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2022 | OriginalPaper | Buchkapitel

3. The Functions and Powers of the Procuratorial Organs 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 functions and powers of the procuratorial organs refer to the powers which the procuratorial organs can exercise in practice, whose disposition is the core content of the procuratorial system in a country. In most Western coutries, the prosecutorial power belongs to the administrative power under the system of separation of powers. However, in China, due to the characteristics of the socialist procuratorial system and the traditional culture, the procuratorial organs are regarded as a judicial one and the procuratorial power is a general term for various powers given to the procuratorial organs by Chinese Constitution and laws. At present, the procuratorial power in China is very extensive, which includes the powers of procedural supervision, public prosecution, approving or deciding arrest, the public interest litigation, investigaion of some duty crimes and other powers endowed by the related laws, among which, the power of approving the arrest and the power of initiating the public interest litigation are special ones enjoyed by the procuratorial organs in China. This chapter discusses them one by one in detail, such as the definition, operation, existing problems and feasible suggestions. I have to say, in the era of big data, how to give full play to these functions and powers to acheive the national security, the people’s peace and the social stability which is really a major challenge faced by the procuratorial organs at all levles in China.

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Vorheriges Kapitel On the Organizations of the Procuratorial Organs in China

Nächstes Kapitel The Prosecutor’s System

Gong (2018, p. 38).

As to the discussion on the nature of procuratorial power, see Zhang (2019, p. 61).

The Lord Goldsmith QC, Her Majesty’s Attorney–General for England, Wales and Northern Ireland, made a speech in the People’s Procuratorate of Beijing, whose topic was “The Role of the Prosecutor in England and Wales in the Changing Criminal Justice System of the 21^st Century,” September 4, 2002.

As to the various characteristics of the procuratorial system in China, I have discussed them in Chap. 1.

As to the name, whether it is called the power of legal supervision or the power of procedural supervision, there was an aggressive discuss in the academic and practical circles. See my book on the Comparative Study on the System of Prosecution Service between China and Australia, Peking University Press, March 3, 2013, p. 158. In addition, the connotation of the legal supervision has been changing in 70 years, see Li Long and Peng Xia (2019, pp. 101–108).

As to the scope of the legal supervision of the procuratorial organs in China, there are no such specific stipulations by the law, so the scope is not definite and the scholars have done lots of research and argued about it. However, the main contents of the legal supervision are well-known by the Chinese prosecutors and here I discuss it with such common knowledge. The scope of the legal supervision is much larger than that of the procedural supervision, which is my opinion.

In order to carry out the power of legal supervision on civil cases and administrative cases, after the reform of internal institutions by the SPP at the end of 2018, the SPP established the Procuratorial Department of Civil Cases and the Procuratorial Department of Administrative Cases. The procuratorial organs at all levels across the country established the same offices successively.

See Sun (2004, pp.163~164).

Sun (2019, p.4).⁹Chen (2000, p. 94).

As to those difficulties and problems of the supervision on filing a case in practice, you may see: Ji (2013, pp. 148~155).

Sun (2019, pp. 3–4).

From April to June, 2019, in order to implement the activities of the cooperated research project on Strengthening Human Rights Protection and Procuratorial Supervision in Investigation and Adjudication Phases between China Prosecutors Society and the Danish Institute for Human Rights, we did empirical study on the topic of investigation supervision and adjudication supervision by visiting more than 20 procuratorates at different levels. While we visited one city, we went to two procuratorial organs for interviewing and discussing the same topics and these cities were Shenzhen, Kunming, Chengdu, Lhasa, Linzhi, Guangzhou, Hangzhou, Nanjing, Suzhou, Dongying, Dezhou and Qingdao. So, what I discussed and the references about the present situations of supervision on investigation and adjudication in this chapter were collected during the survey by ourselves.

Gao (2018, p. 33).

These data and information were provided by the prosecutors from the Chengguan District Prosecution Service of Lhasa when we did field studies there in May, 2018.

