Brief Introduction to the Procuratorial System in China (Understanding China) [1st ed. 2022] 9811686106, 9789811686108

Table of contents :
Preface
Contents
About the Author
Abbreviations
1 Origin and Characteristics of the Procuratorial System in China
1.1 Arguments on the Origin of the Procuratorial System in China
1.1.1 Characteristics of the Yushi Institution
1.2 The Establishment of the Modern Procuratorial System in China
1.2.1 The Stage of New Democratic Revolution
1.2.2 The Establishment and Development of the Procuratorial System in P.R.C. (From 1949 to 1978)
1.2.3 The Recovery and Reconstruction of the System (From 1978 to Present)
1.3 The Characteristics of the Procuratorial System of China
1.3.1 Evolution of the Concept of “Socialist Procuratorial System with Chinese Characteristics”
1.3.2 The Independent Constitutional Status
1.3.3 The State Organ of Legal Supervision
1.3.4 Exercising the Procuratorial Powers Independently in Accordance
1.4 How to Improve the Procuratorial System with Chinese Characteristics
1.4.1 Strengthening the Party’s Leadership Over Political and Legal Work
1.4.2 Strengthening Legal Supervision and Ensuring Judicial Justice
1.4.3 Deepening the Procuratorial Reform Continuously
1.4.4 Building a High-Quality Procuratorial Team with Both Integrity and Ability
1.5 Conclusion
References
2 On the Organizations of the Procuratorial Organs in China
2.1 The External Organization System of the POC
2.1.1 The Supreme People’s Procuratorate
2.1.2 The Provincial Level
2.1.3 The Prefecture Level
2.1.4 The County Level
2.1.5 The Special People’s Procuratorate
2.2 The Internal Institutions of the POC
2.2.1 Necessary Internal Departments of the Procuratorial Organs
2.2.2 Great Values of Changing the Current Internal Institutions
2.2.3 The Requirements of the Reform for Internal Institutions
2.2.4 Principles of Establishing the Internal Institutions
2.3 Internal Structure of the SPP
2.3.1 The Business Departments
2.3.2 The Political Department and General Office
2.3.3 The Comprehensive Departments
2.4 The Aims of the Business Departments
2.4.1 The Aims of the Criminal Procuratorial Departments
2.4.2 The Aims of the Administrative Procuratorial Departments
2.4.3 The Aims of the Civil Procuratorial Departments
2.4.4 The Aims of the Public Interest Litigation Departments
References
3 The Functions and Powers of the Procuratorial Organs in China
3.1 The Power of Procedural Supervision
3.1.1 The Power of Supervision on Criminal Proceedings
3.1.2 The Power of Supervision on Civil and Administrative Litigations
3.1.3 The Power to Initiate the Public Interest Litigation
3.2 The Power of Public Prosecution
3.2.1 The Basic Principles of Public Prosecution
3.2.2 The Scope of Public Prosecution
3.2.3 The Conditions of Pubic Prosecution
3.2.4 The Contents of Public Prosecution
3.2.5 The Discretion of Prosecution
3.3 The Power of Approving Arrest or Deciding Arrest
3.3.1 The Functions of Arrest
3.3.2 The Rationality for the Procuratorial Organ to Exercise the Power of Approving Arrest in China
3.3.3 Main Problems Existing in the Work of Approving Arrest
3.4 The Power of Investigation for Duty Crime
3.4.1 Historical Evolution
3.4.2 Detailed Contents
3.4.3 How to Connect the Three Kinds of Investigation Powers Organically
3.5 Nature, Independence and Allocation of the Procuratorial Power
3.5.1 The Nature of the Procuratorial Power
3.5.2 Independence of the Prosecutors
3.5.3 Reasonable Allocation of the Procuratorial Power
3.6 Conclusion
References
4 The Prosecutor’s System
4.1 Qualifications and Selection of Prosecutors
4.1.1 General Introduction
4.1.2 Qualifications of the Prosecutors in China
4.1.3 Selection of Prosecutors
4.1.4 Procedure for the Appointment and Removal of Prosecutors
4.1.5 Characteristics and Improvement Measures of the Selection System in China
4.2 The Hierarchy of Prosecutors in China
4.2.1 Present Status of the Hierarchy
4.2.2 Characteristics of the Hierarchy of Chinese Prosecutors
4.2.3 Analysis on Hierarchy of Prosecutors
4.3 Training System of Prosecutors
4.3.1 Current Situation of the Training System of Prosecutors
4.3.2 Training Institutions and Main Objectives
4.3.3 Training Contents
4.3.4 Training Methods
4.3.5 Training Situations of Prosecutors in Other Jurisdictions
4.3.6 Perfection for the Training System of Prosecutors in China
4.4 Prosecutor’s Professional Safeguard System
4.4.1 The System Background of the Professional Safeguard of the Prosecutor
4.4.2 Current Status of Professional Safeguard for Prosecutors in China
4.4.3 Improvement Suggestions from a Comparative Perspective
References
5 The Reform of Procuratorial System
5.1 The Reform of Prosecutorial Systems in Other Countries
5.1.1 Background
5.1.2 The Expansion of Prosecutorial Power
5.1.3 Limitation and Weakening of the Prosecutorial Power
5.2 The Reform of Procuratorial System in China
5.2.1 Guiding Ideology and Practical Significance of Procuratorial Reform
5.2.2 The Principles and Goals of Reform
5.2.3 Key and Difficult Points of the Procuratorial Reform in China
5.2.4 The Path and Way of Procuratorial Reform
5.3 The Specific Measures of the Reform of Procuratorial System in China
5.3.1 The Reform of the Judicial Accountability System
5.3.2 The Reform of Quota Control for Prosecutors
5.3.3 The Reform of Lenient System of Accepting Confessions and Punishment in Criminal Cases
5.3.4 The Reform of the Integration of Approving Arrest and Prosecution
5.4 Conclusion
References
Appendix The Author’s Publications and Research Projects Related to the Topics of This Book
Part 1: On the Discussion of the Prosecution Service in Other Countries
Part 2: On the Discussion of the Procuratorial System in China
Part 3: Research Projects Presided by the Author or as An Important Research Member
Bibliography

Citation preview

Understanding China

Meijun Ji

Brief Introduction to the Procuratorial System in China

Understanding China

The series will provide you with in-depth information on China’s social, cultural and economic aspects. It covers a broad variety of topics, from economics and history to law, philosophy, cultural geography and regional politics, and offers a wealth of materials for researchers, doctoral students, and experienced practitioners.

More information about this series at https://link.springer.com/bookseries/11772

Meijun Ji

Brief Introduction to the Procuratorial System in China

Meijun Ji The Institute of Procuratorial Theory of the Supreme People’s Procuratorate of China Beijing, China

ISSN 2196-3134 ISSN 2196-3142 (electronic) Understanding China ISBN 978-981-16-8610-8 ISBN 978-981-16-8611-5 (eBook) https://doi.org/10.1007/978-981-16-8611-5 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

To my lovely daughter, Zhang Zhenyi

Preface

“You may write a small book about the procuratorial system of China in English. Actually, you have some unique advantages in this field, even if it is only 100,000 words.” This is what Prof. He Haibo of the Law School of Tsinghua University suggested to me during a chat a few years ago. I have to say it was a really good suggestion, but not easy to put it into practice just as some provisions in the statute law are wise laws but not effectively implemented in practice. More than five years have passed and in these years I have been very busy in doing various research projects and other trivial things, even busier year by year, however, I hadn’t squeezed out enough time to write this small book. At the end of 2019, I finally decided to start writing this small book. At that time, it became a godsent opportunity. Due to the outbreak of the COVID-19 pandemic before the Spring Festival in 2020, the first thing to do was to work from home. Suddenly, I had relatively ample time to write this book, which reminds me of a common Chinese proverb just like an English saying: whatever will be, will be. In 1997, when I graduated from the Law School of Peking University and came to work in the Institute of Procuratorial Theory of the Supreme People’s Procuratorate of China, the director of the Institute at that time arranged for me to study the system of prosecution service in Australia. Since then, for more than 20 years, I have been taking it as my responsibility to study the prosecutorial systems in different jurisdictions in the world. In the process of carrying out such research, I have gradually found out that prosecutorial systems in the world are very rich and colorful, and like two peas, no two systems in different countries are the same. In fact, prosecutorial systems are very different, especially with respect to professional safeguards for prosecutors. To my surprise, it is not in countries with developed economy and relatively complete legal system that the level of professional safeguard for prosecutors is higher and the material treatment is richer. At the beginning of the 21st century, Chinese legal scholars had heated discussions on many issues, such as the positioning of the procuratorial system in China, the nature and object of legal supervision, the relationship between the power of legal supervision and the procuratorial

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power, and so on. These issues are still controversial today. But in the upsurge of discussing these issues, I also have a deeper understanding of the uniqueness of the procuratorial system in China. The procuratorial system is an important part of the judicial system and an inevitable product of the improvement and development of the judicial system. Throughout history, people have come to realize that the concentration of power is the main source of corruption—that is, “absolute power will inevitably lead to absolute corruption”—and recognized that the decomposition and balance of powers has become the most effective means to curb corruption. From the historical development track, the power of judgment occupies the core position in judicial system, and the direct reason for the separation of the investigation power and the prosecution power is to improve the fairness and efficiency of criminal justice. At the same time, independent and well-trained prosecutors check the investigation work submitted by the police, which is also conducive to improving the public’s trust in the judicial organs. Therefore, the separation of prosecution power and investigation power is an inevitable trend of the development of judicial power. The origin and development of the procuratorial system in China is full of historical twists and complexities. As early as the Qin Dynasty, after the unification of the six states, the system of “Yushi” with exercising the supervisory function was established to supervise internal and external officials and promote the implementation of national laws and regulations. It had the essence of the legal supervision function of China’s current procuratorial system. But to interpret the procuratorial system with the power of prosecution as its core in a modern sense, the procuratorial system in China can be said to be the result of learning from and transplanting the procuratorial system of the Soviet Union and other European countries. Therefore, since its birth, the procuratorial system in China has been deeply branded with reference, transplantation, and integration. In more than 100 years of change and evolution, comparative research has always played an important role in improving and developing the procuratorial system in China, especially in the mid-20th century and after its restoration and reconstruction in 1978. These formed two climaxes of translation and study of procuratorial systems in other jurisdictions. The former took the introduction of the procuratorial system of the Soviet Union as the mainstream, while the latter presented a flourishing scene of various species of flowers rather than a single one. Especially in recent years, with the widespread attention and increasing prosperity of the procuratorial organs all over China to conduct research on theoretical procuratorial issues, papers and works on procuratorial systems have sprung up just like bamboo shooting up after a spring rain. The writing of this book is to take such a strong east wind to let the procuratorial system with Chinese characteristics go abroad and to the world. The main purpose of this book is to comprehensively and systematically elaborate and discuss the present procuratorial system in China. In order to give readers a comprehensive and clear understanding and grasp of this system, I would like to use a common research style to elaborate, analyze and compare the procuratorial system in China with that of other jurisdictions in several aspects: the history and origin, organization and structure, procuratorial function and powers, prosecutor’s system

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and procuratorial reform. At the same time, in the process of writing, in order to give readers a general understanding and recognition of the procuratorial systems of major countries in the world, when I focus on the procuratorial system in China, I also briefly introduce or compare the relevant contents of the prosecution system in Britain, the United States, Germany, France, Japan, Belarus and other countries. When discussing the current problems and suggestions of the procuratorial system in China, I take the world view as the comparative perspective to explore the common rules and trends in the development of the procuratorial system, so as to reveal the various problems encountered in developing and perfecting the procuratorial system with Chinese Characteristics and their feasible solutions. The procuratorial systems of all countries in the world are established and allocated with corresponding functions and powers according to their own historical traditions, judicial habits and practical needs, and provide an appropriate professional safeguard for prosecutors. Not only are the powers of prosecutors in different states very different, but the institutional settings of procuratorial organs are also very different. For example, in Italy the procuratorial organ is located in the court, and its organizational system is completely parallel to that of the courts. In Britain, the Crown Prosecution Service (CPS) was not established until the mid-1980s and operates across England and Wales with 14 regional teams prosecuting cases locally. Each of these 14 CPS offices is headed by a Chief Crown Prosecutor and works closely with local police forces and other criminal justice partners. In the United States, because of federalism, the functions, institutions and scale of its prosecution services are more diverse and complex. Therefore, there is no unified model of procuratorial organs in the world. Relatively speaking, the functions and powers of procuratorial organs in Civil Law countries are much greater than those in Common Law countries with public prosecution as the main function. But for each country, which model or even how many function and power are appropriate for the procuratorial organ naturally depends on a country’s specific national conditions and judicial tradition. As well, the design of procuratorial organs from country to country also follows the law of the development of judicial power and meet current needs of the development of the times. The procuratorial system in China is advantageous to the political system and economic development of China, which is confirmed by its special role in the “two wonders” of rapid economic development and long-term social stability in China’s social development. I have been working in the Institute of Procuratorial Theory of the SPP for more than 20 years and have been studying various aspects of the procuratorial systems at home and abroad. My published works include a monograph of Comparative Study on the Prosecution Service Both in China and Australia, more than 90 long and short papers and articles related with the topic of procuratorial system at home and abroad, translation of a novel of Connection in Budapest by Dr. Henry Lee, the Procuratorial Yearbook of the Supreme People’s Procuratorate, and the Annual Report of the Supreme People’s Court for several years. I have also served as a simultaneous interpreter at international conferences, seminars, academic lectures and training classes from time to time. Based on these accumulated experiences and knowledge, it should be easy for me to write such a small book. However, I have

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encountered some unexpected difficulties and challenges in the writing process, such as identifying what kind of issues of the procuratorial system in China will be of interest to foreign readers, how to vividly explain its various characteristics, how to express some words with Chinese features into English that foreign readers can understand well, and so on. Fortunately, in addition to my tutor Prof. He Jiahong’s careful guidance, as always, and the warm support of my leaders and colleagues over the years, I also got lots of kind help of many foreign professors and friends. They put forward many good suggestions for revision of the first draft of this book and provided a lot of relevant materials and original texts of their countries, such as Jeannette Rucker, a senior prosecutor from the Bronx District Attorney Office in New York; James Moliterno, a professor from Washington and Lee University in Virginia; Dr. Thomas Stutsman, an attorney in the United States; Frederick Woods, clinical assistant professor from Law School of the Catholic University of America Columbus; Dr. Nadzeya V. Shakel, a lecturer at the International Law Department of Faculty of International Relations in Belarusian State University; Dr. Saciko Paul, ex-head of the division of the Scientific Center of the Prosecutor General’s Office of the Republic of Belarus; Chen Jianfu, a professor of Law School at Melbourne University; Richard Lightfoot, a senior expert witness of engineering from Australia; Dr. Zhou Zunyou, a professor of law at the Law School of South-Central University for Nationalities of China and a senior researcher and head of China Section of the Max Planck Institute for Foreign and International Criminal Law for many years.With their friendly and enthusiastic help, I can finish my book successfully. My sincere thanks for all of you! This book can be published in Springer smoothly, I am thankful to Springer publication team particularly the rights manager Parick Chen, editor Lydia Wang and Sivananth S. Siva Chandran for their recommendation, enthusiasm and hard work. Finally, let me thank my daughter Zhang Zhenyi, husband Zhang Guowei and caring family members who unconditionally support me to write a book on Brief Introduction to the Procuratorial System in China. At present, China is in an important period of the primary stage of socialism. It has entered a decisive stage to build a well-off society in an all-round way. Reform in China has stepped into a crucial period and a deep-water area while the international situation is complex and subject to change. Both the CPC and the country are facing the unprecedented tasks of reform, development and stability as well as unprecedented contradictions, risks and challenges. The two “unprecedented” conditions constitute a very prominent phased feature of contemporary China. Under the conditions of reform and opening up and socialist market economy, the key to deal with and solve these two “unprecedented” conditions lies in accelerating the construction of the rule of law. Although the procuratorial systems of all countries in the world are colorful due to different historical periods, social environments, traditional foundations, cultural backgrounds and other factors, the procuratorial systems also have many commonalities, especially under the background of the current judicial system reform movement of all countries and exploring the general rules of judicial reform and the common trend of procuratorial reform. An in-depth study of the unique

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procuratorial system in China and its development direction may have an important reference value and enlightening significance for other jurisdictions to reform and improve their procuratorial systems. Beijing, China October 2021

Meijun Ji

Contents

1 Origin and Characteristics of the Procuratorial System in China . . . 1.1 Arguments on the Origin of the Procuratorial System in China . . . . 1.1.1 Characteristics of the Yushi Institution . . . . . . . . . . . . . . . . . . 1.2 The Establishment of the Modern Procuratorial System in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.1 The Stage of New Democratic Revolution . . . . . . . . . . . . . . . 1.2.2 The Establishment and Development of the Procuratorial System in P.R.C. (From 1949 to 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.3 The Recovery and Reconstruction of the System (From 1978 to Present) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 The Characteristics of the Procuratorial System of China . . . . . . . . . 1.3.1 Evolution of the Concept of “Socialist Procuratorial System with Chinese Characteristics” . . . . . . . . . . . . . . . . . . . 1.3.2 The Independent Constitutional Status . . . . . . . . . . . . . . . . . . 1.3.3 The State Organ of Legal Supervision . . . . . . . . . . . . . . . . . . . 1.3.4 Exercising the Procuratorial Powers Independently in Accordance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 How to Improve the Procuratorial System with Chinese Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.1 Strengthening the Party’s Leadership Over Political and Legal Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.2 Strengthening Legal Supervision and Ensuring Judicial Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.3 Deepening the Procuratorial Reform Continuously . . . . . . . . 1.4.4 Building a High-Quality Procuratorial Team with Both Integrity and Ability . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 2 4 5

6 7 8 9 11 12 15 18 19 21 23 34 35 36

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2 On the Organizations of the Procuratorial Organs in China . . . . . . . . 2.1 The External Organization System of the POC . . . . . . . . . . . . . . . . . . 2.1.1 The Supreme People’s Procuratorate . . . . . . . . . . . . . . . . . . . . 2.1.2 The Provincial Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.3 The Prefecture Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.4 The County Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.5 The Special People’s Procuratorate . . . . . . . . . . . . . . . . . . . . . 2.2 The Internal Institutions of the POC . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 Necessary Internal Departments of the Procuratorial Organs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Great Values of Changing the Current Internal Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 The Requirements of the Reform for Internal Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.4 Principles of Establishing the Internal Institutions . . . . . . . . . 2.3 Internal Structure of the SPP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 The Business Departments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 The Political Department and General Office . . . . . . . . . . . . . 2.3.3 The Comprehensive Departments . . . . . . . . . . . . . . . . . . . . . . . 2.4 The Aims of the Business Departments . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 The Aims of the Criminal Procuratorial Departments . . . . . . 2.4.2 The Aims of the Administrative Procuratorial Departments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 The Aims of the Civil Procuratorial Departments . . . . . . . . . 2.4.4 The Aims of the Public Interest Litigation Departments . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Functions and Powers of the Procuratorial Organs in China . . . 3.1 The Power of Procedural Supervision . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1 The Power of Supervision on Criminal Proceedings . . . . . . . 3.1.2 The Power of Supervision on Civil and Administrative Litigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.3 The Power to Initiate the Public Interest Litigation . . . . . . . . 3.2 The Power of Public Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 The Basic Principles of Public Prosecution . . . . . . . . . . . . . . 3.2.2 The Scope of Public Prosecution . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 The Conditions of Pubic Prosecution . . . . . . . . . . . . . . . . . . . . 3.2.4 The Contents of Public Prosecution . . . . . . . . . . . . . . . . . . . . . 3.2.5 The Discretion of Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 The Power of Approving Arrest or Deciding Arrest . . . . . . . . . . . . . . 3.3.1 The Functions of Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 The Rationality for the Procuratorial Organ to Exercise the Power of Approving Arrest in China . . . . . . . 3.3.3 Main Problems Existing in the Work of Approving Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contents

