4. The Prosecutor’s System

General Secretary of the CPC Central Committee, Xi Jinping recently made important instructions on political and legal work and stressed “paying more attention to the idea of system, thinking in the way of rule of law and the guidance of strengthening the local organs”, Xinhua News Agency, Beijing, January 9, 2021. The Attorney-General Zhang Jun of the SPP conveyed this spirit at the meeting of “Studying and Implementing the Spirit of the National Two Sessions (NPC and CPPCC)” for the prosecutorial organs at all levels, March 15, 2021.

Liu (2008, p. 24).

See He (2001, p. 005).

See the website of the Crown Prosecution Service, http://​www.​cps.​gov.​uk. I visited this website on August 16, 2021.

As to the details of qualifications, procedure of appointment in England and Wales, United States, France and Germany, due to the little change of them in recent years, you may see Ji (2010, pp. 99–100).

German Judiciary Act in the version promulgated on 19 April 1972 (Federal Law Gazette I, p. 713), as last amended by Article 1 of the Act of 22 November 2019 (Federal Law Gazette I, p. 1755).

For the large-scale activity of promotion through competitive of the SPP in 2011, I was an experienced person and knew all kinds of details well, the introduction and discussion here are based on my own experience and thinking.

See Xu (2011, p. 001).

See Xu (2011, p. 001).

Here, the appointment and removal of prosecutors also include the appointment and removal of directors of the procuratorates at all levels in China. In addition, I’d like to use the world “prosecutor” instead of “procurator” for the readers in other jurisdictions to understand it easily though the word “procurator” is much more appropriate to express the different meaning for Chinese prosecutors since the procedure for their appointment need to be approved by the People's Congress at the same level.

See Wang Guiwu (1991, pp. 653–655).

From 2016, there was a reform of the quota control system of prosecutor in the prosecutorial organs at all levels in China. So, the promotion from an assistant prosecutor to a prosecutor was cut down. The channel of administrative posts is separated from the post prosecutor. In addition, after the reform of the interior institutions of the prosecutorial organs from the end of 2018, the divisions under the departments of the SPP have been changed into the different teams of handling cases. Such reform will be introduced in the chapter of reform of this book.

Hu Jintao: “Speech at the Conference Celebrating the 90th Anniversary of the Founding of the Communist Party of China”, Xinhuanet, July 1, 2011.

See “Inquiry looks at Rapke furore by Richard Willinham”, the Age, Jan.11, 2011.

Bian (2006, p. 197).

As to the funds of the local procuratorates, there is another reform carried out from 2016. At present, the case handling funds are basically no problem. I’d like to discuss the funds in detail later in this chapter.

The First Prosecutors Law was adopted at the 12th meeting of the Standing Committee of the 8th National People's Congress on February 28, 1995.

The Chinese word “bianzhi” means the organization setting, quota of personnel and post distribution. Here I use Chinese pinyin to express it since there is no suitable English word to express the same meaning.

In NSW, the agency is called the Office of the Director of Public Prosecutions, which was founded in July13, 1987 in accordance with the Director of Public Prosecutions Act 1986.

Liu (2008, p. 24).

The Central “2010–2020 Cadre Education and Training Reform Outline”, http://​www.​gov.​cn/​jrzg/​2010-08/​17/​content_​1681885.​htm.

New media of the Supreme People's Procuratorate: “It's settled that ‘this is what the procuratorial work should do during the 14th Five-Year- Plan period!”, January11, 2021. All documents related to the procuratorial organs are from the official website of the Supreme People's Procuratorate, the website is https://​www.​spp.​gov.​cn/​.

For details, see the “Guiding Opinions on Procuratorial Education and Training Reform for 2011–2020” by the Supreme People's Procuratorate.

In 2006, the Supreme People’s Procuratorate made the National Training Program for Procuratorate Cadres during the "Eleventh Five-Year Plan", referred to as “Training Plan” in this part.

As to the expert evidence, I have published several papers including the paper of “the Value of Expert Evidence and the Revision of the Judicial Expertise System in China (Chinese Journal of Law, vol.2, 2013) and a monograph written on the basis of my dissertation: Comparative Study on Expert Evidence System. To some extent, these research achievements have contributed to the amendment of the Criminal Procedure Law of China in 2012 on employing experts with special knowledge to testify in court, which is specifically stipulated in paragraph 2 of the Article 192 of the law, which is: “the prosecutor, the parties, the defenders and the agents may apply to the court to notify the persons with expertise to appear in court and put forward opinions on the expert opinions made by the appraiser”.

The Civil Code of the People's Republic of China was adopted at the third session of the 13th National People's Congress of the P.R.C on May 28, 2020 and was officially implemented on January 1, 2021.

