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2022 | OriginalPaper | Buchkapitel

5. The Reform of Procuratorial System

verfasst von : Meijun Ji

Erschienen in: Brief Introduction to the Procuratorial System in China

Verlag: Springer Nature Singapore

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Abstract

In this era, reform is the current theme in all trades and professions, which is being carried out in varying degrees, especially in judicial system. It is occurring in China and other jurisdictions of the world. Justice and efficiency are the two goals of judicial reform for each jurisdiction. As to the reform of the procuratorial power, there is a common trend of expansion of prosecutorial power while some countries began to limit and weaken their prosucutorial power. In addition, there are two major trends in development of the procuratorial system in the world: one is to increase the prosecutor’s powers; the other is to perfect the system of prosecutor’s accountability. In China, under the background of the reform of judicial acountability system, the reform of trial-centered procedural system and the reform of transferring of anti-corruption department in recent years, the procuratorial organs have experienced unprecedented challenges and are facing a new developing opportunity. In order to integrate the existing procuratorial functions and powers and make them into full play so as to achieve the goal of balanced and coordinated development of the four kinds of procuratorial functions, the procuratorial organs in China have implemented a series of reform to meet these challenges and seek a new developing path, such as the reform of internal institutions, the reform of integration of approving arrest and prosecution, the reform of quota control of prosecutors, and so on. Whether these reforms are successful or not, they are based on the national conditions in China and will provide valuable experiences to thoroughly implement the Opinions of the CPC Central Committee on Strengthening the Legal Supervision of Procuratorial Organs in the New Era. However, these reforms are still on the way in furthe deepening and improving their corresponding measures and systems in order to perfect the procuratorial system with Chinese characteristics in the future.

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Vorheriges Kapitel The Prosecutor’s System

Stenning et al. (2019, p. 15).

See Jin and Wan (2008, p. 493).

Li (2017, pp. 124–132).

See Song (2010, p. 5).

See Ji (2020, p. 007).

See Xiong (2017, pp. 43–44).

The concept of prosecutor's discretion, basic theory, practice and role of the two legal systems have been elaborated in detail in the fourth chapter of this book. Here is just an overview of the general trend.

See Boyne (2014, pp. 91–92).

Lord Goldsmith QC: The Role of the Prosecutor in England and Wales in the Changing Criminal Justice System of the twenty-first century, a lecture in the Beijing People’s Procuratorate, China, September, 2002.

See the Code for Crown Prosecutors, published on October 26, 2018, https://www.cps.gov.uk.

At present, the division of the three departments is as follows: Home Office leads and supervises the work of the national police offices, the Minister is the chief executive of the British police system, the Department of Justice administers the court and constitutional affairs, as well as the prison service and the probation service. In addition, the office of criminal justice reform of the UK is also established in the Ministry of Justice; the Attorney General's Office is responsible for the work of the prosecution service, together with the Serious Fraud Office, the Crown Prosecution Service, the Revenue and Customs Prosecution Office and HM Crown Prosecution Service Inspectorate and the Treasury Solicitor's Department, composes the Law Officers’ Department.

See Chen (2006, p. 5).

See Organic Law of the procuratorates of the Russian Federation (promulgated by federal Decree No. 168 of November 17, 1995 and revised for the 19th time on November 28, 2009), translated by Zhao Lu, Chinese Journal of Criminal Law, Vol. 5, 2010.

For details, see Ji (2003, pp. 107–113).

See Worrall (2008, pp. 5–9).

See Davis (2007, p. 180).

See Office of the Director of Public Prosecutions Annual Report 2019–20, Australia Federal Prosecution Service website: https://www.cdpp.gov.au/.

The 14 kinds criminal crimes refer to that in the legal supervision of litigation activities, the people's procuratorate finds that judicial staff infringe on civil rights and damage judicial justice by taking advantage of their functions and powers, and file cases and investigate them directly, which is a small part of the power to investigate duty crimes left to the procuratorial organs in China after the reform of supervisory system in 2018.

[Japan] Masahiko Aoki, translated by Zhou Li'an (2001, p. 2).