3.4 The Power of Investigation for Duty Crime . . . . . . . . . . . . . . . . . . . . . 3.4.1 Historical Evolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 Detailed Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.3 How to Connect the Three Kinds of Investigation Powers Organically . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Nature, Independence and Allocation of the Procuratorial Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.1 The Nature of the Procuratorial Power . . . . . . . . . . . . . . . . . . 3.5.2 Independence of the Prosecutors . . . . . . . . . . . . . . . . . . . . . . . 3.5.3 Reasonable Allocation of the Procuratorial Power . . . . . . . . 3.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Prosecutor’s System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Qualifications and Selection of Prosecutors . . . . . . . . . . . . . . . . . . . . . 4.1.1 General Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Qualifications of the Prosecutors in China . . . . . . . . . . . . . . . 4.1.3 Selection of Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.4 Procedure for the Appointment and Removal of Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.5 Characteristics and Improvement Measures of the Selection System in China . . . . . . . . . . . . . . . . . . . . . . . 4.2 The Hierarchy of Prosecutors in China . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 Present Status of the Hierarchy . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Characteristics of the Hierarchy of Chinese Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3 Analysis on Hierarchy of Prosecutors . . . . . . . . . . . . . . . . . . . 4.3 Training System of Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Current Situation of the Training System of Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Training Institutions and Main Objectives . . . . . . . . . . . . . . . 4.3.3 Training Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4 Training Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.5 Training Situations of Prosecutors in Other Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.6 Perfection for the Training System of Prosecutors in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Prosecutor’s Professional Safeguard System . . . . . . . . . . . . . . . . . . . . 4.4.1 The System Background of the Professional Safeguard of the Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 Current Status of Professional Safeguard for Prosecutors in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.3 Improvement Suggestions from a Comparative Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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114 114 116 122 123 123 126 127 137 139 141 141 142 143 146 158 161 169 169 170 172 173 174 178 181 183 184 190 195 197 198 201 205

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5 The Reform of Procuratorial System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 The Reform of Prosecutorial Systems in Other Countries . . . . . . . . . 5.1.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 The Expansion of Prosecutorial Power . . . . . . . . . . . . . . . . . . 5.1.3 Limitation and Weakening of the Prosecutorial Power . . . . . 5.2 The Reform of Procuratorial System in China . . . . . . . . . . . . . . . . . . 5.2.1 Guiding Ideology and Practical Significance of Procuratorial Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 The Principles and Goals of Reform . . . . . . . . . . . . . . . . . . . . 5.2.3 Key and Difficult Points of the Procuratorial Reform in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4 The Path and Way of Procuratorial Reform . . . . . . . . . . . . . . 5.3 The Specific Measures of the Reform of Procuratorial System in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 The Reform of the Judicial Accountability System . . . . . . . . 5.3.2 The Reform of Quota Control for Prosecutors . . . . . . . . . . . . 5.3.3 The Reform of Lenient System of Accepting Confessions and Punishment in Criminal Cases . . . . . . . . . . 5.3.4 The Reform of the Integration of Approving Arrest and Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

207 207 208 209 213 215 216 218 230 242 249 249 253 260 264 273 274

Appendix: The Author’s Publications and Research Projects Related to the Topics of This Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285

About the Author

Dr. Meijun Ji is a professor at the Institute of Procuratorial Theory of the Supreme People’s Procuratorate of P.R.C. In 1989, she graduated from the English Department of Hangzhou University. She then became an English lecturer in the Department of English Literature and Culture at Taizhou Normal School from 1989 to 1994. She obtained a master’s degree in law from the Law School of Peking University and a doctor’s degree in evidence law from the Law School of Renmin University of China. During more than 20 years of work in the Institute, she served as a visiting scholar at La Trobe University School of Law in Melbourne from 2004 to 2005 and 2010 to 2011, the US-Asia Law Institute at New York University School of Law from 2013 to 2014, and the Max Planck Institute for Foreign and International Criminal Law in 2018. In her routine work, besides carrying out research work, Dr. Ji serves as an interpreter for international conferences, seminars and lectures from time to time. Illustrative examples include serving as an interpreter and organizer for the International Association of Prosecutors 4th Annual Conference and General Meeting held in Beijing in September, 1999; serving as an interpreter for the Training of the 4th Component of Judges and Prosecutors of EU-CHINA Legal and Judicial Co-operation Programme in 2002, during which she visited UK, Belgium, Luxembourg, France, Denmark, Sweden, Germany and other European countries; serving as a simultaneous interpreter for the Second Seminar of the International Association Anti-Corruption Authorities held in Chongqing in 2008; serving as a simultaneous interpreter for the International Seminar on the Prevention of Wrongful Convictions held in Changchun city, Jilin Province in 2012; serving as a simultaneous interpreter for the International Training Programme on Interrogation Techniques Held in Wuhan City, Hubei Province, a Cooperation Between US-Asia Law Institute at New York University and the Institute of Procuratorial Theory of the SPP in 2013, and so on. Her research fields are jurisprudence of criminal law, the system of criminal procedure and the system of prosecution service. Up to now, besides having published 127 research papers and articles both in China and abroad, 18 essays and translations of English materials and laws, such as Police and Criminal Evidence 1984 (Britain), xvii

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About the Author

Evidence Act 1995 (Australia), she is also the co-author of 16 books, 2 law monographs and 2 essay books of “Beside the Brook” “A Girl like a Flower” as well as a novel as a translator of the Connection of Budapest written by Dr. Henry Lee and Labrioba Jerry. In addition, she has taken charge of or participated in 30 research projects variously supported by the SPP, Ford Foundation, the British Embassy and the Danish Institute of Human Rights.

Abbreviations

APL CiPL CPC CPL CPPCC MOJ MPS NPC OLPP POC PPC PRC RCPPP SPC SPP

Administrative Law Civil Procedure Law Communist Party of China Criminal Procedure Law Chinese People’s Political Consultative Conference Ministry of Justice Ministry of Public Security National People’s Congress Organic Law of the People’s Procuratorate Procuratorial Organs of China People’s Procuratorate of China People’s Republic of China Rules of the Criminal Procedure of the People’s Procuratorate Supreme People’s Court Supreme People’s Procuratorate

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Chapter 1

Origin and Characteristics of the Procuratorial System in China

The present procuratorial system in China is an important part of Chinese judicial system.1 Although it is a historical choice made by New China in the process of political power construction and legal system construction, which has a “scientific theoretical foundation, a deep political foundation, a solid practical foundation and a deep cultural foundation,”2 but it is also closely related to the traditional Chinese culture, the judicial system and the judicial ideas. Therefore, it is valuable to carry out deep research on the origin of such system, which will undoubtedly help the people in other countries to understand its various characteristics better and know why such choice is inevitable and correct for China. In this paper, I will discuss the origin of the procuratorial system in China first, then briefly narrate those historical events and frustrations it has experienced in the development process, and finally I will pay more attention to its various characteristics that are much different from the procuratorial systems of other countries in the world.

1.1 Arguments on the Origin of the Procuratorial System in China As to the origin of the Chinese procuratorial system, there have been many differences in the legal field in China. Whether there was a procuratorial system in ancient China, as early as in the 1930s and 1940s, Chinese jurists had been controversial for it 1

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. 2 Sun (2004, preface). © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 M. Ji, Brief Introduction to the Procuratorial System in China, Understanding China, https://doi.org/10.1007/978-981-16-8611-5_1

1

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1 Origin and Characteristics of the Procuratorial System in China

more than two decades. The scholars used the different concepts and contents of the procuratorial system as the standard to discuss the origin of the Chinese procuratorial system, so the conclusions were naturally very different. Due to the contents of the procuratorial system in the world are not much similar and a little different, but “a little similar and much different”, some scholars think that the procuratorial system with the basic content of legal supervision existing in ancient China, that is to say, in the broad sense for the procuratorial system, it was first formed in the ancient Chinese “Yushi” (御史) institution.3 This system existed from the Western Zhou Dynasty (1045—770 B.C.) to the Qing Dynasty (清朝),4 which was an important part of the national political and legal system in China.5 This view is from the perspective of the content and cultural origin of the current procuratorial system of China. However, there is some scholar who has different opinion and thinks the prosecutorial system is a foreign concept. China did not have a prosecutorial system in a modern sense before the modern times. The characteristics with no differentiation between the administrative supervision and judicial impeachment as well as integration of prosecution and trials reflected in the “Yushi” system are significantly different from the modern prosecutorial system.6 In my opinion, actually, these two views are not fundamentally different. Taking the modern prosecutorial system with the separation between investigation and prosecution as a reference to “relight” the Yushi institution in ancient China, there will naturally be many differences between them. However, it is improper to deny the rationality of regarding the Yushi institution as the origin of the procuratorial system in China by such difference. Generally speaking, the emergence of any system is the result of interaction and influence of multiple factors, so its origin is not necessarily unique.

1.1.1 Characteristics of the Yushi Institution From the perspective of law culture inheritance, the Yushi institution with its main function by supervising officials to perform their duties properly and justly is very different from the modern prosecutorial system with public prosecution as the main 3

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. 4 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). 5 Wang (2008, p. 15). 6 Sun (2004, p. 5).

1.1 Arguments on the Origin of the Procuratorial System in China

3

function, but there are quite a few commonalities with our current system which has the legal supervision function, so it is not unreasonable to regard the Yushi institution as the origin of it. Of course, if we review a system from different angles, its origins are multifaceted, and it is a gradual process for the people to understand a system deeply. Undoubtedly, we have learned some valuable experiences from the practices of Western countries and the former Soviet Union to set up the functions of the current procuratorial system in China. Therefore, from the main functions of the modern prosecutorial system, the western prosecutorial system and the procuratorial system of Soviet Union are undoubtedly the origins of our current system. The word “origin” refers to the source of things, so to understand the origin of a system in history, which will help the people to understand and identify the current system and to have a more thorough understanding of the rationality and inevitability of the existence of the system. We regard Yushi institution as a local source of the modern procuratorial system in China since it had an internal factor rooted in the traditional Chinese political and legal system, which had always been played the role of comprehensive supervision on various ruling powers in China’s feudal rule of more than 2000 years, and whose role in consolidating the regime cannot be ignored. Such supervision had several characteristics as follows: Firstly, the powers of supervisions were extensive, which adapted to the highly centralized system of ancient China, whose power was continuously strengthened with the strengthening of the emperor’s power and its applicable way was characterized by universality and radioactivity; secondly, the power balance model was under the highly centralized autocracy; thirdly, the supervision was combined with the administrative inspection. These characteristics have many commonalities with the current procuratorial system of China. The functions of inspecting officials, supervising and restricting the power as well as investigating and handling criminal behaviors such as duty crimes are undoubtedly in line with the current procuratorial system of China.7 Therefore, although the establishment of the modern prosecutorial system in the judicial reform in the late Qing Dynasty and the Qing’s prosecutorial system was followed by the Republic of China had no direct relationship with Yushi institution in ancient China, the current procuratorial system in China has lots of similarities in functions, which is an indisputable fact. So, “reviewing the historical development of the Yushi institution in feudal China will help us to understand the characteristics of the procuratorial system in China today.”8 The Yushi institution can be traced back to the ancient system of remonstrant officials and inspecting officials (言官和察官). According to the historical records, there were such officials in the time of Yu and Sun (about 2236 BC–2135 BC, more than 4000 years ago). After Qin Dynasty9 (秦朝), the official of Yu Shi was one of three important high ranking officials for the emperor, which was listed as an important part of the central government. Since then, although the Yushi institution 7

Liu (2007, pp. 115–125) and Sun (2009, pp. 55–56). He and Waltz (1995, p. 109). 9 The Qin dynasty was the first dynasty of Imperial China (from 221 to 206 BC). Founded by Qin Shi Huang (first Emperor). 8

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1 Origin and Characteristics of the Procuratorial System in China

had undergone several changes and developments, its powers had been changed more or less, and the name had been changed several times. However, it had continued until the establishment of the Procuratorate (检察厅) in the judicial reform in the late Qing Dynasty, and the litigation supervision function owned by the official of Yushi was separated.

1.2 The Establishment of the Modern Procuratorial System in China Considering the history of Chinese legal system, it should be noted that during the late Qing Dynasty (1644–1912), an important reform was initiated. In 1906, the ( ), or emperor Guangxu10 issued Dali Court Preparation Law 《大理院审判编制法》 Judicature act, which stipulated that the new trial institution adopted a four-level with three-trial system. The procuratorial bureau was attached to the trial halls at all levels. The procuratorate had one procuratorial director with several prosecutors, who were responsible for public prosecution and supervision of criminal cases as well as monitoring the decision’s execution. This symbolized the birth of the modern prosecutorial system in China. However, the judicial system established by the judicial reform in the late Qing Dynasty only stayed at the level of the Code and was ended up with the demise of the Qing government. Though it was not really implemented, its own value as the judicial system couldn’t be denied. From the perspective of value, it denies the value of the legal traditional system that had been inherited for thousands of years in China, which combined the judicature and the administration together and didn’t separate the civil cases and the criminal cases as well as put the trial and prosecution together. On the contrary, it affirmed the progressive significance of the modern western judicial system and judicial principles and it was the first attempt to introduce them into the society of China. Although such attempt wasn’t completely successful, and it could not even be said that there was much success, its tendency to conform to the trend of the times was obvious. And that’s why after the Qing Dynasty was overthrown, many elements of this judicial reform still survived in the later society—The judicial system and procuratorial system of the Beiyang Warlord Government,11 the Republic of China12 and nowadays Taiwan were all established, developed and improved on the basis of such judicial reform. So, from the contemporary and modern meaning for the system of prosecution service, there has been more than 100 years in China. 10

Guangxu, or Isingiro of Czytane (1871–1908), the second last Emperor of Qing epoch. He is known for his reform efforts. 11 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. 12 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).

1.2 The Establishment of the Modern Procuratorial System in China

5

As to the present procuratorial system of the People’s Republic of China,13 it was founded on the basis of the Soviet procuratorial system. In November, 1931, the Soviet procuratorial system emerged with the first Soviet Congress and the establishment of the Soviet Republic of China.14 The basic function of the Soviet procuratorate was to prosecute crimes and judicial supervision. The Soviet government saw the problems that existed at that time in this area, and therefore the main responsibility for this area was assigned to the Soviet Ministry of workers and peasants. So, since the Soviet procuratorial system came into being with the foundation of the Provisional Central People’s government in 1931, till 2021, the people’s procuratorial system of China has the course of 90 years of vicissitudes, whose history and development can be divided into three stages.

1.2.1 The Stage of New Democratic Revolution In this stage, the people’s procuratorial system developed gradually with the foundation and development of the people’s revolutionary regime, which is just as mentioned above. The Soviet Republic of China enacted the Temporary Ordinance of Organization and Judgment in 1932 and the Central Soviet Organic Act in 1934, which stipulated the configuration of procurators in the judging agencies at all levels. At that time, the procurators performed the functions of pre-trial of criminal cases, public prosecutions and appearance in the judging agency to support the prosecution. However, due to the limitations of the war environment and the rudiment and confusion of the political and legal system, the implementation of the statutory functions of the procuratorial organs was also very limited. In addition, it copied the Soviet Workers and Peasants Procuratorate to establish the Soviet Ministry of Workers and Peasants with four levels which was responsible for supervising the implementations of law.15 During the Anti-Japanese War, in order to establish the anti-Japanese national united front and realize the cooperation between the Kuomintang and the Communist Party, the democratic regime of the workers and peasants in the various revolutionary base areas were transformed into anti-Japanese democratic regimes, and the organizational system and name of the people’s judiciary were adjusted accordingly. The function of the procuratorate in the anti-Japanese base areas was basically judicial 13

The formation of the People’s Republic of China was proclaimed on October 1, 1949 by Mao Zedong. 14 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). 15 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.

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1 Origin and Characteristics of the Procuratorial System in China

supervision. Though the procuratorial functions, to a certain extent, were influenced by the Kuomintang government, the anti-Japanese base areas also developed their own characteristics. For example, in Shandong anti-Japanese base area, besides the procurators were set in the judicial organs at all levels, it also established the procuratorial committee at various levels in order to organize and push the procuratorial work, which was a new development of the people’s procuratorial system in China.16 During the War of Liberation,17 the liberated areas basically followed the procuratorial system of the revolutionary base areas which was effective, but there were also some developments. Due to the influence of the Soviet procuratorial system, the Northeast Liberated Area stipulated that “in all organs and organizations of the Kanto (关东, the northeast of China with three provinces at present) region, whether he is a public servant or an ordinary citizen, the prosecutor should carry out the highest procuratorial power to supervise whether the law is abided by them or not”.18 From such stipulation, the content of the people’s procuratorial system was richened, which was the prelude to walk into the nature of legal supervision. During the time of new democratic revolution, by examining the establishment and development of the procuratorial system in the revolutionary base areas, we will find that, on the one hand, it inherited the attempt to introduce the western prosecutorial system in the late Qing Dynasty, and on the other hand, it also effectively explored the development path of the people’s procuratorial system, which made significant contributions to the protection of the people’s rights and consolidated the revolutionary regime, and also provided valuable experiences for the establishment and development of the people’s procuratorate system after the foundation of the People’s Republic of China.

1.2.2 The Establishment and Development of the Procuratorial System in P.R.C. (From 1949 to 1978) The procuratorial system of the People’s Republic of China was established with the birth of the People’s Republic of China, which is a new type of socialist procuratorial system. It is based on the procuratorial system of the new democratic revolutionary base, while learning experiences from the procuratorial system of the former Soviet Union with creation and innovation in combination with China’ national conditions. On September 27, 1949, the first plenary session of the Chinese People’s 16

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). 18 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. 17

1.2 The Establishment of the Modern Procuratorial System in China

7

Political Consultative Conference passed the “Organic Law of the Central People’s Government”, which clearly stipulated the establishment of a state procuratorial organ. In September 1954, the first session of the First National People’s Congress passed the Constitution and the Organic Law of the People’s Procuratorate, which further provided the establishment of the Supreme People’s Procuratorate, the local people’s procuratorates and the special people’s procuratorate, and clearly stipulated the powers, organizations, activity principles and procedures to exercise the powers and functions of the people’s procuratorates. Accordingly, the people’s procuratorates at all levels have been able to be established, developed and improved gradually throughout the country. However, influenced by the legal nihilism and the extreme leftist trend in the “Cultural Revolution”, the procuratorial organs were canceled for 10 years from the 1967 to 1977.

1.2.3 The Recovery and Reconstruction of the System (From 1978 to Present) Third Plenary Session of the 11th CPC Central Committee held in December, 1978 was the great turning point of far-reaching significance in the history of the CPC and the country and opened a new era of socialist modernization,19 while bringing order to chaos and redressing the false and wrongful decisions, China opened up the great process of reform and began the process of opening up and strengthening the construction of socialist democracy and legal system. With the surge of wave, the procuratorial system in China also began to be recovered and reconstructed. In March 5, 1978, the first meeting of the Fifth National People’s Congress adopted the revised Constitution of the People’s Republic of China, in which Article 43 made the provisions in principle on the nature, functions and leadership of the procuratorate, and decided to re-establish the people’s procuratorates at all levels corresponding to the court system. In July1979, the Organic Law of Procuratorates of the People’s Republic of China was revised and enacted by the Second Meeting of the Fifth National People’s Congress. At the same time, it also enacted six important laws, such as the Criminal Law and the Criminal Procedure Law, so the development of the procuratorial system in China began to enter a new era. The Organic Law of Procuratorates first clearly stipulated in Article 1: “the people’s procuratorates are the organs of legal supervision in China” and canceled the function of general supervision of the people’s procuratorates, which had continued until then. It also adjusted and supplemented the procuratorial organs’ authority and internal organization’s settings accordingly. The paragraph 2, Article 3 of the Constitution in 1982 stipulated: “The state administrative organs, the judicial organs, and the procuratorial organs are all originated by the National People’s Congress, responsible for it and supervised by it”, which further clarified the status of the procuratorial organs 19

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

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1 Origin and Characteristics of the Procuratorial System in China

of China in the state institutions and their relationship with the power organs. Since then, the procuratorial system of China has opened a process of recovery and reconstruction, and the procuratorial organs have embarked on the path of legalization and regularization. So, since the Provisional Central People’s government was founded in November, 1931 and the people’s prosecution service came into being, by 2021, the people’s procuratorial cause has gone throught a glorious course of 90 years. During these years of development, especially since the Third Plenary Session of the 11th CPC Central Committee, the procuratorial system of China has developed steadily thought its functions were adjusted a little in 2018,20 which has become an important part of the socialist judicial system with Chinese characteristics.

1.3 The Characteristics of the Procuratorial System of China The procuratorial system belongs to the category of national political system, which is an important achievement of the civilization of rule of law in human society and an important part of the national governance structure and governance system. The procuratorial system is a historical and policy-oriented institutional form. Its emergence and development have volatile and adaptive characteristics, which are processes of system improvement, transplantation and integration to varying degrees of foreign experiences. The selection and construction of prosecution systems in each country are rarely self-generating; however, they often embark on the path of self-development based on reference, comparison and reflection. Therefore, from a worldwide perspective, “as part of the judicial system, the prosecution system has unique and diverse characteristics, which are caused by the social and human factors such as political cultures, historical traditions, national characteristics and so on. It is almost impossible to find a complete and consistent prosecution system around the world. The prosecution systems of different countries are showing a colorful, complex and diverse appearance.”21 That is to say, not only the powers and functions of the prosecutors in different countries are very different, but also the institutional setup of the procuratorial organs is very different. For example, the Italian procuratorial organs are located in the judicial organs, whose organizational system corresponds completely with that of the judicial organs completely; the crown prosecution service for England and Wales, established only after the mid-1980s, includes the national prosecution services, which are independent bodies divided by region. In the United States, due to the federalism, the functions, scales and organizations

20

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

1.3 The Characteristics of the Procuratorial System of China

9

of the prosecution service are even more diverse and extremely complex. Therefore, there is no uniform model of the prosecutorial organs in the world. As mentioned above, the procuratorial system of New China is no exception. It has also been developing on the basis of its own national conditions and learning valuable experiences from other procuratorial systems in foreign countries. However, in the process of self-development, it has formed its own characteristics. The characteristics of China’s procuratorial system are closely related to the socialist system with Chinese characteristics. So, how did the concepts of socialism with Chinese characteristics and the procuratorial system with Chinese characteristics evolve?

