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2022 | OriginalPaper | Buchkapitel

1. Origin and Characteristics of the Procuratorial System in China

verfasst von : Meijun Ji

Erschienen in: Brief Introduction to the Procuratorial System in China

Verlag: Springer Nature Singapore

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Abstract

The present procuratorial system in China is an important part of Chinese judicial system. Although it is a historical choice made by New China in the process of construction both for political power and legal system, there are some arguments on its origin, such as whether the “Yushi” institution of ancient China is the origin or not. However, the emergence of any system is the result of interaction and influence of multiple factors, so the origin of the procuratorial system in China is not necessarily unique. Due to the complexity of its origin and twists of its developing history, the procuratorial system in China has its own characteristics and advantages, such as the independent status, the state organ of legal supervision and so on. So, how to give full play to the characteristics and advantages of the procuratorial system in China is a serious challenge faced by the procuratorial organs at all levels in a new era.

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Nächstes Kapitel On the Organizations of the Procuratorial Organs in China

In this book, China refers to the mainland of the People’s Republic of China. In China, at present, the judicial system is constituted by the procuratorial system and the court system, that is to say, the procuratorial organs are paralleled with the courts, which is determined by the political system of the People’s Representative Congress in China. Due to the distinctive features of the procuratorial system in China, I’d like to use the word of “procuratorial” instead of the word of “prosecutorial” to show that the system of prosecution service in China is very different from that in other jurisdictions in the world, especially those jurisdictions of the Common Law legal system.

Sun (2004, preface).

Yushi institution was a supervisory system with one official of high ranking to supervise other officials’ illegal behaviors and report them to the emperor in ancient China, which is something like an ombudsman or a censor in European countries. However, the Yushi official had much more extensive powers. Since it is difficult to find an exact English word to express the same meaning, in this book, I just use Chinese Pinyin to describe its special meaning and functions of such system. If you want to know the details of the Yushi institution, you may read the book of Criminal Prosecution in the People’s Republic of China and the United States of America: A Comparative Study, written by He Jiahong with Jon R. Waltz, China Procuratorial Press, March, 1995, pp. 109–123.

The Qing dynasty, or Manchu dynasty, was the last Empire in China. The dynasty ruled the country from 1644 to 1912 with a brief restoration in 1917 (the latter lasted only 11 days).

Wang (2008, p. 15).

Sun (2004, p. 5).

Liu (2007, pp. 115–125) and Sun (2009, pp. 55–56).

He and Waltz (1995, p. 109).

The Qin dynasty was the first dynasty of Imperial China (from 221 to 206 BC). Founded by Qin Shi Huang (first Emperor).

Guangxu, or Isingiro of Czytane (1871–1908), the second last Emperor of Qing epoch. He is known for his reform efforts.

In 1912, Emperor Pu Yi abdicated, which was the end of the Qing dynasty (ruled the country from 1644 to 1912. After that, from 1912 to 1928, the country was ruled by the Beiyang government led by Yuan Shikai.

The Republic of China is a state that existed from 1912 to 1949. It included the modern territories of mainland China and some historical ones: Mongolia and Taiwan. It was preceded by the last Chinese Imperial dynasty (Qing).

The formation of the People's Republic of China was proclaimed on October 1, 1949 by Mao Zedong.

The Soviet Republic of China was a Soviet Republic under the leadership of the Communist party of China that existed in South—Central China since 1931. In 1937, it was transformed into a special administrative region with an autonomous local authority reporting directly to the Executive yuan of the Republic of China (existed up to 1950).

As to the detailed history of the germination and establishment of the People’s Procuratorial System, you may read the paper of “Research Situation and Related Literature of the History of the Procuratorial System in China” written by Hou Xinyi, Journal of National Prosecutors College, Vol. 24 No. 4, 2016, p. 155.

Sun (2004, pp. 36–37).

The liberation war, otherwise called the Chinese Communist revolution, began in 1946 after the Second Japanese-Chinese war (1937–1945) and was the second part of the Chinese civil war (1945–1949).

The Research Department of the Supreme People’s Procuratorate edited and printed: Compilation of the Historical Materials of the Procuratorial s System in China, Article 27 of Interim Bills of Organic Regulations for Judicial Organs at Various Levels in the Kanto Region, 1987, p. 187.

The Institute of Contemporary China (2019, p. 67).