Yang (2016, part 1).

According to the Report on the Work of the People’s Courts in 2015 published by the Supreme People’s Court in March, 2016: In 2015, the Supreme People’s Court accepted 15,985 cases in total, up 42.6% year on year, concluded 14,135 cases, up 43.04% year on year; the local people’s courts accepted 19,511,304 cases, up 24.67% year on year, and concluded 16,713,793 cases, up 21.14% year on year. Among cases of all types concluded in 2015, criminal cases accounted for 7.44%, civil and commercial cases 62.86%, administrative cases 1.63%…….from these numbers, you may see why the procuratorial organs should strengthen the supervision on the civil adjudication in recent years by establishing the independent procuratorial department of civil cases and the procuratorial department of administrative cases in the SPP in 2018.

This year, the Supreme People's court, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued a document to launch a special action, calling for a 30-year retrospection of cases involving commutation of sentence, parole and temporary execution outside prison. The action is from April to October, 2021.

Li (2003, p. 569).

Mike (2006, lecture).

As to the system of the people’s supervisors, you may see Chen (2019, pp. 3–16).

Mike (2006, lecture).

As to the supervision of civil litigation, it is a special function of the procuratorial organs in China, but it is very complex problem by involving many aspects, such as the legislation, legitimacy and necessity, the scope, the object, the method and procedure and so on, here is only a brief introduction and discussion.

Zhang (2003, p. 102).

Article 200 of the Civil Procedure Law stipulates the retrial reasons for all kinds of circumstances, such as (1) There is new evidence sufficient to overturn the original judgment or ruling; (2) the basic facts identified in the original judgment or written order are lack of evidence; (3) the main evidence of the fact found in the original judgment or ruling is forged; (4) there is a definite error in the application of the law in the original judgment or written order; (5) when trying the case, the judges committed embezzlement, bribery, malpractice for personal gain or perverted the law in adjudicating the case and so on.

“Rules of the People’s Procuratorate for the Supervision of Civil Procedure” was adopted at the 62nd meeting of the 13th Procuratorial Committee of the Supreme People’s Procuratorate on February 9, 2021, and it will go into force on August 1, 2021, the Article 3 of which stipulates that the people’s procuratorates shall exercise legal supervision over civil litigation activities by means of appeal and procuratorial suggestions.

Zhang Qifei (2015, pp. 24–26).

Jiang (2021, p. 302).

The decision of the CPC Central Committee on Several Major Issues of Comprehensively Promoting the Rule of Law was adopted by the Fourth Plenary Session of the 18th CPC Central Committee on October 23, 2014. Its purpose is to implement the strategic plan made at the 18th CPC National Congress and speed up the construction of a socialist country ruled of law. The main contents are the second plate constituted by the second part to fifth part, which starts from the current basic pattern of the rule of law and discusses and deploys the scientific legislation, strict law enforcement, fair justice and law-abiding by the whole people. This decision is the general guide of the Communist Party of China to bring the people of the whole country to realize the rule of law. It puts forward some major reform measures, such as establishing a circuit court by the Supreme People's court, exploring the establishment of the people's courts and the people’s procuratorates across the administrative divisions, exploring the establishment of a public interest litigation system initiated by the procuratorial organs and promoting the reform of a trial-centred litigation system, etc. They are the key contents of judicial reform in china in the following years, which has great practical significance and far-reaching historical significance.

As to the history of the civil and administrative procuratorial work, you may see Song (2021, pp. 45–46).

Xie Pengcheng and Chen Lei (2021, p.003).

Zhang Xueqiao (2019, p.003).

The number is from the Work Report of the Supreme People’s Procuratorate in 2017, which was reported by Attorney General Cao Jianming to the National People’s Congress on behalf of the SPP on March 12, 2017.

Jiang (2019, p.6).