1.3.1 Evolution of the Concept of “Socialist Procuratorial System with Chinese Characteristics” The evolution of concept is closely related to social development. The phrases of “socialism with Chinese characteristics” and “procuratorial system” are connected to express the procuratorial system in the contemporary China since the reform and opening up, which gradually appears after the restoration and reconstruction of the procuratorial organ in China. In synchronization with the development of theory of socialism with Chinese characteristics, the term has also experienced a process of development and change.22 From 1980 to 1990s, the expression of “socialism having Chinese characteristics” (有中国特色社会主义) was used. Accordingly, the corresponding expression of the procuratorial system was “the procuratorial system having Chinese characteristics” and “building the procuratorial system which has Chinese characteristics.” This statement first appeared in the work report of the SPP, which expressed as: “the reform of the procuratorial system is an integral part of the reform of political system. The present procuratorial system has Chinese characteristics and the basic aspects are good.”23 After entering the twenty-first century, the CPC began to use “socialism with Chinese characteristics” (中国特色社会主义, the term is without “having”) in its documents. For example, in November 2002, the 16th National Congress of the CPC was held, whose report with the title of “building a well-off society in an all-round way and creating a new situation in the cause of socialism with Chinese characteristics”. Since then, the term of socialism with Chinese characteristics has become a common one. Under such background, the expression of “socialist procuratorial system with Chinese characteristics” also began to appear. On March 11, 2003, the Attorney General of the SPP Han Zhubin stressed that “the procuratorial organs of the whole country should… strive to create a new situation in the cause of socialist

22

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.

23

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1 Origin and Characteristics of the Procuratorial System in China

procuratorial system with Chinese characteristics and make new and greater contributions to the construction of a well-off society in an all-round way!” while delivering the “Work Report of the SPP” at the first session of the 10th National People’s Congress. It is worth mentioning that the 12th National Conference on Procuratorial Work was held in June 2006, the Attorney General Jia Chunwang made a large discussion on “adhering to and improving the socialist procuratorial system with Chinese characteristics” in his report. He pointed out that “the procuratorial system in contemporary China is the product of the combination of the basic principles of Marxism Leninism and China’s specific reality. It has fully implemented the theory of the people’s democratic dictatorship, the theory of the people’s Congress system and the theory of democratic centralism, which contains our party’s basic views on the socialist procuratorial system and is an important part of China’s political system by closely relating with China’s state system and regime. The Constitution establishes the procuratorial organ as the national legal supervision organ with specializing in the legal supervision function so as to maintain the unified and correct implementation of national laws and to ensure the correct operation of state power on the track of the rule of law.”24 Subsequently, during the 11th and 12th National People’s congresses (March, 2008–March, 2018), the Attorney General Cao Jianming also elaborated on the theme of “adhering to and improving the socialist procuratorial system with Chinese characteristics for many times”. In 2018, the new Attorney General, after taking his office, at the Teleconference of National Procuratorial Organs on Studying and Implementing the Spirit of the NPC and CPPCC held on March 27, 2018, in a new era, under the background that the procuratorial work is facing a new situation with the transformation of major social contradictions, the reform of the national supervision system and the transferring of anti-corruption official and posts, Zhang Jun stressed: “seek development, unswervingly explore, innovate and practice the procuratorial road of socialism with Chinese characteristics in a new era.” It can be said that “the socialist procuratorial system with Chinese characteristics is a procuratorial theoretical concept formed in the practice of procuratorial work after reform and opening up under the guidance of thought of sinicized Marxism socialism with Chinese characteristics. It is embodied in the realistic combination of scientific logic and practical logic, which has a scientific nature. At the same time, the concept came into being and evolved with the development of the theory of socialism with Chinese characteristics after the reform and opening up, which has a distinct characteristics of the times.”25 Therefore, how to understand the socialist procuratorial 24

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). 25 Min (2019, p. 5).

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system with Chinese characteristics? Generally speaking, it can be understood from two levels: The first level is from the macro-level of China’s political and legal system; the second one is from the micro-level of the procuratorial system itself. The characteristics at the macro-level are the basic principles that the procuratorial system in China and even the political and legal system must always adhere to, and there are more “unchanged” elements. In other words, these characteristics are the traditions and principles of the people’s justice in China and are applicable to the courts, procuratorial organs, public security organs, judicial administration organs and other departments, such as the Party’s absolute leadership over political and legal work, taking the people as the center, serving the overall situation of the Party and state work and the mass line of judicial work. The characteristics of the micro-level, relatively speaking, with the development of the rule of law, are more “variable” factors in some specific systems, mechanisms and functions. This “variability” does not affect the essential attribute of the system. I would like to discuss several main characteristics as follows.

1.3.2 The Independent Constitutional Status In essence, China is a socialist country led by the Communist Party of China, and the CPC’s leadership is the most essential feature of socialism with Chinese characteristics. The fundamental political system of China is the system of people’s congress and state powers are exercised by the people’s congress in a unified way. Under the system of people’s congress, the established state administrative organs, the judicial organs and the procuratorial organs exercise powers respectively, which are originated by the people’s congress, responsible for it and supervised by it. Therefore, in terms of political nature, the people’s procuratorate in China is an important part of the state machine of the people’s democratic dictatorship under the leadership of the Communist Party of China. The procuratorial power comes from and serves the people. The broad nature of the people is the most fundamental political attribute of the people’s procuratorate. The people’s procuratorate is a state organ that parallels with the government, the court under the system of people’s congress, which has independent constitutional status. In such a state power structure, the prosecutorial organ enjoys an independent legal status in the constitutional system as paralleling state organs with the administrative organs and judicial ones. So, in terms of constitutional status, the people’s procuratorate in China is determined as the state’s legal supervision organ and also the judicial organ. It can be said that the setting mode and constitutional orientation of the procuratorial organs in China are determined by China’s national conditions as well as China’s national system and political system. China’s national system determines that we must adhere to the leadership of the CPC and do not implement the two party system or multi-party system to govern in turn; China’s political system determines that the people’s Congress is an organ of state power. It does not implement the “separation of powers” and “bicameral system.”

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1 Origin and Characteristics of the Procuratorial System in China

However, “Any power should be supervised, and the power without supervision will inevitably lead to corruption and autocracy.” After the West countries entered the period of modern capitalism, the supervision and restriction of its state power was basically realized through “multi-party system” and “separation of powers”. Well, “our socialist country under the leadership of the Communist Party does not engage in multi-party rotation in power or the ‘separation of powers’ or ‘bicameral system’, how to realize the supervision and restriction of power? There is a design in the sense of system, that is, to establish a special legal supervision organ—the procuratorial organ, in order to maintain the unified and correct implementation of national laws and ensure the operation of power within the regulation of law, which is the fundamental reason for establishing a procuratorial organ with independent constitutional status in China.”26 This originated from Lenin’s thought of legal supervision and the practice of the Soviet Union. Of course, in addition to this system design, China also has the principle of democratic centralism, multi-party cooperation, the people exercising state power through the People’s Congress, which supervises the state organs to administer in accordance with the law and realize justice impartially and so on. However, the legal supervision of procuratorial organs in China, traditionally called it as the procuratorial supervision, its original intention is to maintain the unified and correct implementation of national laws and play a certain role of supervision and restriction on administrative power and judicial power. Therefore, the legal supervision is the essential characteristic of the procuratorial organs in China.

1.3.3 The State Organ of Legal Supervision The procuratorial organ in China is the state organs of legal supervision, which is clearly stipulated in Article 134 of the Constitution of the P.R.China,27 that is, “the People’s Procuratorate of the People’s Republic of China is the state’s legal supervision organ.” The constitutional orientation of legal supervision organs is the most distinctive feature of the procuratorial system in China. As mentioned above, the legal supervision thought of procuratorial organs comes from Lenin’s legal supervision theory, but it is also closely related to China’s traditional culture and the historical development of procuratorial system in China. However, it should be emphasized that in terms of the procuratorial system, after the exploration in the early days of the founding of the P.R.C, China has always paid special attention to the transformation of the procuratorial system in China and continuously improved our procuratorial system according to China’s national conditions, for example, the procuratorial organs not only carry out legal supervision under the leadership of the Party Central 26

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.

27

1.3 The Characteristics of the Procuratorial System of China

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Committee, but also the procuratorial organs at all levels should accept the leadership of Party committees at the same level; the Constitution and laws have strict provisions on procuratorial power. In the judicial field, it participates in litigation and supervises litigation activities, whose purpose is to make the law be obeyed by uniformly and maintain judicial justice; It protects innocent people and human rights by examining and approving arrests, prosecuting and accusing crimes; It sets up the procuratorial committee to ensure the democratization and scientization of the procuratorial organs’ major decisions. These aspects are very different from the procuratorial system of the former Soviet Union. They are the development and innovation of the procuratorial system in China in the process of adapting to China’s national conditions. In addition, it should be noted that although the procuratorial organ in China is a legal supervision organ, the connotation of legal supervision is different from the original legal supervision of the former Soviet Union. The main feature of Lenin’s thought of legal supervision is that it must include general supervision. The focus of legal supervision of procuratorial organs in China is still in the field of litigation and has expanded from criminal to civil, administrative and public interest litigation, which reflects the more comprehensive, coordinated and full development of the procuratorial supervision. In terms of power restriction, the illegal acts of state functionaries that reach the degree of crime in exercising public power shall be investigated by the procuratorial organ in China in accordance with the law so as to ensure the correct exercise of public power and realize power restriction. Though after the reform of supervisory system in 2018, the investigative power of most duty crimes was transferred to the Supervision Commission, but it still retains the investigation power of 14 crimes committed by the judicial personnel.28 The procuratorial organs in China also have the power of litigation supervision, that is, they can supervise the investigative activities of the public security organs and the trial activities of the courts so as to ensure that they exercise their functions and powers in accordance with the law and realize judicial justice. The specialization of legal supervisions by the procuratorial organs lies in supervising behaviors violating laws in specific fields by special ways, which are empowered by laws and should produce a kind of legal effect. Truly speaking, from the actual role of the procuratorial organ, the procuratorial system of any country has the function of supervision and restriction because the procuratorial organ was separated from the judicial power at the beginning of its emergence, whose purpose is to restrict the police and judges. From a historical point of view, the emergence of the procuratorial system is to meet the needs of realizing judicial justice. If simply considering the investigation of a crime, it is more 28

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.

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1 Origin and Characteristics of the Procuratorial System in China

convenient without a prosecutor. The establishment of an independent prosecution office between the police and judges is to prevent the abuse of power by the police and the arbitrariness of judges. Therefore, the procuratorial systems in Western countries also play a role in supervising and restricting judicial activities; however, it is not necessary for them to design and treat the prosecution office as a special supervisory organ.29 However, the legal supervision power of the procuratorial organs in China is much more extensive than that of many countries in the world. So, some people even directly call China’s procuratorial power as a legal supervision power.30 It is worth noting that the functions of legal supervision of the procuratorial organs in China basically belong to procedural supervision, that is, they mainly start procedures or make procedural decisions in accordance with the law in order to play a supervisory role. The procuratorial organ has no substantive power of administrative punishment or judicial adjudication. The procuratorial power must accept the supervision of the power organ and the ruling of the court, which itself constitutes the supervision and restriction of the procuratorial power. In addition, from the perspective of the national supervision system in China, the legal supervision belongs to an integral part of the national supervision system. The departments with supervision functions not only have the relationship of division of labor and responsibility with mutual cooperation, but also have a certain restrictive relationship. Therefore, in designing the system, the legal supervision of the procuratorial organ itself must be subject to multiple supervision and constraints. From the perspective of the subjects of the procuratorial organs accepting external restriction and supervision, it mainly includes: (1) accepting the Party’s leadership over the procuratorial work; (2) accepting the supervision of the People’s Congress and its Standing Committee; (3) accepting the restriction of the public security organs, the courts and lawyers in the procedural process; (4) accepting the democratic supervision of the CPPCC; (5) accepting the supervision of the masses and public opinion.31 In terms of internal restriction, it refers to the mutual restriction and supervision between the internal departments within a procuratorate and between the superior and the subordinate procuratorial organs. Over the years, the procuratorial organs in China have gradually established an internal supervision and restriction system based on the allocation of functions and through the supervision of cases and the investigation of those accountable persons, such as the department of cases administration, which takes the responsibility of supervision and restriction of other departments dealing with cases. As to the responsibility, the procuratorial organs have overall responsibility for the procuratorate, and within the procuratorates whose system of leadership is that the higher level procuratorate leads the lower level procuratorate.

29

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. 31 As to the detailed supervision of these subjects, see Sun (2016, pp. 20–21). 30

1.3 The Characteristics of the Procuratorial System of China

15

In the procuratorial organs, it is not only the chief director who has overall responsibility for the procuratorate, but also the responsibility system is that the procuratorate’s responsibility system, which means that the director leads the procuratorate combining with the collective leadership of the Procuratorial Committee.32 Between the upper procuratorate and the lower one, the upper one leads the lower one and the Supreme People’s Procuratorate leads the local procuratorates at all levels. The people’s Procuratorate is the national legal supervision organ, the judicial organ to ensure the unified and correct implementation of national laws, an important force to protect national interests and social public interests, and an important part of the national supervision system. It plays an important role in promoting the comprehensive rule of law and building a socialist country under the rule of law. It can be said that legal supervision is the most fundamental characteristic of the procuratorial organs in China, it has been a top priority to strengthen the legal supervision for the procuratorial organs all over the country for many years. However, in a new stage of development, compared with the new needs of the people in democracy, rule of law, fairness, justice, security and environment, the law enforcement and implementation of law are still short boards that need to be supplemented, and the legal supervision function of procuratorial organs is not brought into full play. In order to further improve the ability of legal supervision and strengthen legal supervision, on June15, 2021, the CPC Central Committee issued the Opinions of the CPC Central Committee on Strengthening the Legal Supervision of Procuratorial Organs in a New Era,33 which provides an excellent historical opportunity for the procuratorial organs in China to strengthen legal supervision. At the same time, it has also attracted the great attention of the Party committees and leaders at all levels.

1.3.4 Exercising the Procuratorial Powers Independently in Accordance We maintain the principle of exercising the prosecutorial powers independently in accordance with the law combining with the leadership of the Party. As an independent state organ, the procuratorate should insist on exercising its prosecutorial power in accordance with the law and during such process, it should also insist on the leadership for the procuratorial work by the CPC. On the one hand, under China’s

32

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. 33 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.

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1 Origin and Characteristics of the Procuratorial System in China

national system and political system, adhering to the Party’s leadership over judicial work is the fundamental guarantee for the realization of judicial justice. “To promote judicial justice, we must adhere to the Party’s absolute leadership, which is not only determined by the political attribute of judicial organs and the stipulation of the ‘quality’ of judicial justice, but also the fundamental guarantee of doing judicial work well and the political premise of realizing judicial justice.”34 The 90-year history of the people’s procuratorial development is the history of the CPC leading the procuratorial organs to serve and guarantee the Chinese revolution, construction and reform. On the other hand, it is a necessary way to realize judicial justice by ensuring that the judicial organs exercise their functions and powers independently in accordance with the law. We should ensure that the judicial and procuratorial organs independently exercise judicial and procuratorial powers in accordance with the law. This is the consistent proposition of our party and state, which has been continuously emphasized at the 18th CPC National Congress. The most fundamental duty and mission of the procuratorial organs are to adhere to the people as the center, strengthen the legal supervision, serve the overall situation of the party and the state with the power of the rule of law and safeguard the legitimate rights and interests of the people. To exercise the procuratorial power independently in accordance with the law, we should understand the following issues correctly.

1.3.4.1

Upholding the Party’s Leadership

Due to the complexity of its origin and the uniqueness of historical development, the procuratorial organs in China enjoy unique functions and powers and also have many Chinese characteristics, such as the Party’s absolute leadership over political and legal work, taking the people as the center, serving the overall situation of the work of the Party and the state and the mass line of judicial work. Of course, these are also the characteristics of judicial system in China. As President Xi Jinping stressed: “the leadership of the Party is the fundamental guarantee for the people to be masters of the country and administer the country by rule of law. The people being the masters is the essential feature of socialist democratic politics. Administering the country by rule of law is the basic way of the Party leading the people to govern the country. The ‘three’ are unified in the great practice of our socialistic democratic politics.” “For the procuratorial organs, adhering to the Party’s leadership over the administering the country by rule of law, first of all, we must uphold the absolute leadership of the party, which is the highest principle and the greatest advantage of procuratorial work, and there is no way to shake it at any time under any circumstances.”35

34 35

Tong (2021, p. 12). Zhang (2021, p. 001).

1.3 The Characteristics of the Procuratorial System of China

1.3.4.2

17

Handling Relationships with the Public Security Organs, the Courts and Other Departments Properly

Article 135 of the Constitution of P.R.C and Article 7 of the Criminal Procedure Law stipulate that the relationship between the people’s court, the people’s Procuratorate and the public security organ in criminal proceedings is division of responsibilities, mutual cooperation and mutual restriction. This is a model of relationship between the police and the prosecutor and the relationship between the prosecutor and judge with distinctive Chinese characteristics. Generally speaking, this model is adapted to China’s national conditions and the needs of the construction of the rule of law. So, in handling with criminal cases in accordance with the related laws, the procuratorial organs, the public security organs and the courts shall divide responsibilities, coordinate their efforts and check with each other. The criminal litigation is a traditional field of the procuratorial organ’s function. These relationships are the core of the judicial system and the principle of dividing responsibility and coordinating and checking with each other is a kind of principle of criminal judicial activities, which embodies the special requirement among the procuratorial organs, the public security organs and the courts in the process of exercising concrete judicial functions in China. However, the current mode of police leading investigation in China increasingly shows its shortcomings under the background of trial-centered procedural system reform: It is not only difficult to meet the needs of procuratorial organs to effectively accuse and punish crimes, but also unable to meet the requirements of investigative supervision and protection of human rights.36 Although the mode of integration of prosecution and investigation in foreign countries is not in line with China’s national conditions as a whole, it has some reasonable elements, which can be used for reference to improve the relationship of socialism with Chinese characteristics between the prosecutor and police and strengthen the close cooperation between the police and prosecutors which is conducive to making up for the lack of legal knowledge of the police so as to create a more harmonious and efficient judicial environment for the smooth realization of the purpose of criminal procedure. From the perspective of the relationship between the procuratorial organs and the courts, the leading role of procuratorial organs in the criminal procedure, especially in the leniency system of accepting confession and punishment, is becoming increasingly prominent. We should not only adhere to the central position of judicial organs, but also give full play to the leading role of the procuratorial organs; we should not only standardize judicial behaviors and enhance the openness of communication between the two organizations, but also give full play to the function of guiding cases. At the same time, we should implement a scientific and reasonable work performance appraisal system to avoid various behaviors against judicial justice from the systematic perspective. In addition, in civil, administrative and public interest litigation cases, we should make targeted adjustments in dealing with the relationship between the procuratorial organs and the courts according to the characteristics of different 36

See Liu (2013, p. 147).

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1 Origin and Characteristics of the Procuratorial System in China

litigation procedures, and give full play to the best efficiency of legal supervision of procuratorial organs with the idea of “both winning and all winning”. Finally, in dealing with cases of duty crimes, we should also deal with the relationship with the newly established Supervision Commission well.

1.3.4.3

Handling the Relationship Between Dealing with Cases Independently and Accepting Supervision and Guidance Properly

In procuratorial practice, we should fully promote the prosecutors’s case handling responsibility system with implementing the principle of “who handles the case, who is responsible, who decides who is responsible”, endow the prosecutor with certain decision-making power in handling the case and establish the prosecutor’s relatively independent subject status in handling the case, which is the guarantee condition for realizing judicial justice. After carrying out the reform of judicial accountability system, the prosecutors should be given the power to handle cases independently. At the same time, we should change the mode of examination and approval to the relationship of supervision and guidance, which is a new operation mechanism of procuratorial power to follow the judicial rule and ensure that prosecutors handle cases fairly in accordance with the law. The ultimate purpose for prosecutors to accept supervision in the process of handling cases independently is, of course, to exercise the procuratorial power fairly and objectively and realize judicial justice.