In 2018, there was a great reform in the judicial system in China, which was establishment of the Supervision Committee and the power of anti-corruption of the procuratorial organs in China was transferred to this committee at all levels.

Zhen et al. (2010, preface, p. 3).

Min (2019, p. 3).

Yang Yichen: Work Report of the Supreme People's Procuratorate, the first session of the 7th National People's Congress was held in Beijing on April 1, 1988.

From June 29 to 30, 2006, the 12th National Conference on Procuratorial Work was held in Beijing. The conference reviewed the procuratorial work since the 11th National Conference on Procuratorial Work, analyzed the situation and tasks faced by the procuratorial work and put forward the general tasks of the procuratorial work at present and in the future. The conference called on the procuratorial organs across the country to accurately grasp the new requirements raised under a new situation and new tasks for procuratorial work with inspiring up spirit, strengthening confidence, uniting as one and keeping to forge ahead, and constantly promote the procuratorial cause of socialism with Chinese characteristics. As to the evolution of the concept of “socialist procuratorial system with Chinese characteristics”, you may see Min (2019, pp. 3–5).

Min (2019, p. 5).

Sun (2016, p. 18).

The Constitution of the P.R.C is the fundamental law of the P.R.C, which provides that it has the highest legal effect. After the founding of the P.R.C, there are totally four constitutions which were adopted on September 20, 1954, January 17, 1975, March 5, 1978 and December 4, 1982. The current Constitution was made in 1982 and has been revised five times in 1988, 1993, 1999, 2004 and 2018 respectively.

Before the establishment of the Committee of Supervision, the procuratorial organs could investigate all duty crimes, but now, the procuratorial organs can only investigate 14 crimes committed by the judicial personnel using their powers to infringe civil rights and damage the judicial justice in accordance with the stipulations of Article 19 of the New Criminal Procedure Law of China which was amended on October,2018 and other relevant legal provisions, such as crime of illegal detention, crime of illegal search and crime of extorting a confession by torture, etc.

Sun (2016, p. 19).

As to the arguments of the power of legal supervision, it will be discussed in detail in Chap. 3 of this book.

As to the detailed supervision of these subjects, see Sun (2016, pp. 20–21).

At present, in China, each procuratorate has a committee which is called the procuratorial committee that is the highest department to discuss and decide those complicated and important cases.

The Opinion includes five parts: (1) General requirements; (2) Giving full play to the function of legal supervision to serve the overall situation and the people's justice; (3) Comprehensively Improving the quality and effect of legal supervision and maintaining judicial justice comprehensively; (4) Strengthening the construction of excellent procuratorial team and fully implementing the judicial accountability system; (5) Strengthening the organizational safeguard for the legal supervision of procuratorial organs.

Tong (2021, p. 12).

Zhang (2021, p. 001).

See Liu (2013, p. 147).

Xi (2020, p. 46).

Gui and Jiang (2021, pp. 36–39).

90 years ago, at the beginning of the establishment of the Chinese Soviet, the first People’s power in China (established in Ruijin, Jiangxi Province on November 7, 1931), the Communist Party of China noted the importance of procuratorial organs in the political power structure led by the Communist Party, and set up the Procuratorial Organ of Workers and Peasants to investigate and deal with corruption cases and safeguard the revolutionary legal system.

Tong (2021, p. 13).

Zhang (2021, p. 001).

Since from the end of March to mid- December, 2021, I luckily participated in the No.3 Central Supervision and Instruction Group which conducted a comprehensive supervision and instruction on the education and rectification of the political and legal team in Shanxi Province for six months. Therefore, I had a more in-depth understanding of the concrete work of the political and legal team in Shanxi Province and the politics and law committees at all levels.

The Central Committee of the CPC has officially established the judicial idea of “less arrest, cautious prosecution and cautious detention” as a criminal justice policy. In April 2021, the Central Committee for the Comprehensive Rule of Law included “adhering to the criminal justice policy of less arrest, cautious prosecution and cautious detention, and promoting the application of non custodial coercive measures in accordance with the law” in the key points of work in 2021, which is a major reform measure to be studied and promoted in 2021.

Zhang (2021, p. 001).

Tong (2021, p. 14).

Xi (2020, p. 60).

As to these reforms, I’ll discuss them specifically and comprehensively in Chap. 5 of this book, here is only a brief description and introduction so that the readers can have a general understanding of them.