Su (1996, p. II).

See Deng (2013, p. 26).

As to the system of suggestion power of sentencing, as early as in 2004, I wrote a paper of “The System of Suggestion Power for Sentencing and the Criminal Judicial Justice” which was published in the Journal of Jurist. But nowadays, the suggestion power for sentencing is related with the lenient system of accepting confession and punishment. In such a system, the prosecutor should make the concise suggestion for sentencing to the court while prosecuting the suspects who admit the guilt and punishment. In order to see such change in detail, you may see He (2020, pp. 82–83).

For details about the lenient system for accepting confession and punishment and its difficult problems, please refer to Wang (2017, pp. 17–34).

Su (1998, p. 71).

See Chen (2002, p. 3).

See Liu (2007, pp. 77–81).

Zhu (2007, p. 108).

See Chen (2006, pp. 64–65).

Liu and Zhang (2000, p. 12).

Wang (2006, p. 86).

See Tong and Wan (2008, p. 3).

The report made by Comrade Jiang Zemin at the 16th CPC National Congress comes from http://news.xinhuanet.com/ziliao.

Hu Jingtao, report at the 18th National Congress of the Communist Party of China, November 8, 2012, http://news.china.com.cn/politics/2012-11/20/content_27165856.htm

Xi (2017, p. 22).

See Chen (2008, p. 47). For the latest issues in China's judicial reform, please see Li Shaoping: the Current Situation, Tasks and Key Points of Deepening Judicial System Reform, Judicial Reform, Vol. 1, 2017, pp. 81–93.

Tong and Wan (2008, p. 23). After more than ten years, such a situation of the reform has not changed a little.

Deng (1993, p. 220).

Xie and Chen (2021, p. 003).

Jia Chunwang: Procuratorial Reform is the Only Way to Improve the Ability of Legal Supervision,—Jia Chunwang, Attorney General of the Supreme People's Procuratorate, answered Xinhua reporter's questions, http://www.sina.com.cn, Feb.28, 2006.

For details, please refer to the relevant contents in Chap. 4 of this book, here will not be repeated.

The specific contents have been described in the relevant chapters of this book.

The information about the prosecutor’s material and immaterial safeguard in Russia and Belarus was provided by Belarusian scientist and legal scholar Nadzeya V. Shakel (Ph.D., LLM). She worked in the Scientific and Practical Centre of the Prosecutor General’s Office of the Republic of Belarus for many years; now, she is a lecturer at the International Law Department of Faculty of International Relations in Belarusian State University.

Tong and Wan (2008, p. 13).

Zhu (2019a, 2019b, p. 123).

Xu (2005, p. 56).

Tian and Chen (2007, pp. 358–359).

However, after the reform of the integration of arrest and prosecution in 2018, the work of approving arrest and prosecution is currently exercised by the same prosecutor, whose advantages and disadvantages will be discussed in detail later.

For detailed improvement suggestions, please refer to Ji (2007, p. 63)).

The research group of Civil Procedure Law of the SPP edited: Report on Civil Procedure Reform, Law Press, 2003 edition, page 332.

For details on how to coordinate the development of these four kinds of procuratorial functions, you may see Xie and Chen (2020, p. 003).

Article 30 of the Organic Law of the People’s Procuratorate of P.R.C stipulates: the people's procuratorates at various levels shall establish a procuratorial committee. The procuratorial committee shall be composed of the General Director, deputy directors and several senior prosecutors, and its members shall be an odd number. This law was revised and adopted at the sixth meeting of the Standing Committee of the 13th National People's Congress of P.R.C on October 26, 2018 and shall enter into force as of January 1, 2019.

Lin (2009, p. 1).

Sun and Zhang (2011, p. 57).

Implementation Opinions of the Supreme People's Procuratorate on Implementing the Opinions of the Central Political and Law Commission on Several Issues Concerning Deepening the Reform of the Judicial System and Working Mechanism––Work Plan for Deepening the Procuratorial Reform for 2009–2012.