1.4 How to Improve the Procuratorial System with Chinese Characteristics A harmonious society with a high level of management must be a society with a high level of rule of law. Therefore, it can be said that enforcing the rule of law and comprehensively implementing the strategy of governing the country in accordance with the law is the only way to strengthen and innovate social management and move toward a harmonious society. The socialism with Chinese characteristics has entered a new stage of development. The people’s yearning for a better life extends more to democracy, the rule of law, fairness and justice. Judicial work is facing a new development situation and shouldering the important task of a new era. As an organ guarding the law, the procuratorial organ in China has a great political responsibility. How to adhere to, develop and improve the socialist procuratorial system with Chinese characteristics is not only a major challenge for the procuratorial organs in a new era, but also a rare historical opportunity. The procuratorial organs in China should do the following duties: to ensure and promote steady and rapid economic development by faithfully performing their functions and serving the overall situation of the work of the Party and the state; to fully maintain social harmony and stability

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19

and actively participate in strengthening and innovating social management; to hold the idea of people oriented, pay attention to the people’s livelihood and earnestly safeguard the legitimate rights and interests of the people; to seriously investigate and deal with duty crimes and maintain social fairness and justice and so on. In order to successfully achieve these goals, we must give full play to the characteristics of China’s procuratorial system in all aspects. Specifically, we must effectively carry out work in the following aspects.

1.4.1 Strengthening the Party’s Leadership Over Political and Legal Work General Secretary Xi Jinping emphasized that “what kind of judicial system a country should implement after all is determined by the country’s national conditions. To evaluate a country’s judicial system, the key is to see whether it is in line with national conditions and whether it can solve its own practical problems.”37 The advantages of the socialist procuratorial system with Chinese characteristics are mainly reflected in three aspects: First, based on the qualitative differences of social types, the matching procuratorial system is different, and the value orientation of the socialist procuratorial system has advantages; second, the procuratorial system in China not only has the advantage of system supply, but also has the advantage of improving the system implementation ability, which can transform the system function into national efficiency and self-improvement ability of governance; third, the procuratorial system in China has the characteristics of self-innovation and openness, and can always be reformed and improved in response to the new problems of the times and the new needs of the people’s justice.38 The key reason for these advantages is that the procuratorial system in China has clearly adhered to the Party’s leadership over political and legal work since its establishment 90 years ago.39 However, in a new era, fairness and justice are expected and cherished by the people! In facing the people’s greater demand for democracy, rule of law, fairness, justice, security and environment, how can we strengthen the Party’s leadership over political and legal work and give full play to the characteristics of the Party’s leadership for the procuratorial organ? Specifically, it is necessary to firstly solve three issues which are as follows.

37

Xi (2020, p. 46). Gui and Jiang (2021, pp. 36–39). 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. 38

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1.4.1.1

Handling the Relationship Between the Party’s Policies and the State’s Laws

The so-called Party leadership is mainly reflected in political, ideological and organizational leadership. Political leadership is the leadership of political principles, political policies and political lines; ideological leadership is that the Party guides the people to take the socialist road through ideological and political education for the cadres and the masses; organizational leadership is mainly achieved by recommending excellent talents of the Party to serve as leaders of state organs. Among them, political leadership is the foundation, ideological leadership is the soul, and organizational leadership is the guarantee. The Party’s leadership over political and legal work, including procuratorial work, is also realized through these three aspects. The Party not only leads the people to formulate the Constitution and laws, but also leads the people to implement them. The Party itself must also act within the scope of Constitution and laws. Therefore, the Party and the law, the Party’s leadership and the rule of law are highly unified in China. For judicial work, the enforcement of law is to implement the Party’s proposition and will, and handling cases in accordance with the law is to implement the Party’s policies. “To promote fair justice, we should continuously improve political judgment, political understanding and political execution in combination with the actual situation of handling judicial cases, and implement them in the whole process and links in handling judicial cases by integrating the Party’s policies with the state’s national laws.”40 In the process of strengthening the Party’s political leadership, “we must firmly grasp the political nature of the procuratorial organs and adhere to Xi Jinping’s new socialist ideology with Chinese characteristics, arm the procuratorial team, guide the procuratorial practice and consolidate the ideological foundation for the development of procuratorial cause.”41

1.4.1.2

Improving the Ability and Level of Politics and Law Committees at All Levels

As mentioned above, the Party’s leadership over political and legal work is mainly reflected in the leadership at the macro-level of politics, ideology and organization. In addition to the formulation of policies and laws, the most direct way of such leadership is to coordinate and guide the work of the public security organ, the procuratorial organ, the court and the judicial bureau at the same level through the politics and law committees at all levels. However, in reality, since the politics and law committees neither have the power to control and advise the public security organ, the procuratorial organ, the court and the judicial bureau in personnel, financial and material conditions, nor do they have enough legal professionals, when carrying out specific work, the functions specified in the Regulations of the Communist Party of China on Political and Legal Work can 40 41

Tong (2021, p. 13). Zhang (2021, p. 001).

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only obtain relevant information through document reports, whose leadership effect is really unsatisfactory, which has been shown in the education and rectification of the national political and legal team since February, 2021 obviously.42 In the work of education and rectification, one of the duties for the local politics and law committees is to lead, plan and coordinate such work of those political and legal units. However, in practical work, many secretaries of the politics and law committees at the county level cannot compare with the leaders of the public security organ, the procuratorial organ and the judicial bureau in terms of professional knowledge and qualifications. They obviously feel that they are unable to carry out their work. Therefore, in order to strengthen the leadership of the politics and law committees, the first thing to do is to improve their ability and level of leadership, such as employing talents with legal professional background, strengthening training on legal knowledge and doing more field research on the problems existing at local political and legal units. Only in this way can the Party’s organizational leadership over political and legal units be truly realized through the politics and law committees at all levels.

1.4.2 Strengthening Legal Supervision and Ensuring Judicial Justice A harmonious society should be a society where people live in harmony, work in peace and contment with full of social justice. Judicial justice is the institutional garnatee of social justice. Therefore, in the process of implementing the law, how to promote the realization of judicial justice is undoubtedly a fundamental issue for the judicial organs. In a new era, as an organ guarding the law, how to adhere to, develop and improve the socialist procuratorial system with Chinese characteristics is not only a great challenge, but also a rare development opportunity. The procuratorial organs in China should faithfully perform their functions, such as: fully exercising the procuratorial power to serve the overall situation of the work of the Party and the state, and ensuring and promoting steady and rapid economic development; fully maintaining social harmony and stability and actively participating in strengthening and innovating social management; uphold the ideas of people oriented, paying attention to the people’s livelihood, and earnestly safeguarding the legitimate rights and interests of the people; seriously investigating judicial duty crimes and maintaining social fairness and justice and so on. In order to successfully achieve these goals, we must give full play to the characteristics of China’s procuratorial system in all aspects. Specifically, we must effectively carry out the legal supervision in the following aspects. 42

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.

22

1.4.2.1

1 Origin and Characteristics of the Procuratorial System in China

Strengthening Procedural Supervision and Realizing Judicial Justice

In the legal supervision of procuratorial organs, one of the important contents is to supervise whether the public security organs and the courts exercise their functions and powers in accordance with the law. Firstly, we should strengthen the supervision of case filing and investigative activities by focusing on the supervision of those issues, such as failure to file a case, failure to investigate a case, extorting confessions by torture, obtaining evidence by violence, and using criminal means to illegally intervene in civil and economic disputes. Secondly, we should strengthen the judicial supervision by focusing on supervising and correcting errors in the application of law, improper sentencing, long delay without judgment, difficult execution of property and other problems. Thirdly, we should strengthen the supervision of penalty execution by focusing on commutation of sentencing, parole, temporary execution outside the prison, serving a sentencing on paper and the sentencing has not been executed, etc., so as to promote the civilized supervision and safeguard the legitimate rights and interests of detainees in prison.

1.4.2.2

Performing the Duties of Approving Arrests and Prosecuting Crimes in Accordance with the Law

In the criminal procedure, the procuratorial organ is in the link between the preceding and the following, which is at the transitional point of investigation and trial. Although the work of the procuratorial organs in China is composed of “four kinds of procuratorial functions” in a new era, the criminal procuratorial work is still the most important part. So, we should pay equal attention to punishing crimes and protecting human rights. We must severely crack down on serious criminal offenses, safeguard national security and social order, protect the legitimate rights and interests of suspect, defendants and related parties, and protect lawyers’ practice and performance in accordance with the law. In addition, we should also earnestly implement the provisions on evidence in the newly revised Criminal Procedure Law in 2018, enhance the awareness of evidence, collect, review and judge evidence comprehensively and objectively and exclude illegally obtained evidence in accordance with the law. Anyway, we should make our best efforts to strike an appropriate balance between punishing crimes and protecting human rights.

1.4.2.3

Standardizing Judicial Behavior to Realize Judicial Justice

The procuratorial power is exercised by prosecutors through specific and vivid cases. Whether the behavior of a prosecutor is standardized is closely related to social evaluation, which is also a necessary condition for realizing judicial justice. To standardize judicial behaviors is to require the national judicial organs and judicial personnel to

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23

deal with cases in the specific activities by applying the law according to the established norms and requirements, and meet the specified standards. It is conducive to maintaining the authority of law, promoting social fairness and justice and improving judicial credibility to standardize judicial behaviors. Judicial credibility is slowly accumulated by standardized judicial behaviors. The words and deeds of judicial personnel in society are closely related to judicial credibility. Although the powers of procuratorial organs in China are mostly procedural, whether the behaviors of prosecutors are standardized and legal will also directly affect the judicial effectiveness and the image in the eyes of the common people, especially the local prosecutors. A large number of cases they deal with every day are related to the interests of the civilians closely. The importance of standardizing judicial behaviors of prosecutors is self-evident to the realization of judicial justice and the improvement of judicial credibility.

1.4.3 Deepening the Procuratorial Reform Continuously Undoubtedly, this is an era of change, full of challenges and opportunities, especially in a developing country such as China. Although the procuratorial organs in China, on the whole, adapt to the national conditions and the needs of the times with various characteristics and advantages. However, compared with the new needs of the people in a new era, the legal supervision function of procuratorial organs needs to be strengthened and improved in many aspects. Therefore, how to give full play to these characteristics and advantages? It can be said that the most effective way is to constantly update the judicial procuratorial ideas and deepen the reforms in problematic fields, which mainly includes the following aspects specifically.

1.4.3.1

Deepening and Updating the Judicial Procuratorial Ideas Constantly

Idea is the forerunner of action. In recent years, the party committee of the SPP has persisted in guiding and practicing a series of judicial procuratorial ideas under the guidance of Xi Jinping’s rule of law, such as the idea of “supervising in handling cases and handling cases under supervision”, “precise supervision idea” and the idea of “both winning, multi-winning and all winning”, the idea of “less arrest, cautious prosecution and cautious detention”.43 Two batches of typical cases of self-defense, such as “Kunshan Longge case”, were released to firmly defend that “law cannot 43

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.

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1 Origin and Characteristics of the Procuratorial System in China

give way to lawlessness” and make a strong interpretation of upholding an objective and fair position. Two men in Zhejiang province secretly took pictures of a woman who picked up the express and made a rumor that she had an affair. The procuratorial organ suggested that the public security organ filed a case and turned the private prosecution to public prosecution, reflecting the consciousness of the rule of law. We should increase the cost of breaking the law and reduce the cost of safeguarding rights so as to lead the society to form a network of rule of law and improve the consciousness of respecting personality rights. We will continue to clean up the “pending cases” of private enterprises that have not been settled for a long time, and strengthen the legal supervision over the handling of cases by the public security organs and the people’s courts as well as the internal supervision of the prosecutors in handling cases, which is the practice of the idea of “supervising in handling cases and handling cases under supervision”. These judicial procuratorial ideas should continue to be deepened and updated in a new development stage.44

1.4.3.2

Increasing Judicial Openness and Maintaining Integrity with Transparency

Sunshine is the best preservative. To promote fair justice, we should adhere to promoting justice and building public trust through openness. If there is no sunshine in the operation of power, or if there is selective sunshine, the credibility cannot be established. The more open the judiciary is, the more credible it will be. Judicial openness is not only an inevitable requirement for realizing judicial justice and improving judicial credibility, but also a powerful footnote to the progress of a country’s rule of law. At the same time, it is also one of the important contents of comprehensively promoting the rule of law and building a fair, efficient and authoritative socialist judicial system with Chinese characteristics in a new era. With the development of economy and society, the people have higher requirements for judicial openness. Judicial organs, including the procuratorial organs in China, should enhance the awareness of active openness and active acceptance of supervision, improve mechanisms, innovative methods and smooth channels, and timely disclose the judicial basis, procedures, processes, results and judgment documents of law enforcement in accordance with the law as well as improve judicial transparency in an all-round way so as to make there is no space for black box operation and nowhere to hide judicial corruption.45

44 45

Zhang (2021, p. 001). Tong (2021, p. 14).

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1.4.3.3

25

Strengthening the Principle of People-Centered in Handling Cases

Popular support is the greatest political. General Secretary Xi Jinping stressed that the most extensive and profound foundation for comprehensively administering the country by rule of law is the people. The fundamental purpose of promoting the rule of law comprehensively is to protect the people’s rights and interests in accordance with the law. The vast majority of judicial cases handled by the procuratorial organs are common and frequently happening around the masses, which is a “big thing” for the involved people and their families. These cases are all related to politics and law, which are accumulating fairness and justice. While handling cases, the prosecutorial organs should not only keep the bottom line of “not breaking the law” in form, but must integrate natural reason, national law and human feelings with adhering to the unity of political effect, social effect and legal effect and making justice both strong and warm. At present, we should focus on a series of procuratorial work for the people, such as the prominent problems strongly reflected by the people in the field of the rule of law, continuing to pay close attention to the public interest litigation in the field of food and drug safety, supervising deep-seated violations in the field of false litigation and promoting the comprehensive administration of manhole covers, and so on. In addition, we should take public hearings as the starting point, earnestly implement the people’s letters and complains with heart to heart and respond to them one by one, so that fairness and justice can be realized in a way that the people can feel, touch and see.

1.4.3.4

Deepening Procuratorial Reforms and Promoting Judicial Justice

The purpose of procuratorial reform is to better realize judicial justice, and solving many problems that hinder fair justice in law enforcement, and justice can only be realized by deepening procuratorial reform comprehensively. “Deepening the reform of judicial system is to uphold the leadership of the Party better, play the characteristics of our judicial system better and promote social fairness and justice better.”46 Therefore, it is an important measure to promote the modernization of the national governance system and governance capacity to deepen the reform of the judicial system and build a fair, efficient and authoritative socialist judicial system. To deepen the reform of the judicial system, firstly, we should adhere to the correct political direction, and proceed from China’s national conditions and the reality of economic and social development, whose purpose is to better develop the cause of the Party and the people, and improve judicial credibility and let justice really play the role of the last line of defense to maintain social fairness and justice. Secondly, we should strive to solve the deep-seated problems affecting judicial justice and restricting judicial capacity, and crack the systematic, institutional and safeguard 46

Xi (2020, p. 60).

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1 Origin and Characteristics of the Procuratorial System in China

obstacles from three aspects: ensuring the independent and fair exercise of judicial power and procuratorial power in accordance with the law, improving the operation mechanism of judicial power and improving the judicial safeguard system of human rights. As to the procuratorial reform, the current reforms that need to be deepened include the following three levels47 : (1)

Reform at the Level of Judicial System China’s judicial system is established and developed under the leadership of the Party and the people in long-term practice. On the whole, it is suitable for China’s national conditions and the socialist system in China. In the past, some problems such as judicial injustice, false and wrong conviction cases, judicial corruption, handling cases for money or involved in power and human relations, should be solved at the institutional level; otherwise, it will seriously affect the process of administering the country by rule of law comprehensively and realizing social fairness and justice. A

47

Reforming the Management System of Judicial Personnel and Implementing a Quota Control System for Procuratorial Personnel It is in a fundamental position in deepening the reform of judicial system to explore and implement the separation between the power of managing judicial administrative affairs and the judicial and procuratorial power in the courts and procuratorates in order to establish a judicial personnel management system in line with professional characteristics. Judicial activities have a special nature and rule. Judicial power is the power to judge and adjudicate the facts and laws of a case, which requires the judicial personnel to have corresponding practical experiences and social experiences, good legal professionalism and judicial ethics. As early as in 1880, Justice Holmes said that “The life of the law has not been logic: it has been experience.” For a long time, the judicial personnel in China has been positioned as ordinary civil servants with the same basic management mode as that of the civil servants, which has brought lots of disadvantages. In reality, in order to be promoted in the administrative rank, some judges and prosecutors are willing to work in non-business departments such as the general office, or leave the front line of handling cases to do the management work. In many local courts and procuratorates, the judges or prosecutors in their fifties are most experienced in handling cases and have the strongest professional ability. However, in order to make room for the promotion of young people, they have to retreat to the “second tier” (behind the scenes) in advance, which results in a waste of human resources. On the one hand, the majority of judges, prosecutors and people’s police at the local level have heavy tasks and great pressure. On the other hand, they have low rank, poor

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.

1.4 How to Improve the Procuratorial System with Chinese …

B

48

27

treatment and limited development room. Therefore, some young people like to transfer to other party and government departments, some become lawyers or do business, which has also resulted in a relatively prominent brain drain and fault. According to statistics, in the 20 years from 2000 to 2020, there are totally 70 National Top Ten Excellent Prosecutors of seven sessions. Among 60 excellent prosecutors in the first six sessions, 47 are no longer in their original units, accounting for 78%; 20 persons are no longer in the procuratorates, accounting for 33%. It can be seen from this aspect that the loss of outstanding talents in the procuratorial organs is still quite serious.48 In order to implement the classified management system of judicial personnel, the procuratorial organs across the country began to the reform at the end of March 2017. At present, many local procuratorates are exploring and improving the exit mechanism of post prosecutors. Constructing the withdrawal mechanism of post prosecutors is not only an internal requirement of realizing scientific management of post prosecutors, but also a key measure to solve practical problems. On May 17, 2020, the SPP issued Several Provisions on the Performance Evaluation of Prosecutors, which clearly stipulates in Article 30 that the performance evaluation results shall be used as an important basis for the distribution of performance bonuses, excellent awards, grade promotion, exchange of posts and withdrawal of prosecutors. The purpose of realizing the quota control system of procuratorial personnel and implementing the classified management of them is to let outstanding talents flow to the front line to handle cases and form a high-quality professional team gradually so as to ensure the quality of handling cases and realize judicial justice. This reform needs to be further deepened and improved in the future. Reforming the Management System of Judicial Organs in the Aspects of Personnel, Property and Materials so as to Provide Material Support for the Realization of Judicial Justice For a long time, the salary of judicial personnel and funds of judicial organs in China have been implemented the system of hierarchical management and hierarchical burden. The operation of judicial power is subject to local, and judicial activities are easy to be disturbed by the local leaders. However, China is a unitary country and the judicial power is fundamentally a central one. The personnel, property and materials of judicial organs should be uniformly managed and safeguarded by the central government. Major countries in the world also generally implement the unified management of judicial personnel, funds and other judicial administrative affairs by the state or a special agency. “Considering

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.

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that there are a large number of judges and prosecutors in China and it is difficult to achieve unified management and guarantee at the central level at this stage, this reform mainly promotes the establishment of a unified management system for the number of judges and prosecutors, the courts and the procuratorates below the provincial level, and a mechanism whereby judges and prosecutors are nominated and managed by the province and appointed and removed in accordance with legal procedures; We will explore the way for provincial finance to co-ordinate the funds of local courts and procuratorates at all levels.”49 In order to reduce the disadvantages of local financial expenditure in the funds of local procuratorates, over the past few years, the local procuratorial organs have started to reform the personnel and property management system in accordance with the relevant deployment of the central government and actual situations of various localities, but the reform process is fast or slow. Some are directly appropriated by the provincial financial department; some regions are still safeguarded by the same level of finance. In addition, some areas are under the unified management of cities. In the next few years, we still need to promote this reform continuously so as to reduce the obstacles brought by the unreasonable personnel and property management system to the realization of judicial justice. (2)

49

Reform at the Level of Operating Mechanism of Power To improve judicial system and deepen the reform of judicial system, we should follow the objective rule of judicial activities and reflect the requirements of unification of powers and responsibilities, restriction of power, openness and justice and respect for procedures. This is the basic rule of the operation of judicial power. In view of the many problems existing in the operating mechanism level of power, General Secretary Xi Jinping pointed out: “the problem is the guidance of work and the breakthrough point of reform. We must firmly grasp major issues and key issues that affect judicial justice and restrict judicial capacity so as to enhance the pertinence and practicality of the reform.” In China, “the deep-seated reasons for judicial injustice lie in the imperfections of the judicial system, the unscientific allocation of judicial powers and operation of the power system and the unsound human rights protection system.”50 Therefore, in addition to ensuring the independent and impartial exercise of judicial and procuratorial power in accordance with the law, and establishing a record, notification and accountability system for the leading

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.