In the National Top Ten Excellent Prosecutors competition, the top ten are selected each time through written examination, interview and other methods. The competition is extremely fierce. All the participants who engage in public prosecution are outstanding prosecutors in the procuratorial organs. It is a supreme honor to become one of the national top ten excellent prosecutors in China.

Xi (2020, p. 62).

Xi Jinping: the explanations for the Decision of the CPC Central Committee on Several Major Issues in Comprehensively Promoting the Rule of Law (October 20, 2014). This is the explanations made by Comrade Xi Jinping on the 4th Plenary Session of the 18th CPC Central Committee of the CPC, published in the book on Administering the Country by Rule of Law Comprehensively. the Central Literature Press, December 2020, p. 98.

Xi (2020, p. 101)

Xi Jinping: “Deepening the Practice of Administering the Country by Rule of Law” (October 18, 2017), this is a part of the report by Comrade Xi Jinping at the 19th National Congress of the Communist Party of China on “Decisive Victory in Building a Well-off Society in an All-round Way and Winning the Great Victory of Socialism with Chinese Characteristics in a New Era”, published in the book on Administering the Country by Rule of Law Comprehensively. the Central Literature Press, December 2020, p. 186.

As to the reform of internal organizations, the detailed discussion is contained in Chap. 2 on the organizations of the procuratorial organs in China. The internal organization reform of the Supreme People's Procuratorate was completed by the end of 2018, and ten business departments were established.

As to the achievements of such reform, you may see the statistics data of “Main Data of Handling Cases of the National Procuratorial Organs in 2020, the website of the Supreme People's Procuratorate released it on March 8, 2021.

Xi Jinping: Safeguarding Political Security, Social Stability and People's Tranquility (January 5, 2019), this is the main point of Comrade Xi Jinping's speech at the central political and legal work conference, published in the book on Administering the Country by Rule of Law Comprehensively. the Central Literature Press, December 2020, p. 249.

Attorney General of the SPP, Zhang Jun: Speech at the 15th National Procuratorial Conference, Beijing, January 10, 2021.

Gui Wanxian, Jiang Yi (2021) Characteristics and advantages of the socialist procuratorial system with Chinese characteristics in a new era. Research on the Modernization of the Rule of Law (3)

He Jiahong with Jon R. Waltz (1995) Criminal prosecution in the People’s Republic of China and the United States of America: a comparative study. China Procuratorial Press

Liu Fang (2007) Outline of the history of procuratorial system. Law Press

Liu Jihua (2013) Reinterpretation of the integration mode of prosecution and investigation. Chinese Journal of Law (6)

Min Shan (2019) The development process and mission of the procuratorial system with Chinese characteristics in a new era. The Chinese Prosecutors (10)

Sun Qian (2016) Several Issues on the socialist procuratorial system with Chinese characteristics. The People’s Procuratorial Semimonthly (12–13)

Sun Qian (ed) (2004) Outline of China's procuratorial system. People’s Publishing House

Sun Qian (ed) (2009) The socialist procuratorial system with Chinese characteristics. China Procuratorial Press

Wang Guiwu (ed) (2008) Study on the procuratorial system of PRC. China Procuratorial Press

The Institute of Contemporary China (2019) Brief history of the People's Republic. Contemporary China Publishing House

Tong Jianming (2021) Trying to make people feel fair and just in every judicial case—learning from General Secretary Xi Jinpin's Important expositions on fair justice. Chinese Cadres Tribune (5)

Xi Jinping (2020) Strictly enforcing the law fairly realizing justice (January 7, 2014), which is a part of Comrade Xi Jinping’s speech at the central political and legal work conference, published in the book on Administering the Country by Rule of Law Comprehensively. The Central Literature Press

Zhang Jun (2021) Comprehensively carrying out Xi Jinping’s rule of law thought with great attention of political consciousness, consciousness of rule of law, procuratorial consciousness, to perform duties with due diligence. Study Times, January 22

Zhen Zhen with other authors (2010) Comparative study on the prosecution service system. Law Press

Titel: Origin and Characteristics of the Procuratorial System in China
verfasst von: Meijun Ji
Verlag: Springer Nature Singapore
Buch: Brief Introduction to the Procuratorial System in China
Print ISBN: 978-981-16-8610-8

Electronic ISBN: 978-981-16-8611-5

Copyright-Jahr: 2022
DOI: https://doi.org/10.1007/978-981-16-8611-5_1

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