In China, one government refers to the State Council, one commission refers to the State Supervision Commission and two judicial organs refer to the Supreme People’s Court and the Supreme People’s Procuratorate.

The Attorney General Zhang Jun, Speech at the 15th National Procuratorial Work Conference, held in Beijing on January 10, 2021.

See the article 2 of Several Opinions on Improving the Judicial Responsibility System of the People's Procuratorate issued by the SPP on September28, 2015.

Article 2 of Measures of the Supreme People's Procuratorate for the Organizations and Operation of the Judicial Handling Cases (for Trial Implementation) stipulates: According to the needs of performing functions, the types of cases and the degree of complexity, the organs of the Supreme People's Procuratorate implements the basic organizational form of a single prosecutor or a case handling team of prosecutors in handling cases. The measures shall be put into trial implementation on October 1, 2017.

Article 3 of the opinions stipulates: we should carry out the responsibility system of prosecutors in handling cases. We will implement the classified management of procurators and the quota control system for procurators. The prosecutors must handle cases at the front line of practice and be responsible for the quality of handling cases for life. A certain number of procurators who hold leading positions in the procuratorates should handle cases. The head of business department shall be a prosecutor.

See Zhang Chaoxia and Zhang Wei (2020, p. 66).

For more detailed information about the specific measures, such as qualifications, the evaluation methods, you may see the implementation plan for the selection of the first batch of post prosecutors in the whole procuratorial organs of Beijing, issued by the People’s Procuratorate of Beijing Municipality, 2016, the document No. is JJF [2016] No. 125.

So, in the reform of the quota control system of procurators, each procuratorate should strictly control the number of posts and keep it below 39% of the special plan for judicial personnel of the central government.

Liu and Quan (2017, p. 68).

In January 2017, the Attorney General Cao Jianming stressed at the National Conference of General Directors that we should comprehensively promote the construction of the national procuratorial big data center and establish “the procuratorial big data resource database.” His speech was “comprehensively promoting the construction of the national procuratorial big data center in 2017,” January 14, 2017.

As to the detailed application of big data, you may see Ji et al. (2017, pp. 13–17).

Wang (2020, pp. 78–79).

As to the application of big data in evaluating performances of the procuratorial personnel, you may see Ji and Lai (2018, pp. 165–174).

The Attorney General Zhang Jun, Speech at the 15th National Procuratorial Work Conference, held in Beijing on January 17, 2019. He pointed out that “A case is better than a dozen documents…. It is extremely irresponsible to circle and sign comments on the review conclusions submitted by the offices and departments, and it will not improve yourself. It is likely to make a mistake in the case and should be held accountable.”

See Zhu (2021, p. 3).

Chen (2019, p. 6).

As to the details of these issues, you may see Zhu (2019b, pp. 318–319).

Liao (2020, p. 102).

Chen (2019, p. 7).

The Attorney General Zhang Jun, Speech at the 15th National Procuratorial Work Conference, held in Beijing on January 10, 2021.

For deep thoughts on these issues, you may see Chen (2019, pp. 9–11).

Limited to the topic discussed in this chapter, it will not be discussed here. As to the rational allocation of the power to approve the arrest, you may see Ji and Yao (2011, pp. 93–97).

Ji and Liu (2006, p. 79).

See Zhang (2018, p. 18).

Professor Chen Ruihua published his paper “Different Opinions on the Called Integration of Approving Arrest and Prosecution (异哉, 所谓 “ 捕诉合一” 者) in the official account of WeChat of China Law Review on May 29, 2018 and expressed different views on the integration of approving arrest and prosecution and pointed out that in any society under the rule of law, the arrest and prosecution must be separated and should be exercised by two special organs in accordance with the law. The reform of the integration of approving arrest and prosecution will be a dangerous choice. Perhaps, the implementation of “the integration of approving arrest and prosecution” has created a historic opportunity for the procuratorial organs to finally give up the power to approve arrest and completely transfer this function to the court.

The data is from “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, 2020.

As to the detailed contents, you may see Ji (2021, p. 003).

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Titel: The Reform of Procuratorial System
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_5