50

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29

cadres to intervene in judicial activities and intervene in handling specific cases, the following mechanisms are worth exploring. A.

B.

Exploring the Establishment of the People’s Courts and the People’s Procuratorates Across Administrative Divisions In recent years, there are more and more cross-border administrative divisions and even cross-border cases, and the amount involved is increasing. As a result, the relevant departments and leaders in the location of the judicial organs pay more and more attention to the case handling, and even use their powers and relations to intervene in handling cases, which is not conducive to the equal protection of the legitimate rights and interests of parties from other regions. “We will explore the establishment of the people’s courts and the people’s procuratorates across administrative divisions, which will contribute to eliminating interference with judicial and procuratorial work, ensuring that the courts and the procuratorates to exercise judicial and procuratorial power independently and impartially in accordance with the law, and building a litigation pattern in which ordinary cases are tried in administrative district courts and special cases are tried in the courts cross the administrative district.” This is the plan put forward in the the Decision of the CPC Central Committee on Several Major Issues in Comprehensively Promoting the Rule of Law in 2014. At present, the circuit courts of the SPC which are across the administrative divisions have established six circuit courts around the country, such as Shenzhen, Shenyang, Nanjing, Zhengzhou, Chongqing and Xi’an. However, the reform of setting up the people’s procuratorates across administrative divisions is still under planning. We will step up our efforts in accordance with the requirements of the central government and the deployment of the SPP so as to supervise the government’s administration better in accordance with the law and maintain the fair implementation of the law. Promoting the Reform of Trial-centered Procedural System The purpose of promoting the reform of trial-centered procedural system is to promote the personnel who handles cases to establish the idea that the case handling must withstand the legal test, to ensure that the facts and evidence of the case investigated, reviewed and prosecuted can withstand the legal test, and ensure that the trial of the court plays a decisive role in finding out the facts, identifying evidence and ensuring litigation right and fair judgment. It is an important link to ensure the quality of handling cases and judicial justice to give full play to the role of trial, especially the court trial. Promoting the reform of trial-centered procedural system is conducive to promoting the procuratorial personnel who handles cases to increase their sense of responsibility, realize the substantive justice of case judgment through the procedural justice of court trial and effectively prevent the occurrence of unjust, false and wrong cases.

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C.

51

After the reform of the trial-centered procedural system, the higher requirements are put forward for the evidence in the court trial. Therefore, the corresponding requirements are put forward for the investigation and evidence collection of the investigative organs and the illegally obtained evidence will be excluded in the court trial. As a connecting link between the preceding and the following in the criminal procedure, the procuratorial organs must strictly grasp the three requirements of evidence (objectivity, relevance and legitimacy) when examining and prosecuting the cases, and guide the evidence collection of the investigative organ meantime. In addition, we should properly handle the relationship between “taking trial as the center” and “implementing the lenient system of accepting confession and punishment”. On the one hand, the principle of “trial centered” has universal guiding significance and binding force, and the operation of the lenient system of accepting confession and punishment should be guided and bound by this principle. On the other hand, the two complement each other. Without the trial-centered principle, there will be no lenient system of accepting confession and punishment; on the contrary, if we do not implement the lenient system of accepting confession and punishment, the principle of trial centered will be difficult to be adhered to. The conflict between the two mainly comes from the absolute and one-sided cognition and the solidified and rigid ideas. Exploring the Establishment of Public Interest Litigation System Initiated by the Procuratorial Organs After all, a small number of administrative violations constitute criminal crimes, and most of them are disorderly actions and inactions. If such violations are ignored and develop by themselves, on the one hand, it is impossible to reverse the administrative chaos in some regions and departments; on the other hand, it may turn some emerging problems into criminal crimes. Therefore, General Secretary Xi Jinping clearly pointed out: “In performing their duties, the procuratorial organs find that the administrative organs’ behaviors which are illegally exercising their functions and powers or without exercising their functions and powers, and should urge the administrative organs to rectify them.”51 The public interest litigation initiated by the procuratorial organs is conducive to optimizing the allocation of judicial power, improving the administrative litigation system and promoting the construction of the government under the rule of law. This decision points out the direction for the procuratorial organs to explore and establish the public interest litigation system. The 4th Plenary Session of the 19th CPC Central Committee further called for “expanding the scope of public interest litigation cases” and “improving the ecological environment public interest litigation system”, which fully

Xi (2020, p. 101)

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31

affirmed the procuratorial work of public interest litigation and pointed out the way for the further improvement and development of this system. In taking the people as the center and bravely exploring the procuratorial road of public interest litigation with Chinese characteristics, the procuratorial organs all over the country take the concept of “both winning, multi-winning and all winning” as the guidance with realizing the purpose of safeguarding public interest before litigation as the best state and make litigation a vivid lesson in the rule of law. In view of the difficulties in determining jurisdiction, investigating and obtaining evidence and judicial authentication of public interest litigation cases, the SPP, together with the SPC, issued a judicial interpretation and signed cooperation opinions with 9 ministries and commissions such as the Ministry of Ecology and Environment in February, 2018. Over the past five years, the procuratorial public interest litigation system has effectively promoted administration according to law, safeguarded the national and social public interests and formed a “Chinese proposal” for judicial protection of public interests. However, at present, the public interest litigation system in China still faces many problems in practice. In the future development, we should strengthen the basic capacity-building of public interest litigation and improve the level of specialization in handling cases, such as giving the procuratorial organs a strong public interest litigation investigative power, establishing a public interest litigation procuratorial talent pool and an expert pool related with the field of public interest litigation, and actively “borrowing strength” and “borrowing wisdom”, so as to build a system of public interest litigation with procuratorial public interest litigation as the main body and give full play to the role of the procuratorial organ as the main force. (3)

52

Reforming and Improving the Relevant Supporting Systems The reform of the judicial system must adapt to China’s fundamental political system, basic political system and the level of economic and social development, and maintain our own characteristics and advantages. We should learn from the beneficial achievements of rule of law in other countries, but we cannot copy their judicial systems. Therefore, General Secretary Xi Jinping emphatically emphasized we should “deepen the reform of judicial system comprehensively, implement the judicial responsibility system fully and try to make people feel fair and just in every judicial case.”52 As to the procuratorial organs, the procuratorial reform is a driving force for the continuous

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.

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innovation and development of procuratorial work, whose purpose is to make the procuratorial organs play their functions better and promote the realization of judicial justice. A.

53

The Reform of the Internal Organizations The internal organization of the procuratorial organ is the “four beams and eight pillars” of the operation of procuratorial power, which reflects the internal management mechanism of the procuratorial system. Under the background of the reform of judicial accountability system, the reform of internal organizations of procuratorial organs is a major reform focusing on the good operation of procuratorial power, following the rules of power operation and procuratorial work, paying attention to the principle of combining unity and flexibility and to the coordination and connection of relevant supporting systems meantime. The pilot reform was launched in 2016. It took several years for the local procuratorial organs to continuously complete the simplification and merger of internal institutions so that they can achieve the goal of being contributive to exercising the procuratorial power fully, the effective exerting the procuratorial supervision function effectively and improving the procuratorial credibility on the basis of mutual restriction greatly. As the foothold of the reform of the judicial accountability system, the reform of the internal organizations of the procuratorial organs must be matched with the accountability system of handling cases and the organizations of handling cases after the reform of quota control of prosecutors as to achieve the seamless connection. The reduction in the number of internal institutions does not mean weakening the internal supervision and restriction mechanism. On the contrary, with the growth of organizations of handling cases, we should further strengthen the management of internal institutions on judicial business and administrative affairs of organizations of handling cases and truly establish a flat mode of judicial case handling that highlights the dominant position of prosecutors so as to improve the efficiency of judicial case handling and realize judicial justice.53

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.

1.4 How to Improve the Procuratorial System with Chinese …

B.

C.

54

33

The Reform of Integration of Arrest and Prosecution On behalf of the national and social public interests, the procuratorial organ charges the offender with criminal responsibility by initiating and supporting public prosecution so as to maintain the unified implementation of national legal system, which is the power of prosecution. For the procuratorial organ in China, there is also the power to approve arrest, which means that the procuratorial organ has the power to examine and approve the arrest application filed by the public security organ or other investigative organs and decide whether to arrest the suspects or not. The reform of the integration of arrest and prosecution is to entrust these two powers to the same prosecutor, whose purpose is to improve work efficiency and reduce repeated labor in reviewing the same case. At the beginning of 2018, when the SPP put forward the reform of the integration of arrest and prosecution, this reform soon became a hot issue since both theoretical and practical circles raised lots of inquiries immediately. However, under the background of the reform of judicial accountability system, the quota control of prosecutors, the reform of the integration of arrest and prosecution can not only solve the practical dilemma of more cases and fewer people, but also accord with the idea of safeguarding human rights. Such reform has its legitimacy in theory and rationality in practice, which can be proved by the achievements of procuratorial practice in the following three years.54 Improving the Evaluation System of Prosecutor Performances It is an important measure for the procuratorial organs to implement the reforms of judicial responsibility system and quota control of prosecutors to improve the performance evaluation mechanism of prosecutors. Scientific and reasonable contents of performance evaluation have the function of “baton”, which is conducive to guiding and stimulating the work enthusiasm of procuratorial personnel and also helping to promote the sustainable development of procuratorial cause. Since 2019, Attorney General of the SPP Zhang Jun has paid special attention to the establishment of a system with scientific and reasonable performance evaluation for prosecutors with emphasizing that it should distinguish between doing or not doing, doing more or doing less, doing well or doing badly through the performance evaluation. In 2020, the SPP formulated Several Provisions on the Performance Evaluation of Prosecutors. He creatively put forward the concept of “case-to-case handling links ratio” and required to take this as the core to build a prosecutor’s performance evaluation system, set indicators that can be used for monthly, quarterly, semiannual and annual evaluation and take the evaluation results as an important basis for evaluating the excellence and

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.

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promoting the rank. At present, all departments of the SPP including my Institute of Procuratorial Theory are carrying out the performance evaluation of prosecutors every month. Various problems having been exposed, such as the unscientific assessing indicators, unreasonable score and incomplete of factors in evaluating a case, which will be solved in further improving the performance evaluation indicators and contents in the future.

1.4.4 Building a High-Quality Procuratorial Team with Both Integrity and Ability In China, we should have a high quality to implement the basic strategy of governing the country by rule of law and build a socialist country under the rule of law. Judicial personnel should be upright, have the courage to take responsibility, dare to remove internal and external interference from the judicial organs in accordance with the law and adhere to the bottom line of fair justice. Firstly, “the political and legal system should put the construction of specialization in a more important position. The construction of specialization should highlight the guidance of actual combat, practicality and effectiveness, and comprehensively improve the ability of political and legal personnel to apply laws and policies, prevent and control risks, work with the masses, apply science and technology and guide public opinion.”55 We should strive to build a political and legal team with firm faith, law enforcement for the people, dare to take responsibility, integrity and honesty in order to build a socialist country with its own characteristics, promote the modernization of the national governance system and governance capacity, win a decisive victory in building a well-off society in an all-round way, start a new journey of building a socialist modern country comprehensively and realize the Chinese dream of great rejuvenation of Chinese nation. Secondly, we should adhere to building a high-quality team with both integrity and ability in realizing the rule of law. “In a new era, fairness and justice are more expected and cherished by the people in China. In performing their duties, the prosecutors must uphold an objective and fair position, not only be prosecutor of crimes, the protector of innocence and the defender of justice, but also strive to become the leader of socialist legal consciousness with Chinese characteristics and the progress of the rule of law and truly achieve the organic unity of combating crimes with protecting human rights and the pursuit of efficiency and judicial justice.”56 Therefore, the Procuratorial organs should comprehensively strengthen the construction of the political quality, professional quality 55

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

1.4 How to Improve the Procuratorial System with Chinese …

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and professional ethics of procuratorial personnel, and strive to build an excellent procuratorial team that is loyal to the party, serves the people, enforces justice and has strict discipline. In particular, we should always adhere to the main tone of strictness, implement the main responsibility of administering the party and the procuratorial organ comprehensively and strictly and speed up the construction of a standardized and efficient restriction and supervision system of the procuratorial powers. As the premise of realizing the comprehensive rule of law, to ensure and promote social fairness and justice is also an internal requirement of socialism with Chinese characteristics and a very noble value goal pursued by the Party. On the new journey of comprehensively administering the country by rule of law, we should constantly improve the judicial system and mechanism, constantly improve the judicial quality and credibility, use an iron judicial team to hold the last line of defense of justice so that the people can truly feel justice in every judicial case.

1.5 Conclusion Like socialism with Chinese characteristics, the socialist procuratorial system with Chinese characteristics also has a process of continuous exploration and improvement. Actually, there are still lots of shortcomings in the procuratorial system in China that need to be continuously reformed and improved in the future. We still have to explore how to make the legal supervision with Chinese characteristic more scientific, reasonable and effective constantly. However, in the primary stage of socialism and in the process of China’s rule of law, the procuratorial organs in China have these functions and powers with many characteristics, it should be said that they have institutional legitimacy, rationality and practical necessity. Such system comes down in one continuous line with the leadership of the CPC, socialism and the People’s Congress system. In a word, due to the above these characteristics, the present procuratorial system of China plays an important role in monitoring and restricting the operation of powers such as law enforcement and justice, as well as punishing crimes, protecting human rights and maintaining fairness and justice in China’s national political and social life, especially after the recovery and reconstruction, such role has been becoming more and more prominent. I have to say, the powers of the procuratorial organs are really extensive since it copied the model of the procuratorial system in Soviet Union. In addition, the discretion power of the prosecutors in China is also very extensive, especially after the implementation of the lenient system of accepting confession and punishment in accordance with the stipulations of the Criminal Procedural Law in 2018. However, these topics are beyond the scope of this chapter, I will continue to expound and discuss the relevant contents in the following chapters.

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References 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

Chapter 2

On the Organizations of the Procuratorial Organs in China

The prosecutorial organizations are the carriers for the procuratorial organs1 to exercise their functions and powers, whose settings are not only closely related to the historical traditions and legal systems, but also are adapted to the specific national conditions of each country and the actual needs of the time. Due to the different understanding of the nature of prosecutorial power and the legal position of procuratorial organs, there are also clear distinctions in the establishment of such agencies. The mode of setting up a country’s prosecutorial agency not only reflects the status of such department in the state agencies, but also shows the internal management of the prosecutorial system. From the perspective of the world, there are two main models which are typical at present. The first is the model of the joint agency with prosecution and the court. In this model, the prosecutorial organ is attached to the court, but there is no affiliation or leadership relationship with the court. The prosecutors are independent of the courts, which are administrative organs, but endowed with judicial attributes. The prosecutors are set at different levels of the courts and have a leadership relationship between the superior (or head) prosecutors and inferior ones (or those who work for him/her). This model originated in the countries of Civil Law System. At present, many European countries adopt this model, such as France, Germany, Italy and Belgium. The second is the model of separate agency between the prosecution and the court; that is to say, the prosecutorial agencies are established separately to form their own systems, and cooperate with the courts and separate from the courts completely. The prosecutorial agencies and the courts belong to different power systems. At present, most countries in the world have adopted such model, especially in those countries with the adversarial system of Common Law System, where the prosecutors belong to pure administrative staff, such as the USA, Britain and Australia.2 As to the organization of procuratorial system in present China, in accordance with the stipulations of the Constitution of P.R.C., the position of the procuratorial organ is 1 2

Here, the procuratorial organs (agencies) means the offices of prosecutors in China. Ji (2013, p. 16).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 M. Ji, Brief Introduction to the Procuratorial System in China, Understanding China, https://doi.org/10.1007/978-981-16-8611-5_2

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“the state organ of legal supervision,” which is not a part of the executive branch of the government, but is an independent branch of the state at the same level as the executive branch. So in China, the procuratorial agency (or prosecutorial agency/department) is one of several major state institutions stipulated by the Constitution of P.R.C clearly and considered as “judicial organ” just like the court in common sense. In order for foreign readers to better understand the organization of the procuratorial system in present China, I will describe it from two aspects: external organization system and internal one. The first part of this chapter introduces the external organization of the procuratorial agencies in China which include four levels: the Supreme People’s Procuratorate, the provincial procuratorates, the city procuratorates and the local procuratorates. The each level procuratorates have their own functions and powers though most of them are common. The structure of the procuratorial organs in China is just like a pyramid, with the Attorney General at the top. The second part outlines the necessary internal departments of each procuratorate and the necessity of the internal reform since the power, organization and anti-corruption personnel of the procuratorial organs have been transferred to the National Supervisory Commission after its establishment in 2017. Then, I discuss the main values and great significance of reform on the current internal institutions. The third part demonstrates the requirements of the current change for internal institutions in China. The fourth part describes the main departments with their specific functions and power of the Supreme’s People’s Procuratorate which have been changed a lot in recent years. Finally, I conclude that in China, after major adjustments in the functions and powers of the procuratorial organs, as well as the superposition of the reform of judicial accountability system, quota control of prosecutors and the integration of arrest and prosecution, the reform of internal institutions is an inevitable choice. It helps to improve the work efficiency of the procuratorial organs, give full play to their functions and powers, and more importantly, it helps to improve the morale and mental outlook of prosecutors so as to step out of the low state after the power of investigation of duty crimes of the procuratorial organs has been taken away.

2.1 The External Organization System of the POC The setting up of the procuratorial organs of China carries out the principle of dividing the levels of procuratorates according to the administrative divisions and corresponding to the courts in accordance with law as well as the necessity of the prosecutorial work. According to the Constitution and also the Organic Law of the People’s Procuratorate of the P.R.C., the procuratorial system consists of the Supreme People’s Procuratorate, the local people’s procuratorates at different levels

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and special people’s procuratorates, such as military procuratorates.3 The procuratorial system is parallel to the executive system and judicial system. A procuratorate has the same jurisdiction as a court at the same level. So, “although the laws do not specify the functions and powers of the procuratorates at each level, they can be identified according to the statutory provisions concerning the functions and powers of the courts.”4

2.1.1 The Supreme People’s Procuratorate The Supreme People’s Procuratorate (SPP) is the highest prosecutorial organization in China, which was originated by the National People’s Congress and is responsible for reporting its work to it and its Standing Committee. The Supreme People’s Procuratorate directs the work of the local people’s procuratorates and the special people’s procuratorates, with the power to supervise their procuratorial work and personal management, whose functions and powers are mainly as follows: A. B.

C. D. E. F. G.

Directing the work of the local people’s procuratorates at all levels and that of the special people’s procuratorates; Exercising the Prosecutorial authority in major criminal cases with an impact in the whole country; lodging prosecution appeals, in accordance with the procedures of judicial supervision, against an already legally effective decision or ruling by a people’s court at any level if some definite error is found; Supervising the activities of prisons, detention houses and institutions for reeducation through labor in accordance with the law; Supervising civil and administrative litigation in accordance with the law; Handling the pubic interest litigation cases in accordance with the law; Interpreting laws applied to prosecutorial practice; making rules, provisions and regulations for prosecutorial practice; Managing and deciding on the organizational structure and the staff number of the people’s procuratorates at all levels.

2.1.2 The Provincial Level The Chinese local governments are established at four levels: the provincial level, the prefecture level, the county level and the township level. But the local people’s 3

Before the reform of internal organization of the procuratorial organs in 2018, there was another special procuratorate which was called the railway transportation procuratorate. At present, the railway transportation procuratorates were dismissed and the procuratorial department of railway transportation of SPP was changed into the department of litigation for public interest. So, the original personnel of the railway transportation procuratorate were merged into other departments of the people’s procuratorate. 4 He and Waltz (1995, p. 163).

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procuratorates are established at three levels without the township level. Except for the SPP, all other procuratorates are called the local people’s procuratorates. The provincial level is the highest level of the local procuratorial system in China, which includes the people’s procuratorates of provinces, autonomous regions and municipalities directly under the Central People’s Government. At present, there are 23 procuratorates of provinces, 5 autonomous regions and 4 municipalities directly under the Central People’s Government (Beijing, Tianjin, Shanghai and Chongqing) as well as two Special Administrative Regions Hong Kong and Macao. The people’s procuratorates at the provincial level have the functions and powers as follows: A. B.

C.