The number is from the Work Report of the Supreme People’s Procuratorate in 2021, which was reported by Attorney General Zhang Jun to the National People’s Congress on behalf of the SPP on March 8, 2021.

As to the origin of public prosecution, you may see Zhu (2007, pp. 113–114).

Zhang (2000, pp.175–182).

As to the relationship between public prosecution and private prosecution in China's practice, you may see Xiong (2021, pp. 31–34).

In accordance with the newly revised CPL of China in 2018, the Criminal Procedure Rules of the People’s Procuratorate, adopted at the 28th meeting of the 13th Procuratorial Committee of the Supreme People’s Procuratorate on December 2, 2019, and shall come into force as of December 30, 2019.

Zuo (1999, p. 251).

For example, 4.6 of Crown Code for Prosecutors which was published on Oct. 24, 2018, stipulates: Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defense case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. So, the prosecutors in England and Wales needn’t consider whether the court is to convict the defendant or not, but they must consider whether the evidence of a case is sufficient or not, then to consider the second stage whether the public interest does require a prosecution or not.

Article 16 of the CPL of China in 2018 stipulates: Under any of the following circumstances, the suspect or defendant should not be prosecuted for his criminal liability. If the criminal liability has been prosecuted, the case shall be annulled, or no prosecution shall be instituted, or the trial shall be terminated, or the offender shall be acquitted:

(1) If the circumstances are obviously minor and the harm is not serious, it is not considered a crime;

(2) A crime has passed the limitation period for prosecution;

(3) Exemption from punishment by special amnesty order;

(4) Where a crime is dealt with only after being complained in accordance with the Criminal Law, there is no complaint or the complaint has been withdrawn;

(5) the suspect or defendant has been dead;

(6) Other laws provide for exemption from the criminal liability.

Zhang Qiong (2000, p. 338).

Zhang Jun, the Attorney-General of the SPP, the Work Report of the Supreme People’s Procuratorate——At the Fourth Session of the 13th National People's Congress on March 8, 2021.

Kellie Toole (2019, p. 232).

Wang (2000, p.91).

As to the provisions of the Article 16 of the CPL, see note 42.

The specific circumstances of conditional non prosecution are stipulated in the Articles 282 to 284 of the CPL of China in 2018.

Liu (2014, p.206).

Kellie Toole (2019, p. 233).

The definition of proof standard is a very complex issue, there will be no more discussion here.

The Rules of Criminal Procedure of the People’s Procuratorate, which were adopted at the 28th meeting of the 13th Procuratorial Committee of the Supreme People’s Procuratorate on December 2, 2019, are hereby promulgated and shall enter into force on December 30, 2019.

The statistical data is from the website of the Supreme People’s Procuratorate, “2020 data of main cases handled by the national procuratorial organs (questions and answers),” March 8, 2021.

Zhu (2007, p. 122).

Chen (2002, p. 63).

Zhu (2007, pp. 122~125).

Sun (2001, p. 127).

Ma (1996, p. 196).

Chen (2001, pp. 82 ~ 83).

Zhu (2007, p. 125).

Actually, the CPL in 1979 and 1996 nearly made the same stipulations of such investigation power of the procuratorates in China with the different scope. In the paragraph 2, Article 13 of the CPL in 1979, the stipulations are: the crimes of corruption, crimes of violating the democratic rights of citizens, crimes of dereliction of duty, and other cases that the people's procuratorate deems to be directly accepted by the people’s procuratorate shall be investigated by the people's procuratorate and the decision whether to initiate public prosecution. The paragraph 2, Article 18 of the CPL in 1996 and in 2012 made the exactly same stipulations, which narrowed the scope of other cases to the other major criminal cases committed by the staff of state organs, which need to be directly accepted by the people’s procuratorate, the people’s procuratorate may decide to investigate the case upon the decision of the people’s procuratorate at or above the provincial level.

The number of cases is from the Work Report of the Supreme People’s Procuratorate in 2016, which was reported by Attorney General Cao Jianming to the National People’s Congress on behalf of the SPP on March 13, 2016.

