistent traditional practice, lay judges have not been permitted to review case files prior to trial, nor do they have access to documents during trial. However, recent practical approaches have adopted a more open stance without imposing an absolute ban, while academic commentary remains divided. At its core, this issue touches upon the very nature of the lay judge system: should lay judges be equivalent or close to jurors, or should they be treated on par with professional judges?

From the perspective of German scholars, the German lay judge system is founded upon the following viewpoints and objectives: direct citizen participation in adjudication through representatives (the participation principle and democratic principle); enhancing public trust in the judiciary; exercising control over judicial adjudication (the control function); increasing public understanding of law and the judiciary (legal education); fostering public comprehension of the challenges judges face during trials; and bringing non-legal evaluations and perspectives into adjudication (the so-called enhancement of "sound human understanding" (gesunder Menschenverstand)) to foster modern judgments aligned with the public and the principle of the social state. It also enables professional judges to present their viewpoints and evaluations in a manner comprehensible to ordinary people, thereby ensuring judgments are understandable to the general public (persuasive control).

Factors in Evaluating the Introduction of the German Lay Judge System

1. Judicial Culture and Tradition
   As a subculture (or sub-system) within society, judicial culture possesses its own inherent values, norms, and functions. The judicial system as perceived by legal professionals—regardless of its operating systems or working standards—is fundamentally professional-oriented. Introducing a novel judicial system requires careful consideration of potential paradigm conflicts within the existing judicial culture.
   
2. Judicial Democratization
   The democratic principle is a constitutional principle (cf. Judicial Yuan Interpretation No. 585). As a branch of state power, the judiciary cannot be exempt from the constraints of the democratic principle. Allowing citizens to participate in adjudication through a lay judge system undoubtedly aligns better with the democratic principle than adjudication conducted exclusively by professional judges. Nevertheless, the democratic principle or democratic state merely manifests the form of state (Staatsform) adopted by the Constitution and does not thereby confer a uniquely superior constitutional status. Consequently, as long as the organization and exercise of judicial power do not violate the democratic principle, adopting an indirect form of democracy is not unconstitutional.
   
3. Judicial Popularization
   From the perspective of the sociology of law, the judicial system—more so than other social systems—inherently tends toward conservatism and requires more time to adapt to novel social phenomena. Such systemic structures may foster a judicial mindset inclined toward preserving existing social systems and culture. Introducing a lay judge system would inevitably impact the judicial system; at the very least, judicial work would no longer be the exclusive domain of professional judges, and citizens would have the opportunity to stand on an equal footing with judges. This would undoubtedly influence judges' value systems.
   
4. Public Trust in the Judiciary
   If the Judicial Yuan seeks to introduce a lay judge system, the primary reason should not be to increase the accuracy of judgments, as the Judicial Yuan likely views the correctness of judgments as the professional responsibility of judges. By introducing a lay judge system, allowing citizens to actually participate in judicial adjudication alongside legal professionals can foster greater public understanding of the judicial system and its personnel. It prevents the judiciary from feeling "inscrutable" to ordinary citizens, and ultimately enhances public trust in the judiciary—which may well be the principal objective (or at least one of the primary objectives) of introducing the system.
   
5. Legal Education Function
   Past legislative reforms in civil and criminal procedure over recent years have made it relatively difficult for citizens to "directly" perceive the Judicial Yuan's determination to reform the judiciary. Introducing a lay judge system, however, may provoke an entirely different "firsthand" experience for citizens. After all, citizens would be required (whether willing or not) to take a seat in the courtroom and act as judges for a few days, directly experiencing defendants, victims, and criminal circumstances. Such an immersive educational approach undoubtedly yields a far greater impact on civic legal education than other indirect methods. This educational function is particularly emphasized whether adopting a jury system or a lay judge system.
   
6. Impact on Adjudication Quality
   Judicial adjudication is not merely the application of law; it also requires the investigation of facts that serve as the premise for legal application. To improve the quality of adjudication (whether regarding fact-finding or legal application), introducing the German lay judge system may not be the optimal or superior institutional choice (Note 1), and could even "produce the opposite effect."
   Driven by social development and the expanding functions of the state, new types of legal issues are emerging (particularly in the fields of administrative, economic, financial, and social law) in which ordinary citizens are increasingly incapable of participating in court adjudication. Even within traditional legal fields (such as civil and criminal law), particularly in the civil law system (as opposed to the common law system), the emphasis placed on legal dogmatics (Rechtsdogmatik) and legal logic far exceeds what ordinary citizens might imagine. Furthermore, legal theory is developing at a rapid pace, and lay participation in trials may (gradually) lead citizens to feel overwhelmed. This is also evidenced by Germany's experience in abolishing the jury system in 1924.
   The quality of adjudication is inextricably linked to the correctness of judgments. Because the correctness of a judgment concerns the safeguarding of a defendant's constitutionally guaranteed rights, procedural safeguards for defendants cannot be lightly stripped away on grounds of public interest or social welfare (or even the judiciary's own interests). The legitimate justification for introducing a lay judge system should likewise be built upon the foundation of "substantive justice," namely, the correctness of judgments. Simply relying on the argument that a lay judge system enhances public trust in the judiciary, or that lay judges are randomly selected from the general public (the so-called democratic principle), does not necessarily lead defendants to readily accept judgments. Moreover, in the case of judgments unfavorable to defendants, defendants will inevitably attack the verdict on the grounds that lay judges lack legal training and that the judgment is therefore incorrect. Coupled with the prevailing sentiment of severe penal punitivism still permeating Taiwanese society today, it can be anticipated that lay judges would likely impose harsher sentences on defendants, and defendants may not necessarily benefit from having lay judges on the bench.
   

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Footnotes

1. For a differing view, see Lin Yung-mou (林永謀), who argues that only individuals endowed with unpretentious lay sentiments can comprehend what constitutes fairness and justice, and thereby render deeply persuasive judgments. The identity of the adjudicative body is not the central issue. See Lin Yung-mou, cited work above, p. 3.