Directing the work of the procuratorates in the province, autonomous region or municipality directly under the Central People’s Government; Instituting and supporting the public prosecution in those cases tried by the high court at the province level, including cases of first instance and second instance; Appealing against the court judgment according to the procedure of adjudication supervision. In practice, the criminal cases tried by the high court in the first instance are those cases of provincial importance only.

For example, Zhejiang province, which is located at the southeast of China with rather developed economy, is one of the provinces with the smallest land area in China. In Zhejiang province, there are 104 procuratorates all over the province with about 7000 prosecutors and supporting staff. They have one provincial-level procuratorate with 2 branches, 11 city-level procuratorates and 90 county-level procuratorates. In Zhejiang People’s Procuratorate, at present, there is 1 General Prosecutor and 6 deputies, 3 full-time members of the procuratorial committee in the provincial procuratorate, within which there are 22 departments after the reform of internal institutions. There are 10 business departments, 2 comprehensive business departments and 10 comprehensive departments. The business departments from first to tenth are the same as that of the SPP, and the 2 comprehensive business departments are the Department of Comprehensive Instructions and the Office of Case Management. The comprehensive departments are supporting ones, such as the Political Department, the Office, the Department of Publication and Education, the Department of Procuratorial Technology and the Department of Retired Cadres, etc. There are about 280 personnel and among them, 87 are post prosecutors. So, these prosecutors are usually very busy in dealing with various cases.

2.1.3 The Prefecture Level The procuratorates at the prefecture level are branches of the people’s procuratorates of provinces, autonomous regions and municipalities directly under the Central People’s Government, which includes the procuratorates of autonomous prefectures and cities directly under the provincial governments. They are the middle level of the

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local procuratorial system. There are more than 300 procuratorates at this level in China. The main functions and powers are as follows: A. B. C.

D.

E. F.

Investigating the criminal cases handled directly by the procuratorates; Approving and deciding the arrest; Supervising the investigating activities of the investigating organs and the trial activities of the courts as well as the activities of the prisons, the detention houses and the organs of re-education through labor to see whether these activities are legal or not; Instituting and supporting the public prosecutions in cases tried by the intermediate people’s courts, including the cases of first instance and second instance; Instituting the litigation of public interest; Appealing those cases while considering the judgment or ruling of the first instance of a people’s court at the same level is indeed an error, according to the procedure of adjudication supervision. In addition, as the higher level of the county procuratorates, it has the power to supervise and direct the work of the procuratorates at the county level. In accordance with the stipulations of Article 21 of the New CPL which was amended in October 2018, the criminal cases tried by the intermediate courts in the first instance are those cases endangering the national security and terrorist activities, and the cases in which the defendant may be sentenced to life imprisonment or capital punishment.

There is a procuratorate at such level, which is the branch procuratorate of the People’s Procuratorate of Zhejiang province, whose name is Taizhou City People’s Procuratorate (台州市人民检察院). Under Taizhou procuratorate, there are three district procuratorates (Jiaojiang, Huangyan and Luqiao), three city procuratorates at county-level (Linhai, Wenling and Yuhuan) and three county procuratorates (Tiantai, Xianju and Shanmen). In Taizhou People’s Procuratorate, after the establishment of a supervisory committee and the reform on quota control of prosecutors, at present, there is one director and six deputy directors who are in charge of the whole business of the procuratorate. It has 110 staff with 14 internal departments, among them, 40 are post prosecutors and others are assistants and administrative staff. Ten departments are business ones, the names of the first department to the seventh department are the same as that of the SPP, the other three departments are: the Research Department of Law and Policy, the Office of Case Management and the Office of Supervision on Procuratorial Business. In addition, there are four comprehensive administrative departments: the Office Procuratorial Security, the Office of Human Resources (组 织人事处) and the Office of Education and Publication.

2.1.4 The County Level The county level is the primary level of the local procuratorial system in China. The procuratorates at this level include the procuratorates of counties, cities, autonomous counties and districts under the jurisdiction of the municipalities at the province level

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or the prefecture level. The people’s procuratorates at this level provide the main force of the procuratorial system in China. There are about 2,700 procuratorates at this level. The main functions and powers of such level procuratorates are as follows: approving and deciding on arrest; public prosecution; supervision on making cases and investigation; supervision on adjudication and punishment execution and the prosecution of litigation for public interest (including civil one and administrative one). In my hometown, Tiantai County, there is such procuratorate at this level, whose name is Tiantai People’s Procuratoate. Tiantai is a famous county in the east of Zhejiang province with nearly 1800 years of history. It is well-known as “the source of Buddhism, the hometown of Jigong, and the Holy Land of Hehe Culture”5 both at home and at abroad, which is also a national scenic spot 5A-level in China. During the Tang Dynasty (618–907 AD), the poet monk Hanshan secluded here for many years. In this procuratorate, there is 65 staff and among them, 25 are post prosecutors. It has 8 internal institutions, in which, the business departments are from the first to sixth procuratorial departments. The two comprehensive administrative departments are the political department and the office. There is one dispatched agency, which is Pingjie Procuratorial Office whose jurisdiction includes Pingzhen town and Jietou town with the functions of supervising the investigation of two police stations and the trial of one court within this jurisdiction and handling minor criminal cases as well as resolving disputes of the common people. In addition, the people’s procuratorates at the provincial and county level may, as required by their work, set up branches in industrial and mining areas, agricultural reclamation areas, forest zones, etc. with the approval of the standing committee of the People’s Congress at the same level, such as the above Taizhou People’s Procuratorate and Pingjie Procuratorial Office.

2.1.5 The Special People’s Procuratorate The special people’s procuratorates are procuratorial organs established in certain organizations and under the leadership of the Supreme People’s Procuratorate, such as 5

Guoqing Temple in Tiantai county is the ancestral home of Tiantai Sect of Buddhism; Ji Gong (1148–1209 AD), whose original name was known as Li Xiuyuan, a senior monk of the Southern Song Dynasty, was born in Yongning Village of Tiantai County. He was a famous monk with knowledge and good morals who was deeply loved by the common people in China by his various virtues such as helping the poor and exterminating violence, showing goodness and punishing evil. He understood the Chinese medicine well and cured a lot of difficult diseases for the people at that time, then left a unique and beautiful impression in the people’s hearts. Hehe culture (和合文化) means harmony and cooperation, which was represented by other two monks Hanshan and Shide who lived in Tiantai county, too. From a philosophical perspective, it is an ideological system that deals with the relationship between different things with the idea of harmony and thinking. From a cultural perspective, it is a cultural system with Chinese culture as its core and “Hehe Ersheng” as its symbol.

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the Military Procuratorates, which are special organs for legal supervision established in the People’s Liberation Army of China. They exercise prosecutorial authority in cases of dereliction of duty and other criminal offenses committed by active servicemen. Before the reform of procuratorial institutions in January 2012, there was another special procuratorate which was the Railway Transportation Procuratorates, which had branches in all regional railway bureaus and sub-bureaus. After this reform, the Railway Transportation Procuratorates were merged into the local management and the Procuratorial Department of Railway in the SPP was changed into the Procuratorial Department of Litigation for Public Interest in the end of 2018. Since the external organizations of the procuratorial system has not been changed a little after the foundation of new China, here I only give the above brief introduction to it, from which, you can see, on the whole, the procuratorial system of the P.R.C. is a highly centralized system. The Supreme People’s Procuratorate directs the work of the local people’s procuratorate and the special people’s procuratorate. The higher procuratorates direct the work of the lower procuratorates. The Attorney General of the P.R.C. provides the uniform leadership in the work of the entire procuratorial system. So, the structure of the system is like a pyramid, with the Attorney General at the top.6

2.2 The Internal Institutions of the POC As to the internal structure within the procuratorial organs, it has been changing a lot in the process of judicial reform in two decades, especially in recent years. However, whatever the change is, there must be some necessary internal institutions which are set up to carry out the functions and powers endowed by the Constitution and the related laws in China. So, we will discuss those necessary departments for the procuratorates at all levels at any time first.

2.2.1 Necessary Internal Departments of the Procuratorial Organs Due to the different functions and powers and the limitations of number for different scales of the procuratorates at different levels, the detailed departments of the procuratorates may be not exactly the same; however, each procuratorate mainly has the Prosecutorial Committee and several business departments for doing concrete business work and some other comprehensive departments for coordinating and supporting the procuratorial work. So, the internal structure of the procuratorates is usually set up with following departments. 6

He and Waltz (1995, p. 168).

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2.2.1.1

The Prosecutorial Committee

The chief director leads the prosecutorial work in a unified way. The prosecutorial committee is set up in every people’s procuratorate, which is followed by the system of democratic centralism and presided over by the chief director, the committee discusses major cases and other important issues and makes decisions by a majority vote. If the chief director disagrees with the majority’s decision on an important matter, it may be referred to the standing committee of the People’s Congress at the corresponding level for its decision.

2.2.1.2

The Departments of Prosecutorial Work

According to the stipulations and business division, the procuratorates at all levels set up several business departments. A.

B.

C.

D.

Procuratorial Department for Accusations and Petitions, Crime Reporting Center Be responsible for handling the crime reporting, accusations and charging by the citizens and receiving the criminal’s self-surrender; classifying the crime reporting, accusations and charging; conducting preliminary investigations on the information of crime reporting whose jurisdiction of the procuratorates is not clear and cannot be delivered to which department according to its nature; handling the petitions of refusing to accept the people’s procuratorate’s decision of no approval of arrest, no prosecution, withdrawal of cases and other decisions; handling the petitions of refusing to accept the criminal decision and ruling which are made and already effective by the people’s court and handling those criminal cases the people’s procuratorates have the obligations to pay for criminal damages, etc. The Department of Prosecuting with Cases of Duty Crime Be responsible for cases of duty crimes transferred from the Committee of Supervision, such as reviewing the arrest and prosecution, appeal and the supervision on trial as well as the supplementary investigation for such cases. The Department of Investigating Duty Crime Committed by the Judicial Personnel Be responsible for filing cases of crimes with infringing upon citizens’ democratic rights or undermining the justice duty crime found during the supervision on judicial activities by the judicial personnel, which are committed by taking advantage of their duty and investigating them, such as the illegal detention, torture and illegal search, etc. The Department of Authorizing Arrests and Supervising Investigation Be responsible for reviewing and deciding whether to authorize arrests or not, which are applied for approval by the public security organs, the State Security organs and the Department of Investigation within the People’s Procuratorates; reviewing and deciding whether the time of investigating detention which is

2.2 The Internal Institutions of the POC

E.

F.

G.

H.

45

applied for should be prolonged or not; supervising the situations that Public Security should file a case, but don’t do it or vice versa; supervising whether the activities of investigating are legal or not, etc. The Department of Reviewing Prosecution Be responsible for reviewing cases that are transferred for prosecution or non-prosecution by the public security organs, the state security organ and the Department of Investigation in the people’s procuratorate, then to decide whether to initiate prosecution or not; appearing in court to present public prosecution; supervising the activities of trials by the people’s courts; lodging a prosecution appeal according to the procedure of appeal against the criminal decisions and rulings which are definitely wrong, etc. The Procuratorial Department of Prisons and Detentions Be responsible for supervising the execution of criminal punishments and activities of prisons, houses of detention and institutions of detention; supervising whether the rulings or the following activities are legal or not, such as the court’s rulings of reducing sentences and probation, the activities of provisional execution outside the prisons decided by the administrative organs of prisons, the public security organs and the courts; supervising whether the activities of implementing the law of the institutions in charge of rehabilitation through labor are legal or not as well as supervising whether the activities of executing criminals outside the prisons managed by the public security organs and the judicial administrative organs are legal or not; filing cases of duty crimes emerging during the activities of execution of punishment and supervisions and administrations as well as developing the prevention of duty crimes; reviewing and approving arrest and prosecution of cases committed by criminals and prisoners and supervising whether the activities of filing a case, investigating and trials are legal or not and handling accusations, crime reporting and petitions by prisoner and his relatives and his statutory agent, etc. The Procuratorial Department of Civil and Administrative Cases Be responsible for supervising the activities of civil trials and administrative cases; lodging prosecution appeal against the civil and administrative decisions and rulings meeting the legal requirements which are already effective but definitely wrong given by the people’s court at various levels; conducting the preliminary investigation according to the clues or filing a case of duty crimes committed by judges, executing personnel during the process of handling cases of civil and administrative petitions, etc. At present, like the SPP, the vast majority of procuratorates have established the procuratorial department of civil cases and the procuratorial department of administrative cases respectively. The Department of Litigation for Public Interest Responsible for civil litigation and administrative litigation for public interest: such civil cases refer to the damage to the public interest, such as damage to the ecological environment and resources protection, violation of the legitimate rights and interests of many consumers in the field of food and drug safety; administrative litigation for public interest refers to the fields of ecological environment and resource protection, food and drug safety, protection of state-owned property and transferring of state-owned land use rights,

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I.

J.

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and public interest lawsuits that violate the names, portraits, reputations and honors of heroes and martyrs, etc. The Prosecutorial Department of Technology and Information Be responsible for case’s authentication and examinations of documents sent by the relative departments of the procuratorates; conducting inquest on the crime spots, collecting, fixing and extracting traces which are related with cases and doing scientific authentication; making the video and audio recording for the interrogations of suspects in a synchronous manner done by the procuratorates; being in charge of the registration of the Institutions of Authentication and appraisers of the procuratorate and being responsible for creating a plan, instruction and management related to the information and technology of the procuratorial organs. The Department of Disciplinary Examination and Inspections Be responsible for handling and investigating the crime reporting and accusation by the citizens and all kinds of people on illegal behaviors and the behaviors of breaking discipline, such as dealing with cases of breaking the law, exceeding one’s authority, torture, having banquet and accepting bribery done by the procuratorial personnel with taking advantage of their powers; strengthening the supervision of activities of handling cases and implementing laws by prosecutors through the forms of supervising the implementation of law, circuits, inspecting the prosecutorial business, and checking the economic responsibility of the prosecutors.

However, in recent years, China has implemented several important reforms, one of which is the establishment of the National Supervisory Commission, which according to its mandate should “strengthen the supervision of all public officials, fight corruption, help to establish a modern state governance system and build a stronger governance capacity,”7 Such an institutional change will naturally affect various aspects of the judicial system, especially the procuratorial system, since the power, organization and anti-corruption personnel of the procuratorial organs have been transferred to the aforementioned Commission. Indeed, the adjustment of the functional powers of the procuratorial organs will undermine the strength and effectiveness of supervision during investigation and adjudication phases, as the procuratorial organs no longer have the power to investigate duty crimes nor implement the drastic measures to supervise the illegal activities carried out by other public organizations and public servants. Actually, the functions and powers of the procuratorates in China has been changed a lot after this reform, especially the prosecutors in local procuratorates obviously feel such change in their daily work since other public servants do not attach as much importance to the work of prosecutors as they used to. In addition, there are other important reforms which have also brought great influence to the procuratorial organs, such as the reform of judicial accountability system and the reform on quota control of prosecutors. All these reforms have posed great challenges to the procuratorial organs. How to mobilize the enthusiasm 7

As stated in Article 1 of the Law of Supervision, which was adopted at the first meeting of the Thirteenth National People’s Congress of P.R.C. on March 20, 2018.

2.2 The Internal Institutions of the POC

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of prosecutors to get out of the downturn brought by the reform? How to optimize the internal institutions to give full play to the basic functions of the procuratorial organs: the power of legal supervision? In other words, the reform of internal institutions is imperative for the procuratorates at all levels at present. So, the Third Plenary Session of the 19th Central Committee of the CPC, which was held in February 2018, explicitly proposed “advancing the reform of the internal institutions of the courts and procuratorates.” Then, Article 18 of the Organic Law of the People’s Procuratorate, which was amended in October 2018, also clearly stipulates that the people’s procuratorate shall set up necessary business institutions according to the needs of procuratorial work; the city-level procuratorates with district branches and the local people’s procuratorates with a small number of prosecutors may set up comprehensive business institutions. We have to say these policies and stipulations indicate the direction for the new round of reform of the internal institutions of the procuratorates. However, this is a policy-oriented and extensive reform. How to optimize the internal institutions of the procuratorate? How to resolve some problems arising from the shrinking number of the internal institutions? What are the criteria for integrating internal institutions? The research team has done some empirical research on these issues and made some preliminary suggestions. In order to make the reform of internal institutions proceed smoothly and achieve the expected purpose, the value and significance of internal institution reform must be fully understood both by the leaders and by the prosecutors in the procuratorates at all levels.

2.2.2 Great Values of Changing the Current Internal Institutions As mentioned above, it is divided into four levels of the procuratorial system of China at present, the procuratorial powers performed by the procuratorates at each level are different. Externally, the procuratorial power exists as a whole. However, within each level of the procuratorate, the corresponding responsibilities of each department are also different. Some directly exercise a certain part of the procuratorial power, and some are to provide auxiliary help for others to exercise the procuratorial power, which are called comprehensive departments, such as the political department and the Department of Equipment and Security. In practice, whether each department can perform its duties correctly may directly or indirectly affect whether the procuratorial power can be effectively exercised in accordance with the law. Therefore, the establishment of scientific and streamlined internal institutions will undoubtedly facilitate the full exercise of the functions and powers of the procuratorate and safeguard the realization of judicial justice. No matter what kind of reform, it will involve the readjustment and distribution of the original benefits. Therefore, in order to reduce the resistance of the reform and obtain the support of the majority, it is necessary to systematically review the value and significance of the current internal institutional reform in order to let everyone

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“understand the reform fully, recognize it sincerely and support it definitely.”8 In our opinion, there are at least several values and significance for such reform.

2.2.2.1

Being Beneficial to Highlight the Constitutional Status of Legal Supervision of the Chinese Procuratorates

In accordance with the Constitution in China, the Chinese procuratorial organs are the state organ of legal supervision, whose functions and powers are allocated according to the status of legal supervision. The power of the procuratorates in China has both judicial and administrative attributes and the procuratorial organs are regarded as one of the judicial organs in China according to the traditional view. The power of legal supervision is the key one among various powers of the Chinese procuratorates. Therefore, the purpose of the reform of internal institutions is to classify the procuratorial powers with the same legal attributes, value goals and operating characteristics and establish the corresponding departments to exercise the functions and powers with the same legal attributes and characteristics in order to fully activate and integrate the limited procuratorial sources, which will be beneficial to achieve the ultimate goal of “handling cases while exercising supervision and exercising supervision while handling cases.”9

2.2.2.2

Being Beneficial to Implement the Judicial Accountability System

The reform of the judicial accountability system in the SPP began on June 12, 2017, when the SPP held a conference and deployed such reform. At this conference, the former Attorney General Cao Jianming pointed out that the reform of the judicial accountability system is the core and cornerstone of deepening the reform of judicial system. Previously, the local procuratorates have begun the trial. From the perspective of trials in various places, the effectiveness of such reform has gradually emerged as follows: First, the trial procuratorate returned to the standard of handling cases. The flow of outstanding talents to the front-line of handling cases was obvious. The force of the 8

Xue (2019, p. 5). Zhang Jun, the Attorney-General of the Supreme People’s Procuratorate, put forward such words when he did survey in the People’s Procuratorate of Yunnan province on May 8, 2018. He emphasized that, in accordance with the new requirements of the new era, we should take the case handling as the center, handling cases while exercising supervision and exercising supervision while handling cases, to comprehensively improve the political quality, business quality and the quality of prosecutor’s professional ethics, and to promote the innovative development of the procuratorial work in a new era. Then, he stressed it repeatedly on different occasions and it has gradually become the procuratorial aphorism and constantly developed the an idea to explore the new way of legal supervision.

9

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front-line in handling cases increased by about 20%, and more than 85% of judicial human resources were allocated to the case handling line. Second, the prosecutors on the front-line of handling cases supported the reform. The enthusiasm and sense of responsibility for handling multiple cases and handling cases well have been significantly enhanced, and the vitality of prosecutor team has continued to erupt. Third, the system and mechanism which are consistent with the judicial rules have gradually formed with the establishment of the subject status of prosecutors in handling cases and the improvement of the level of specialization and professionalism of the procuratorial team. Fourth, the quality and efficiency of handling cases have steadily improved, and the judicial credibility has continuously improved as well. Therefore, the trial practice has proved that the decision of implementing the reform of the judicial accountability system is completely correct, the trial was successful and the actual results are positive.10 Since June 2018, the procuratorial organs across the country have continued to advance such reform. However, with the deepening of the reform of judicial accountability system, the problems existing in the present internal institutions have become increasingly prominent, such as the imbalance between departments and the obvious contradictions between personnel and cases. The problem of imbalance in size, that is, the functions of business departments are different and the cases are somewhat different, which leads to the large differences in staff and the difficulty in deploying the prosecutors that is the operational basis of the judicial accountability.11 Another reason is that after the reform of quota control of prosecutors, in accordance with the unified requirements of the central authorities, the prosecutors and assistant prosecutors who were originally qualified to handle cases can not independently handle cases again because they did not receive the quota. As a result, the number of prosecutors qualified to handle cases has diminished. However, in order to make all procuratorial powers operate smoothly, it is necessary to deploy more post prosecutors to the front-line for handling cases and it is also necessary to arrange at least one post prosecutor to each business department, but the number of post prosecutors is far from enough. So, only through the reform of the internal institutions can the problems of imbalances in size and inequality be effectively resolved, and at the same time, the reform of the judicial accountability system and the system of quota control of prosecutors can be advanced and blossomed.