As to the details of training objectives, see the “Guiding Opinions on Procuratorial Education and Training Reform for 2011–2020” by the Supreme People's Procuratorate and the document of “It's settled that ‘ this is what the procuratorial work should do during the 14th Five-Year-Plan period!”, the SPP, January11, 2021.

The unified judicial examination in China means the examinations of qualifications for judges, prosecutors and lawyers, which began in 2001.

Jiang Hong: Prosecutors should not only be “artisans” but also “polymaths”, Procuratorial Daily April 10, 2019.This is a requirement put forward by Zhang Jun, Attorney-General of the SPP, at the first business lecture for leading cadres of the SPP on April 9, 2019. The lecture was conducted by means of video conference, covering the four-level procuratorial organs in China.

Here, I still use the related contents of the 13th Five-Year-Plan since most of the objectives and contents are still the goals and training contents to be continued in the next few years and on the other hand, there is no new training plan having been made so far.

Xu Yingyan, “the Procuratorial Education and Training Plan During the 13th Five-Year Plan Period”, issued by the SPP, Procuratorial Daily, Jan 9, 2017.

For example, the "Education and Training Plan for National Procuratorial Cadres during the ‘11th Five-Year Plan’"(2007~2011) is made in according with the "11th Five-Year Plan for National Economic and Social Development of the People's Republic of China" and "Decision of the Central Committee of the Communist Party of China on Further Strengthening the Work of People's Courts and People's Procuratorates" as well as the "2006–2010 National Cadre Education and Training Plan", so the time is one year later compared with national cadre education and training plan. Starting from 2021, there is a new five-year plan, and 2021 is the first year of the 14th Five-Year Plan.

See the "Education and Training Plan for National Procuratorial Cadres during the ‘11th Five-Year Plan’"(2007~2011), "Procuratorial Daily" January 24, 2007.

He (2005, p. 520).

See the CPS website: CPS Business Plan 2021–22. There are around 6000 people who work for the Crown Prosecution Service, across England and Wales in a variety of roles. Almost half of employees are lawyers, who are responsible for deciding whether to prosecute cases, and represent the Crown in many hearings in the courts. http://​www.​cps.​gov.​uk.

Fortunately, I attended this training program from the beginning to the end while I served as a visiting scholar in the Law School of NYU in 2014. After I came back to Beijing, I wrote a paper on the prosecutors training from a comparative study, see Ji (2015, pp. 72–74).

The three-person talk is well known in China since in 2001, the first three-person talk happened and at that time, Zhang Jun, Director of the N0.1 Department of Criminal Cases of the Supreme Court, Jiang Wei, Director of the Department of Prosecution of the SPP, and Tian Wenchang, Director of the Criminal Committee of the National Association of Lawyers, respectively, stood in the perspective of judges, prosecutors and lawyers on the theory of criminal proceedings. There was a lively discussion with practical issues and there was a book of "Three Talks on Criminal Proceedings from Prosecution, Defense and Trial” on such talk which was published. After 10 years, while the revision of the Criminal Procedure Law in 2012, in early 2013, in order to interpret the new law from the three aspects of prosecution, defense and trial, Zhang Jun, then deputy secretary of the Central Disciplinary Inspection Commission, Jiang Wei, the deputy secretary-general of the Central Political and Law Commission and Tian Wenchang, still a lawyer, conducted the second "Three-person Talk" and from the perspective of judges, prosecutors, and lawyers, they had heated discussions on the theory and practice of criminal proceedings. The book of "New Three-person Talk of Prosecution, Defense and Trial" was published by Peking University Press in 2014. So, this time was the third one for the three-person talk, but the role of the two has changed a lot, except for the lawyer is still a lawyer.

Shanghai Pudong New District People's Procuratorate Research Group: “Prosecutor Professional Researching System Construction and Suggestions for Improvement”, “Criminal Research”, Vol.3, 2019, pp. 90~91. Such new prosecution training began to be implemented in the procuratorial organs in Shanghai with the formulation of the “Measures for the Administration of the Professional Researching of the Prosecutors of the Procuratorial Organs of Shanghai (Trial)” which was made by the People’s Procuratorate of Shanghai in 2015. Article 2 of the “Measures” stipulates that “the Prosecutor's business researching is to improve the prosecutor's business capacity and theoretical level comprehensively and serve the enforcement and handling cases. The prosecutor shall, within a certain period of performance of duties, leave the post and concentrate to do research on the prosecution business continuously for a period time in order to complete the corresponding researching subjects and pass the corresponding evaluation system. “This is a new exploration of the prosecutor training.