As stated in Article 1 of the Law of Supervision.

The paragraph 2 of Article 19 of the Revised CPL in 2018 stipulates the crimes directly investigated by the procuratorial organs, such as illegal detention, extorting confessions by torture and illegal search committed by the judicial officers using their functions and powers to infringe upon the citizens’ rights and impair the judicial justice.

The detailed contents of the discretionary investigation power of the procuratorial organ in China, see Xie Dengke (2019, pp. 31~34).

As to more information about the supplementary investigation power, its functions, existing problems, development direction and improvement measures, see Bian (2021, pp. 1–14).

Deng (2007, p.23).

As to the discussion on the nature of the procuratorial power, see Long Zongzhi, “On the Nature of the Procuratorial Power and the Reform of the Procuratorial Organs,” Law Science, No.10, 1999; Xie Pengcheng, “On the Nature of the Procuratoiral Power,” Law Science, No. 2, 2000; Chen Weidong, “the Reflection and Reconstruction of the Procuratorial Power in China––– Analysis with the Core of Public Prosecution,” CASS Journal of Law, No. 2, 2002; Han Yunzhu, “Jurisprudential analysis of the nature of procuratorial power,” Legal System and Society, No.14, 2017.

Tan (1999, p. 12).

Hao (1999, pp. 71–72).

Chen (2000, p. 691).

Lu (2010, p. 47). As to the various arguments, viewpoints, analysis and evaluations on the nature of the procuratorial power, you may also read Lu’s book, pp. 40 ~ 49.

Xu (2000, pp. 58–63).

Crown Prosecutors Act 1986 No 208, New South Wales, Australia.

As to the independence of a prosecutor in Australia, see Ji (2013, p. 135).

Before the reform of supervision system in 2018, another heated discussion issue was the investigation power of duty crime, see Zhu (2007, pp. 125–129). Now, it is unnecessary to discuss such issue more.

Chen (2003, p. 162).

He (2000, p. 370).

The Article 380 and 381 of “the Criminal Procedural Act of Italy” stipulate the compulsory arrest and optional arrest, the original stipulations are as follows:

Art. 380. Compulsory arrest in the act.

1. The officers and officers of the judicial police proceed to arrest anyone who is caught in the act of a culpable crime, committed or attempted, for which the law establishes the sentence of life imprisonment or imprisonment not less than a minimum of five years and a maximum of twenty years.

Art. 381. Optional arrest in the act.

1. Officers and judicial police officers have the option of arresting anyone caught in the act of a culpable, consummated or attempted crime, for which the law establishes the sentence of imprisonment for a maximum of three years or a culpable crime for which the law establishes the penalty of imprisonment of not less than five years.

The Article 386 of the Criminal Procedural Act of Italy” stipulates the duties of the judicial police in the event of arrest or detention. In addition, the content of Article 389 has not changed a little since 1988.

Song (2017, p. 89). Actually, as to this topic, I wrote another paper “on the Legislative Proposals for the System of Investigative Supervision” which was published in the book of the Theory and Practice of the Procedural Law that was edited by Chen Guangzhong, Wang Jiancheng and Zhang Weiping, Peking University Press, September, 2006.

Ji (2011, pp. 93~97).

Chen Guangzhong (2006, pp. 378–379).

These words were expressed by the front-line case-handling prosecutor when we went to a county procuratorate for field study at the end of April, 2019.

As to the more information of the procuratorial hearing, see Peng (2021, p.3).

He Jiahong and Liao Ming: “Idea of Values for Multiple Balances and the Meaning of Justice for Law Enforcement”—Two people talked about the idea of law enforcement, Justice Network, February 22, 2006.

He (2004, preface).

Zhang (2005, p. 19).

He (2005, pp. 33~34).

Wang (2011, p. 5).

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Titel: The Functions and Powers of the Procuratorial Organs 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_3