2.2.2.3

Being Beneficial to Highlight the Organization with Handling Cases as the Core in the Procuratorates

Due to the historical reasons, there are many internal institutions of the local procuratorates which are scattered, and a considerable part of them are the administrative 10 11

Wang and Zhang (2017, p. 1). Xue (2019, p. 6).

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departments which lead to weaken the capacity of handling cases. For example, before the reform, some local procuratorates set up the Political Department with several offices, such as the Office of Human Resources, the Office of Publication and Education, the Office of Retired Cadres and the Office of Direction for Local Construction, etc. Each office had its leaders and personnel. So, in order to promote the ranks, many outstanding prosecutors worked in the administrative departments and did not handle cases directly, which has wasted a lot of talent with true skill and genuine knowledge and is not beneficial to promote the specialization of the procuratorial team. Through the reform of internal institutions, the administrative departments are reduced but with high efficiency and the main force of the prosecutors will be concentrated on handling cases. From the new establishment of internal institutions, you can see such change and I will discuss it later by taking the internal institutions of the SPP as an example.

2.2.2.4

Being Beneficial to Optimize the Internal Institutions and Improve the Procuratorial Work Mechanism

Although the history of procuratorial system in new China is not so long, “the procuratorial system of China has gone through the development stages of establishment and cancellation, restoration and reconstruction, deepening reform and so on”12 and along with deepening the procuratorial reform, it has improved a lot in these years. With the expansion of the prosecutorial team, especially since 1978, when the procuratorial organs were reconstructed under the background of reform and opening up, the SPP (including its directly affiliated institutions) has grown from the “eighteen arhats”13 to 1000 people, and the procuratorial team across the country has reached 217,000 personnel.14 So, the internal institutions have also gradually been expanded, which has led to several problems. From a vertical perspective, there is no attention to the difference between the higher and lower procuratorial organs, but putting more emphasis on the vertical alignment with rigid adherence to the requirements of the integration of procuratorial work, which has resulted in excessively bloated internal institutions in the local procuratorates. From a horizontal perspective, the relationship between the internal institutions was not clarified. There are functional overlaps between some administrative departments and business ones, and the business departments are not prominent. Some functions of the 12

Zhou (2019, p. 44). Arhat is a Buddhist term, which refers to the monk who has broken all desires and relieved all worries, that is, the Buddhist monk who has reached nirvana. The analogy here is the prosecutor. 14 Wang (2019, p. 3). As a matter of fact, the number of people working in the procuratorial organs in China has reached a maximum of 280,000, and the number of people working in the supreme people’s procuratorate and its directly affiliated institutions has grown from the “eighteen arhats” to nearly 1000. In the reform of the state supervision system, the personnel who worked in the departments of anti-corruption and prevention on duty crime of the procuratorial organs have been transferred to the Commissions of Supervision at all levels. Currently, there are 217,000 prosecutorial personnel nationwide. 13

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specific business departments are not clear and the resource allocation is overlapped. Therefore, through the reform of internal institutions, it will rationalize the internal structures of the procuratorates, clarify the functions of various business departments and optimize the allocation of resources, so as to “build an organizational system with optimized functions, efficient operation, professional management and clear responsibilities.”15

2.2.3 The Requirements of the Reform for Internal Institutions In order to fully realize the value of internal institutional reform, this reform must follow some basic requirements in order to solve those problems that exist in the procuratorates at all levels. Frankly speaking, influenced by the bureaucracy in China over the years, there exist lots of problems in the local procuratorates, such as strong administrative colors, imbalance between the prosecutors and cases, simple combination of internal institutions and inconsistency in quantity, standards and names. Therefore, in order to thoroughly implement the central government’s overall plan for the reform of the judicial system, the procuratorial organs across the country have been advancing the reform of the judicial accountability system and the quota control of prosecutors (司法责任制和员额制改革). Then, they began the reform of internal institutions since the internal institution of the procuratorial organs is an important carrier for the operation of the procuratorial power, and it is the “four beams and eight pillars” of the procuratorate, which also reflects the internal management mechanism of the procuratorial system. Therefore, after the Promotion Conference of Judicial System Reform held in Changchun in July 2016, the State Commission Office of Public Sectors Reform (中央编办, the shorter name is SCOPSR) and the Supreme People’s Procuratorate jointly issued the “Pilot Scheme for the Reform of the Institutions of the People’s Procuratorates below the Provincial Level” (hereinafter referred to as the “Pilot Scheme”), which allowed the local procuratorates to boldly explore such reform. With more than two years of exploration, some good ideas, patterns and detailed practices have emerged. So, the SPP began to reform its internal institutions by the end of 2018 and issued some requirements for such reform. According to the provisions of the Pilot Scheme, if the local procuratorates has a staff of less than 50 people (inclusive), the total number of internal institutions shall not exceed 5; if the staff are more than 51 but less than 100, the institutions are no more than 8; if the staff are more than 101 but less than 200, the institutions are no more than 10. However, due to the complications and decentralizations of procuratorial functions and work, the number of internal institutional are not exactly set up according to such stipulation. The above example procuratorates of Taizhou 15

Xue (2019, p. 5).

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and Tiantai have 14 and 8 internal institutions respectively, but Taizhou People’s Procuratoate has 110 staff and Tiantai People’s Procuratorate has 65 staff.

2.2.4 Principles of Establishing the Internal Institutions Since the current procuratorial system in China, as a whole, not only meets the national conditions and historical traditions, but also meets the requirements of the state system and government at the current stage, while also adapting to the development trend of modern rule of law. Therefore, when deepening the reform of the procuratorial system, in my opinion,16 we must first firmly grasp the general guiding ideology of the procuratorial reform and obey by the detailed principles in the reform of internal institutions which are as follows.

2.2.4.1

Matching the Characteristics of China’s Procuratorial System

Due to the differences in political systems, historical traditions and legal systems, while comparing with more mature and relatively consistent trial systems, no matter of the organizations and powers, the procuratorial systems of countries around the world have a colorful outlook.17 It can be said that it is almost impossible to find two identical procuratorial systems in the world. Since the characteristics and functions of the procuratorial organs of various countries are very different, while considering how to set up their internal institutions scientifically, the first thing for the local procuratorates in China to think over is to match the characteristics of China’s procuratorial system.

2.2.4.2

Focusing on the Procuratorial Power to Be Operated Well

The procuratorial power is the key content of the procuratorial system, and the operation of the procuratorial power must follow the rule of law, the principle of justice, openness and rationality, the principle of independence in accordance with the law and the principle of integration of procuratorial power. Therefore, the reform direction of the procuratorial internal institutions should also be conducive to carrying out and implementing these principles in practice.

16

As to the reform of internal institution, I did a research project on this topic in 2017. These views have been put forward in the report which was submitted to the Leaders of the SPP. 17 Zhen (2010, the preface, p. 3).

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2.2.4.3

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Following the Operation Rules of Power and the Procuratorial Rules

In accordance with the stipulations of the Constitution in China, the Chinese procuratorial organs are special organs of legal supervision. Relatively speaking, their functions are quite extensive. That is to say, they have the power of investigation, prosecution, approving and deciding arrest and the procedural supervision, all of which are merged into one body. So, these powers should follow the operation rules of power in practice, such as the power should be appropriately decentralized and supervised appropriately. In other words, the procuratorial organs should also separate the powers of investigation, approving arrest and prosecution by dividing them into different internal institutions in order to prevent unfair law enforcement that may arise from excessive concentration of powers.18 The procuratorial rules are a series of relatively stable procuratorial relations in the procuratorial system and procuratorial work, including the internal management relations of the procuratorial organs, that is, the management relations formed within the procuratorial organs to safeguard the performance of their functions in accordance with the law.19 Such relationship must also be fully considered and reflected in the reform of internal institutions.

2.2.4.4

Adhering to the Principle of Combining Unity and Flexibility

As an important part of the judicial organs in China, the procuratorial organs play an integral role in the criminal justice operation process, and at the same time, they are responsible for supervising the unified implementation of national laws. Therefore, as a judicial organ, in order to ensure the integrity and the effectiveness of exercising its power, both the external and internal institutions must be uniform in their settings. However, due to the vast territory and the huge differences in economic development between the east and the west in China, the types and number of cases also vary greatly. In addition, the functions and functional positioning of the procuratorates at all levels are different, too. Therefore, the local procuratorates should pay more attention to the specific settings of the internal departments and should not correspond to the internal agencies of the higher level procuratorates rigidly.

2.3 Internal Structure of the SPP From the national level and the ultimate goal, all procuratorial reforms are to improve the procuratorial system in order to serve the national governance better. Therefore, “it is not only the goals and tasks, but also the basis and framework for the comprehensive development of the procuratorial work by adhering to and improving the 18 19

Ma and Ji (2003, p. 96). Xie (2016, the preface, p. 3).

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socialist procuratorial system with Chinese characteristics as well as advancing the modernization of the procuratorial supervision system and supervision capabilities. For more than a year, the People’s Procuratorates have actively integrated into the national governance system and the modernization process of governance capacity and have carried out systematic, holistic and restructuring reforms of their internal institutions and procuratorial business, which has formed the basic pattern with “four kinds of procuratorial functions” and “ten business departments.”20 According to the necessary departments of procuratorial work and the requirements discussed above, after the new reform of internal institutions, at present, the internal structure of the SPP is set up by the cases handled. Generally speaking, the business work of the procuratorates can be divided into four parts: the criminal procuratorial work, the civil procuratorial work, the administrative procuratorial work and the procuratorial work of litigation for public interest.

2.3.1 The Business Departments The Supreme People’s Procuratorate has one Attorney General, several deputy general directors and two full-time members of the procuratorial committee. As to its internal organization, it can mainly be divided into four parts: business department, political work department, comprehensive department and other departments. After the restoration and reconstruction in 1978, the business departments of the SPP mainly included the following departments: Public Prosecution, Supervision on Investigation, General Office of Anti-Corruption and Bribery, Malfeasance and Infringement Prosecution, Supervision on Execution of Punishment, Civil and Administrative, Complaints, Reviewing Criminal Decisions, Railway Transport Procuratorial, Duty Crime Prevention and other departments. These departments had their own business scope and corresponding powers, which provided a practical guarantee for the full implementation of the procuratorial power. However, at the end of 2018, the General Office of Anti-Corruption and Bribery was transferred to the Central Committee of Supervision, these business departments were merged into 10 procuratorial departments, whose functions and powers were also reorganized. At present, the SPP has 10 business departments with name from 1 to 10. According to the various cases, the division of responsibilities of each business department is as follows: The First Procuratorial Department is responsible for ordinary criminal cases, such as reviewing arrests, prosecuting and appealing criminal cases other than those cases handled by the Second, Third and Fourth Procuratorial Departments; conducting the supervision on making cases, investigation and trial as well as supplementary investigation of related cases and reviewing decisions of relevant criminal cases under the jurisdiction of the SPP.

20

Xie and Chen (2020, p. 003).

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The Second Procuratorial Department is in charge of serious criminal cases, such as crimes against the national security and public safety, crimes of intentional homicide, robbery, drugs handled by the SPP, as well as the legal supervision of reviewing the death penalty cases. The detailed work is the same as the First Procuratorial Department. The Third Procuratorial Department is responsible for the cases of duty crime transferred by the State Committee of Supervision, such as reviewing the arrest and prosecution, appealing and supervision on trial as well as the supplementary investigation for such cases. The Fourth Procuratorial Department is responsible for economic crimes which undermines the socialist market economy order. The detailed work of such cases is the same as the First Procuratorial Department. The Fifth Procuratorial Department is responsible for the supervision of law enforcement activities such as prisons, detention centers and community correction institutions; supervision of criminal judgments, enforcement of rulings, enforcement of compulsory medical treatment, detention and the deadline of handling cases and review of the necessity of detention; handling those crimes of infringing the civil rights or undermining the judicial justice, such as illegal detention, confession by torture and illegal searches committed by the judicial personnel as well as investigating other major crimes that require direct acceptance by the SPP in accordance with the Criminal Procedure Law of P.R.C. The Sixth, Seventh and Eighth Procuratorial Departments are from the original Civil and Administrative Department which was divided into three departments. At present, the sixth is in charge of civil case, the seventh is for administrative case, and the eighth is responsible for litigation of public interest. The Ninth Procuratorial Department is responsible for handling those cases of juvenile delinquency and criminal cases against minors as well as carrying out the judicial protection of minors and preventing juvenile delinquency. The detailed work of such cases is the same as the First Procuratorial Department, such as approval of the arrest, prosecution, appeal, supervision and supplementary investigation, etc. The Tenth Procuratorial Department is responsible for receiving complaints submitted to the SPP and reviewing the decisions of criminal cases as well as handling those cases of state compensation and state judicial assistance under the jurisdiction of the SPP.

2.3.2 The Political Department and General Office Besides the aforementioned business departments, there are several departments for political work, such as the Political Department which is like the human resources in foreign countries, whose functions are responsible for the employment, promotion and training and so on, which is one of the largest departments of the SPP and has more than 60 people working there. Another large department is the Department of General Office, which is mainly responsible for reviewing and transferring the

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documents (文电), conference, confidentiality (机要), archives as well as assisting the leaders of the SPP to handle the procuratorial affairs; organizing and coordinating the deployment of important work and implementation of major decisions; drafting and reviewing the related documents and speeches; managing the secretarial practices, handling the procuratorial information and editing the internal publications. It is also responsible for the liaison work of representatives of the National People’s Congress and the special inspector as well as the supervision work of the affairs approved by the leaders of the SPP. In addition, it is responsible for directing, coordinating and managing the work of news publication and guidance of public opinion of the national procuratorates at all levels.

2.3.3 The Comprehensive Departments There are also some other comprehensive departments, such as the Research Department of Law Policy, the Office of Case Management, the Bureau of International Cooperation, the Bureau of Plan, Finance and Equipment, the Bureau of Retired Carders, the Bureau of Supervision on Procuratorial Business and the Party Committee of the SPP (机关党委). These departments are responsible for different affairs of the SPP, such as the Party Committee of the SPP, which is responsible for the work of mass and party members of the organs and other institutions directly under the SPP in Beijing; the Bureau of International Cooperation is responsible for: the foreign communication and cooperation of the people’s procuratorates at all levels in China and related international judicial assistance; being the liaison and provide assistance to all the procuratorates within Special Administrative Regions: Hong Kong and Macao; managing the investigation of foreign-related cases by the people’s procuratorates at all levels; the external coordination and management of the drafting, negotiation and signing of cooperation agreements or protocols between the Supreme People’s Procuratorate and foreign prosecution services.

2.4 The Aims of the Business Departments After the reform of the internal institutions of the SPP, there are ten business departments at present which are divided by different types of cases. The overall goal is to keep the four kinds of procuratorial work with balanced and coordinated development, especially under the guidance of the concept of system, we should develop them from the “one dominant” of criminal prosecution to the “four kinds of procuratorial work” in an all-round way,21 which is as follows.

21

Qiu (2021, p. 3).

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2.4.1 The Aims of the Criminal Procuratorial Departments The criminal prosecution work is the traditional one with the strongest personnel and best business experiences, whose aim is to make it excellent and the basic paths are to do it in the following six aspects.22

2.4.1.1

Promoting the Innovation and Development of the Supervision on Making Criminal Cases

Its concept is to establish a new idea of supervision on making criminal cases in the new era; that is to say, it should adhere to the idea of all winning supervision; adhere to the unified idea of supervision and handling cases and establish the idea of professional supervision. In the process of realizing the modern development of the national governance system and governance capabilities, it is necessary to give full play to the supporting role of big data technology to promote the work of supervision on case registration and its system of the procuratorial organs innovative and developed.

2.4.1.2

Improving the Quality and Effectiveness of Supervision on the Investigation Comprehensively

It is an important issue for the procuratorial organs to strengthen and improve the supervision on investigative activities and ensure the investigative power to be operated on the track of the rule of law. So, it is necessary to further expand the supervision channels, strengthen the supervision methods, improve the supervision ways and optimize the supervision modes.

2.4.1.3

Deepening the Reform of the Integrated Case Handling Mechanism

Such reform began in May 2018. The integration of arrest and prosecution is a reform of the procuratorial case-handling mechanism in China, which began in May 2018 and affected the reform of the internal institutions. From the practice, it has three advantages: (1) the greatest advantage of integrated with approving arrest and prosecution lies in improving the efficiency of handling cases by avoiding the duplication of labor and alleviating the contradiction of “many cases but few people” effectively; (2) it may follow-up the supervision throughout the whole process to enhance the function of procedural supervision effectively.23 The investigative organs in China do not have independent procedural functions, but together with the procuratorial 22 23

Xie and Chei (2020, p. 003). Ji and Liu (2006, p. 79).

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organs to constitute the party of prosecution to accuse the crimes. The prosecutors not only have the duty to review evidence, but also have the function to regulate and guide the investigative activities, and (3) it may strengthen the supervision effectively and improve the quality of legal supervision. Since the prosecutors have a complete grasp of the case from the beginning, it is beneficial for them to put forward the targeted proposals for the police to collect supplementary evidence. In court, they can fully prosecute the crimes because they know the facts of the case completely.

2.4.1.4

Applying the Lenient System of Accepting Confession and Punishment with the Suggestion System of Sentencing

The revised Criminal Procedure Law of P.R.C. in 2018 established the lenient system of accepting confession and punishment. So how to understand, apply and improve such system is an important issue both to the theoretical and to the practical circles. In 2019, in order to play the leading role of the prosecutor in this system, the SPP has been promoting the application of the system. From January to April 2019, the average application rate of the lenient system for plead guilty in criminal cases handled by the procuratorial organs nationwide was 27.33%; 40.1% from January to September. The average application rate of Chongqing, Tianjin, Jiangsu and other provinces has exceeded 70%.24 At present, the level of precision of sentence suggestions by the prosecutors is still not high, and the ability of sentence suggestions should be improved by perfecting the sentence regulations and guidance and applying the big data intelligent auxiliary system as well as strengthening the training programs.

2.4.1.5

Applying the Power of Non-prosecution Reasonably

The power of non-prosecution is an important part of the power of public prosecution, which plays an active role in strengthening the objective and just obligations of the prosecutors, protecting the innocent people from criminal prosecution and implementing the criminal policy of leniency and strictness as well as implementing the economical principles of litigation. However, in practice, there are still phenomena, such as dare not to use, unwilling to use, don’t know how to use and improperly apply the power of non-prosecution. Therefore, in theory, the unique value of the power of non-prosecution should be recognized, especially in handling those cases involving in private interprises, and the reasonable application of the power of nonprosecution should be promoted from various aspects, including: unwrapping the power of the reasonable application on it from the policy, providing the safeguard

24

The Supreme People’s Procuratorate Press Conference: The application rate of lenient System of Accepting Confession and Punishment Recommendation gradually increased, and the criminal policy of leniency and strictness was fully reflected. The Statistical data was provided by a Deputy Director of the SPP during the Press Conference.

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for such application from the power and organization and improving the construction of corresponding institutions and mechanisms for it.

2.4.1.6

Exercising the Reserved Investigative Powers of Duty Crimes Well

Although the investigative power reserved by the revised Criminal Procedure Law in October 2018 for the procuratorates is limited, it is of great significance to further optimize the allocation of case handling resources and improve the overall effectiveness of anti-corruption. So, it is necessary for the procuratorial organs to inherit those experiences with innovation and development in order to build an excellent investigative team.

2.4.2 The Aims of the Administrative Procuratorial Departments The aim of the administrative work is to make it solid. There are some proposals put forward by the Deputy Chief Director: (1) fully understanding the importance of the full development and coordination among the administrative prosecution, criminal prosecution, civil prosecution and the public interest litigation; (2) based on the statutory function of the supervision of administrative litigation, taking the institutional issues of administrative litigation as the reform outlet of administrative prosecution, and putting the administrative litigation in the construction of the rule of law; (3) taking the problems of weakness, absence, and lag as a broad stage for the development of the administrative procuratorial work, and considering the people’s trust in the road of safeguarding their rights in accordance with the law as an important driving force for the healthy development of it administrative procuratorial work; and (4) grasping the new pattern of the administrative procuratorial work, taking the supervision of administrative litigation as the cornerstone and resolving the administrative disputes as “bull noses” as well as extending the non-litigation supervision of enforcement.25

2.4.3 The Aims of the Civil Procuratorial Departments As to other three procuratorial work, we have to say, they are rather weak. So, the aim of the civil procuratorial work is to make it strong with several measures, such as the realization of preciseness, the comprehension and the transparency of civil supervision. Though there has been debate about the power of supervision on 25

Zhang (2019, p. 3).