In more than 10 years, I have done several research projects which are related with the prosecutors’ professional safeguard, such as Comparative Research on the System of Prosecution Service between China and Australia, the Research on the Procuratorial System in Belarus and the Research on the Functions and Professional Safeguard of Prosecutors in Germany. Then, I have published a book on Comparative Research on the System of Prosecution Service between China and Australia and several papers, such as "Belarus Gives the Prosecutors a Broad Powers and Safeguards", "Procuratorate Daily" February 3, 2015 academic edition; " An Empirical Research on the Generation of Prosecutors of the District Prosecution Service in the United States and Professional Safeguard", "the Chinese Procurators", Vol. 19, 2015; “On the Powers and Professional Safeguard of Australian Prosecutors", co-authored with Li Xin, "Journal of Comparative Law", Vol. 1, 2017.

As to “Jiǎnchá guān de shēnfèn bǎozhàng hé wùzhí bǎozhàng”, in this book, since there is no official translations and direct English words to express them, I’d like to translate them into “the prosecutor's personal safeguard (shēnfèn bǎozhàng) and impersonal safeguard (wùzhí bǎozhàng). The prosecutor’s personal safeguard refers to the safeguard of the prosecutor’s identity, independence, dismissal and punishment, etc.; the impersonal safeguard refers to the safeguard of the prosecutors’ financial treatment, the conditions of office, vocation, the house and the chances for their children to go to school and so on.

See Xu Jimin and Zhang Chengsi (2020, p. 28).

Zhu (2018, p. 5).

Jia (2020, p. 1).

According to the SPP’s statistics, by the end of 2019, the average proportion of procuratorial organs nationwide applying the procedure of accepting confession and punishment reached more than 83%.

This information was provided by a prosecutor of the procuratorate during the empirical field study.

According to statistics as of April 2017, after the quota control of prosecutors  system reform began in 2016, the first batch of post prosecutors completed by the procuratorates of 31 provinces, autonomous regions and municipalities across the country and the procuratorate of Xinjiang Production and Construction Corps was 87,624. The proportion of prosecutors does not exceed 39%, so the total will not change much. See Hu Zejun: “Speech at the Promoting Conference on the Reform of the Judicial Responsibility System by the Procuratorates at All Levels”, Haikou Conference, Hainan province, April 11, 2017.

See Wan (2015, p. 003).

This ratio was provided by a prosecutor of a local procuratorate during our empirical field study in Yunnan, Sichuan and Tibet at the end of May, 2019. Probably, due to the different degrees of implementation of the prosecutor's responsibility system for handling cases, the ratio of handling cases independently by the post prosecutors may be different. But overall, after various reforms over the years, the independence of Chinese prosecutors in handling cases has been strengthened to varying degrees.

Wang (2014, p. 003).

On April 23, 2019, the newly revised Articles 12, 13 and 20 of the Prosecutors Law adopted by the Standing Committee of the 13th National People's Congress made comprehensive regulations on the terms and conditions of prosecutors' appointment and removal.

The Regulations were adopted by the 79th Meeting of the 10th Procuratorial Committee of the SPP on July 5, 2007, and its Article 13 stipulates that: In the law enforcement activities, although there are errors, one of the following situations exists, then the prosecutors are not held accountable for law enforcement faults: (1) the prosecutors have no intention or negligence; (2) the relevant laws and disciplinary provisions are exempted or not prosecuted.

In 2019, Article 50 of the "Prosecutors Law" of China stipulates that when the Prosecutor Disciplinary Committee considers disciplinary matters, the prosecutor in question shall have the right to apply for evasion of the relevant person, and shall have the right to make statements, provide evidence and defend himself. Among the rights provided Article 11 of this Law, they also have the right to "make a complaint or charge", which is a great progress, however, there is still no specific procedure for how to make a complaint.

See Li (2017, p. 107).

For details, See the stipulations of Article 23 of the Director of Public Prosecutions Act 1983 of New South Wales which as amended and in force on 1 July 2015 and Article 9 of the Crown Prosecutors Act 1986 of New South Wales.

For details of the professional safeguard of prosecutors in Belarus, please see Ji Meijun and Saciko Paul (2012, pp. 153 ~ 154).

For the specific details of this case, please refer to Liu (2018, p. 56).

I wrote this passage on July 14, 2020, only a week later after the tragedy happened. See the related news report: The newest news! The police informed the investigation of the bus crashed into the lake in Anshun, Guizhou: the driver deliberately retaliated against the society, July 13, 2020. https://​www.​thepaper.​cn/​newsDetail_​forward_​8249757.

Wang (2019, p. 003).