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civil cases in China, a scholar holds that “starting from the nature of the procuratorial power, the legal supervision of China’s procuratorial organs should be comprehensive that involves in all aspects of social life, which of course includes the supervision of civil proceedings, so the power of prosecutorial work has the power of supervision, which can be regarded as the proper meaning of the procuratorial system in China.”26

2.4.4 The Aims of the Public Interest Litigation Departments The aim of the procuratorial work of the public interest litigation is to make it well, which includes the civil public interest litigation and the administrative public interest litigation; the latter is the key one. From a global perspective, the public interest litigation sued by the prosecutors is China’s original system. However, “the public interest lawsuit filed by the procuratorate reflects the people’s theory of sovereignty and the theory of the state’s active role, which further embodies requirements at the level of the Constitution and law.”27 The basic ways to realize such aim are as follows: first clarifying the litigation status and structure of the public interest litigation. Compared with the civil public interest lawsuits filed by the social organizations, the power of the procuratorial organs to sue such cases is limited and requires the announcement procedure to be performed first. The government’s lawsuit for environmental damages should take precedence over the public interest lawsuit filed by the procuratorial organ in order to display the advantages of the system of procuratorial public interest litigation. Then, after the reform of the internal institutions of the SPP in 2018, the local people’s procuratorates have to make corresponding reforms in their internal organizations in the following years and most of them have finished such reform by the end of 2019. Due to the difference of the provincial procuratorates and the local ones, the SPP made the decision that the name of the internal institutions of the provincial procuratorates should be consistent with that of the SPP, the local procuratorates can establish the internal institutions according to their own functions and business. So, some local procuratorates set up the department of drugs in Yunnan province since there is high drug activity, it is necessary for them to specialize in drug related criminal cases. Therefore, since the internal institutions are the basic carrier of the development and the procuratorial functions to run, they are also the organizational safeguard for the prosecutors to exercise their powers. Whether its setting is scientific and reasonable is directly related to the efficiency and effectiveness of the operation of the procuratorial power. With the continuously deepening the reform of judicial system, the comprehensive reform of supervision system in 2018 has put forward the higher requirements for the procuratorial organs. The change of the separation of approving arrest and prosecutions shifted to the integration of them inside the procuratorates 26 27

Zhang and Lu (2011, p. 113). Liu and Xu (2020, p. 60).

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also provided an important opportunity to the reform of internal institutions of the procuratorates. In a word, there were various factors which contributed to such reform in the people’s procuratorates in China since 2018. Actually, such reform is closely related to the changes in the functions and powers of the procuratorates in recent years. From the current practice, the reform of internal institutions of the procuratorial procuratorates in China can at least bring the following benefits: First, it can better implement the judicial accountability system. Generally speaking, the institutional reform is an inevitable choice for the professionalization of handling cases, which is in line with the situation of the reform of judicial accountability system; second, it is helpful to seize the opportunity of the significant adjustment of the functions of the procuratorial organs and to address the problem of unbalanced development of various functions of the procuratorial organs in the past, which may make the procuratorial work of public interest litigation, civil litigation and administrative litigation fully develop just like the procuratorial work of criminal cases; third, it is beneficial to give full play to the extensive procuratorial functions and promote the professional construction of the procuratorial organs in China so as to provide better procuratorial products with high quality for the people in a new era.

References 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 Ji Gang, Liu Jing (2006) Theory and practice of the reform for public prosecution. China Procuratorial Press Ji Meijun (2013) Comparative study on the system of prosecution service between China and Australia. Peking University Press Liu Fei, Xu Yongle (2020) The public prosecutor status of the procuratorial organs in the administrative public interest litigation and its institutional construction. Zhejiang Social Sciences (1) Ma Jiafu, Ji Meijun (2003) Framework design of mechanism of internal supervision and restriction in the procuratorates. Journal of National Prosecutors College (6) Qiu Chunyan (2021) In the new era, knowledge and practice of high quality for the procuratorial work’s development. Procuratorial Daily. March 6 Wang Zhiguo, Zhang Bojin (2017) The reform of the judicial responsibility system of the Supreme People’s Procuratorate officially started today! The Attorney-General explains the reforms for you. The Procuratorial Daily. June 12 Wang Guanghui (2019) The procuratorial team has been growing up with the reform and opening up. The Procuratorial Daily. January 14 Xie Pengcheng, Chen Lei C (2020) Procuratorial Jurisprudence: solving new problems and answering difficult issues concerning the “four types of procuratorial functions”. The Procuratorial Daily. January 6 Xie Pengcheng (2016) On the procuratorial rules. China Procuratorial Press Zhou Xin (2019) Overview on changes of the procuratorial system in 70 years in China and my expectations. Tribune of Political Science and Law (6) Xue Jiangwu (2019) Exploration on the Internal Institutions of the procuratorial organs. The People’s Procuratorial Semimonthly (5)

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Zhang Yanli, Lu Guoxiu (2011) Analysis on legitimacy of the civil procuratorial supervision theory and implementation mechanism in China. The Journal of China University of Political Science and Law (5) Zhang Xueqiao (2019) Adhering to justice for the people, making the administrative procuratorial work solid. The Procuratorial Daily. October 9 Zhen Zhen and others (2010) Comparative study on the procuratorial systems. Law Press

Chapter 3

The Functions and Powers of the Procuratorial Organs in China

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. The procuratorial power is an important part of the state power, which is composed of legislative power, the administrative power and the judicial power as exists in Western countries. But “in Western society, the procuratorial power is not a complete dichotomy between non-administrative and judicial, and the prosecutor or prosecutorial service system is not a unified role positioning, although in terms of service structure, it shows the difference of whether it is located in the judicial branch or the administrative branch of the government and other service system.”1 So, whether the procuratorial power is an administrative power or the judicial power depends on the specific stipulations of the national laws in each country.2 However, the functions and powers of the procuratorial service systems are normally exercised by the prosecutors, which is a common practice across the world. But, what specific powers a prosecutor can exercise in a country is closely related to the country’s parliamentary system, the judicial system and the historic tradition. Generally speaking, the prosecutors in Civil Law countries can exercise far more power than those prosecutors in Common Law countries. For example, most procuratorial service systems in Civil Law countries have the power of investigation and the power to direct the police to collect evidence. However, in Common Law countries, the office of pubic prosecution is usually regarded as a pure prosecution service, which only has the power of prosecution, for example the Crown Prosecution Service in England and Wales came into being in 1986 in order to increase public confidence

1 2

Gong (2018, p. 38). As to the discussion on the nature of procuratorial power, see Zhang (2019, p. 61).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 M. Ji, Brief Introduction to the Procuratorial System in China, Understanding China, https://doi.org/10.1007/978-981-16-8611-5_3

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in the system of justice, and “the scrutiny of the police prosecution decision by an independent legally trained mind was thought essential to improve the fairness and the efficiency of the criminal justice process.”3 In addition, even in those Common Law countries, each country has a number of differences in the functional allocation of the procuratorial service because of differences in its cultural traditions and geographical environment. However, each country usually defines the functions and powers of the procuratorial service clearly and specifically by its national laws. In China, due to the complexity of its origin and the uniqueness of historical development, the procuratorial organs enjoy a unique and extensive power, which can be collectively referred to as the power of legal supervision. These powers are stipulated by the Constitution, the Criminal Procedural Law and the Organic Law of the People’s Procuratorates of P.R.C., which includes the powers of procedural supervision, public prosecution, the public interest litigation, approving or deciding arrest, investigation and other powers endowed by the related laws. In this chapter, I’d like to discuss them in detail to ensure an understanding of the extensive powers Chinese prosecutors enjoy and what kind of functions the procuratorial organ in China should achieve as well as the obvious problems in operating these powers in practice and the improvement to those powers.

3.1 The Power of Procedural Supervision The procuratorial system in China is an important part of the socialist political and legal system, which is formed and developed in the country’s special cultural tradition and social environment. At the same time, it also has rich socialist connotation and many distinctive Chinese characteristics.4 These characteristics also determine the powers and functions of the procuratorial organs in China, that is, the basic contents of the procuratorial power. The comparison of the power of procedural supervision, not the power of legal supervision has been robustly argued among academics for several decades.5 However, in practice, the procuratorial organs do have such power regardless of the scholars’ description. So, I won’t narrate such argument here. Actually, the power of procedural supervision is an important power for the procuratorial organs in China. In 3

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 21st Century,” September 4, 2002. 4 As to the various characteristics of the procuratorial system in China, I have discussed them in Chap. 1. 5 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).

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accordance with the stipulations of the Constitution of P.R.C.in 1982 and the newly revised CPL in 2018, the power of procedural supervision refers to the supervision of the procuratorial organs on the public security organ’s investigation activities and the people’s court’s criminal trials, the death penalty review, the death penalty execution activities. This is the most distinct feature of the socialist procuratorial system in China and is also the most fundamental function of the present procuratorial organs in China. This power mainly includes four aspects: The first is the supervision on criminal case filing and investigation activities; the second is the supervision of trial activities; the third is the supervision of the results of adjudication; and the fourth is the supervision on the execution of penalty. These four aspects are litigation stage, all of which involve the correct application and enforcement of the law. In accordance with the provisions of the Constitution and related laws of China, the legal supervision of procuratorial organs in China includes the legal supervision on criminal proceedings together with civil and administrative proceedings. With such power of supervision undertaken during the process of proceedings, in this paper, I call it the power of procedural supervision, which is an important context of the legal supervision for the procuratorial system in China and also one of the fundamental functions of the system.6 This chapter develops how to apply such power in the criminal, civil and administrative cases respectively.7 In accordance with the relevant laws, the power of procedural supervision of the procuratorial organs in China include the supervision on criminal, civil and administrative cases, among them, the supervision on criminal procedure is the most developed and complete one. So, I’d like to focus on the supervision of criminal procedure in the following aspects.

3.1.1 The Power of Supervision on Criminal Proceedings The Constitution of China stipulates that the people’s procuratorate is a special state system of legal supervision. The Article 8 of the newly revised Criminal Procedure Law in 2018 provides that the people’s procuratorates shall exercise the legal supervision of criminal proceedings in accordance with the law, which is an important principle established by the CPL of China. The system of legal supervision of the procuratorial system, the supervision on criminal proceedings occupies an important legal position, providing for the emergence of the procuratorial system in China. 6

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. 7 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.

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The judicial practice in China requires to ensure the smooth progress of criminal proceedings and the realization of fairness and justice when carrying out the legal supervision on criminal proceedings by the procuratorial organs in accordance with the law.8 The legal supervision of criminal proceedings of the people’s procuratorates includes the supervision on the activities of the public security organs, the state security organs, the people’s courts, prisons, detention houses and organs for labor reform. From the perspective of litigation, it runs through the whole period of criminal procedure, including the supervision of case preparation, the supervision of investigation activities, the supervision of adjudication and the supervision on the fulfillment of punishment.

3.1.1.1

Supervision on Filing a Case

In China, an independent litigation stage in the criminal procedure is to receive and file a complaint from which flows criminal investigation, reviewing (preliminary investigation) and deciding whether to file a criminal case or not. The supervision system of filing a case by the procuratorial organ was first clearly stipulated when the CPL was revised in 1996. The supervision on making a case is “another independent procuratorial supervision function stipulated by law after the investigation supervision, trial supervision and execution supervision in our country, which fills the gap of the previous procuratorial organ’s supervision of the criminal stage of filing a case, whose aims is to strengthen the procuratorial organ’s supervision of the case filing by the public security organs and solve the actual situation in which some public security organs in practice should file the case but not file the case, and the masses have no way to sue.”9 In accordance with the stipulations of Article 109 of the new CPL in 2018, a public security organ or a people’s procuratorate shall file a case for investigation in accordance with the scope of its jurisdiction for the discovery of criminal facts and the identification of potential suspects. From the legislative point of view, the prerequisite for filing a case is to find the facts of the crime and identify a potential suspect. Investigation may provide material facts, preparing a report, reporting, accusing and self-surrender or for the private prosecution. Therefore, some scholars have expressed the concept of making a case as follows: “In the criminal procedure, making a case refers to a procedural activity that the public security organ or the people’s procuratorate discovers the facts of the crime or the criminal suspect, or the public security organ, the people’s procuratorate and the people’s court, after examining the materials of reporting, accusing, reporting and self-surrendering as well as the materials for private prosecution, in accordance with their respective jurisdictions, decide to conduct the investigation or trial as a criminal case.”9 It can

8 9

See Sun (2004, pp.163~164). Sun (2019, p.4).9 Chen (2000, p. 94).

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be seen that making a case is a specific activity of the statutory organ, which is the start of the legal procedure and a necessary step in the criminal proceedings. The protection of a citizens’ personal, democratic, property right and other legal rights is achieved by preventing unfair or unjust enforcement, even if a case can be made against an accused. If a crime has been committed, it should be correctly prosecuted to avoid a wrongful criminal conviction. The Article 87 of the CPL, as amended in 1996, stipulates that the procuratorial organ has the power to supervise the filing of a case, “If the people’s procuratorate considers that a public security organ should file a case for investigation but it doesn’t do, or if the victim considers that the public security organ should file a case for investigation but it doesn’t do and puts it forward to the people’s procuratorate, the people’s procuratorate shall require the public security organ to state the reasons for not filing the case. If the people’s procuratorate considers that the public security organ can’t establish the reason for not filing the case, it shall notify the public security organ to file the case and the public security organ shall file the case after receiving the notification.” Whereas both the revised CPL in March 2012 in Article 111 and the newly revised CPL in 2018, the Article 113 makes the same provision about the supervision on filing a case. Therefore, it can be considered that the supervision on filing a case refers to the legal supervision that the procuratorial organs carry out on the subject of filing, who should file a case. This should be undertaken whether the activities of filing a case are legal or not. It is an important part of the procuratorial organ’s power of procedural supervision. Obviously, the power of supervision on making/filing a case requires that the public security organs carry out the decision made by the procuratorial organs requesting to file the case. However, because the scope, procedure, means and consequence of the procuratorial organ’s power to exercise the supervision on filing a case are not clearly defined in the legislation, this “inherent deficiency” has led to many difficulties and problems in the specific exercise of the supervision on filing a case in practice.10 Since such difficulties and problems are similar to that of the supervision of the investigation. I’ll discuss these difficulties and provide suggestions after narrating the power of supervision on investigative activities, whose object is the investigation organ.

3.1.1.2

Supervision on Investigation Activities

The supervision on investigation activities refers to the special legal supervision carried out by the people’s procuratorate on the legality of the investigation activities of the public security organs and other investigative organs, which is one of the important contents of the legal supervision functions of the people’s procuratorates. Since “in the criminal procedure, the investigation link is crucial for collecting evidence and accusing crimes, which is the meeting point of the contradiction between the

10

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

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state power and civil rights, combating crime and protecting human rights.”11 So, such supervision is of great significance for timely discovering and correcting those illegal conducts happening during the investigation activities, protecting the legitimate rights and interests of the concerned parties, safeguarding the human rights and punishing the crimes correctly and in a timely manner. This ensures prompting the investigators to implement the laws strictly. In particular, the investigation supervision includes the supervision on investigation activities of the investigation organs and the legality of any coercive measures taken by them. At present, there are three tasks of legislative measures to supervise the investigation activities. The first is to review and approve the time of extended detention. In accordance with the stipulations of Article 95, Article 156 and Article 158 of the Revised CPL in 2018, the procuratorial organs have the power to review the necessity of the detention after the suspects are arrested or approve to extend one or two months of detention of the suspects after approving the arrest and the public security organ can’t terminate the investigation before two months in accordance with the specific circumstances of the case. In detail, if the case is complicated and investigation cannot be terminated before the deadline, it may be extended for one month with the approval of the upper people’s procuratorate. With the approval of the decision of the people’s procuratorates of the provinces, autonomous regions and municipalities directly under the central government, the cases can’t be terminated in accordance with the stipulations of the Article 156 may be extended for two months as follows: (1) (2) (3) (4)

Major complex cases in remote areas where transportation is extremely inconvenient; Major criminal group cases; Major complex cases in which mobile crime is committed; Major complex cases involving a wide range of areas where evidence is difficult to obtain.

The second task is to supervise the activities of the accused suspects and defendants in the detention house, which is in two aspects: One is to supervise whether the detention of the suspects and defendants is legal or not; the other is to supervise whether the supervising activities of the supervisors in the detention house are legal or not. It is of great significance for the people’s procuratorates to supervise the activities of accused suspects and defendants in detention house in accordance with the law in order to protect the citizens from illegal detention and to safeguard the lawful rights of the detained suspects and defendants. The third task is to supervise whether the conducts of the investigation activities are legal or not. Generally speaking, during the investigation, the illegal conducts that the investigators commit are as follows: (1) (2) (3) 11

to obtain confessions by torture; to obtain witness testimony by deception, and threats; to protect or set free the criminals by gaining personal favors;

Sun (2019, pp. 3–4).

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(4)

69

to misuse their duty to obtain illegal benefits during the investigation.

Actually, it is not easy for the procuratorial service to supervise the investigation activities and to find out those illegal conducts since the investigations of criminal cases are kept secret which is a common feature of the criminal investigations all over the world. However, in practice, through several years of empirical research, we have found out the main difficulties and problems existing in the supervision on making a case and investigation activities and tried to put forward the related feasible suggestions,12 which are as follows: (1)

Legislative provisions are not followed, or absent, the effect of supervision on making cases is not satisfactory

Although in the state power structure of China, the procuratorial organs are positioned as the judicial authority and clearly defined as the state’s organ of legal supervision. Indifference to procedural methods has arising even though Article 113 of the new Criminal Procedure Law endows the procuratorial organs with the power to supervise making a case, it does not include a liability clause that requires legal consequences for police inaction after receiving the prosecutors’ directions, nor does it absorb the academic research of identifying the need for further modification and improvement. So, some scholar thinks that “in recent years, the problems of excessively narrow supervision scope and insufficient supervision methods faced by the procuratorial organs have existed. The system of arrest supervision after detention needs to be further improved. The problem of intervention investigation at different levels has still not been resolved.”13 Identified from the current situation, there are still problems such as imperfect legal provisions, the provisions are too general with poor operability. The Article 113 of CPL stipulates the power of the procuratorial organs to supervise the making cases of the public security organ, and if the people’s procuratorate considers that the reasons for failing to make a case cannot be established, it shall notify the public security organ to make the case and invesigate it, the public security organ shall make the case upon receipt of the notification. However, if the public security organ still doesn’t make the case, there is no consequence for them to bear. Such a situation cannot meet the actual needs of supervision on making cases, which affects the supervision of a criminal case. At the same time, because the law does not further stipulate the legal consequences that public security organs need to bear if they do not make a case after receiving a notice from the procuratorial organs that they should do so, the supervision 12

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. 13 Gao (2018, p. 33).

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loses compulsory power and the effect is greatly reduced. As a result, in practice, if the public security organ includes an index of compliance with the prosecution suggestions in its annual performance evaluation, the effect of supervision of the procuratorates will be much better; otherwise, it will be unsatisfactory. In other words, it is the public security organ’s own evaluation criteria that directly determines the supervision effect of the procuratorates, which is a common problem learned in the field study in 2019 while we carried out the research project co-operated with the Danish Institute for Human Rights. (2)

Poor information sharing mechanism, lack of power to be informed, limited sources of information

Although the procuratorial organ has the power to supervise the situation of making a case and investigation activities of the investigation organs, however, the law does not clearly stipulate the specific procedures and methods of supervision, nor does it give the procuratorial organ the power to determine such situations in practice, the procuratorial organ cannot access information on the criminal case registration and discover the problems timely precisely and comprehensively. Even if it actively “seeks rice for cooking”—looks for clues, it often feels helpless and the result is poor. At present, the procuratorial organs can only find problems through procedural channels as approval of arrest, examination for prosecution, complaint by the parties and referral by relevant departments, which are quite accidental and lagging. In addition, since the procuratorial organ is not aware of the activities of making cases by the investigation organ in advance, even the procuratorial organ believes that the case should be filed according to information provided by the victim or the evidence collected by itself, the investigation organ will usually remedy this by preparing a predated case registration document after receiving the “notice requiring explanation of reasons for not making the case” from the procuratorial organ, so as to cope with and evade the supervision of the procuratorial organ. Since the legislation does not stipulate that the supervisors have the knowledge, it is unrealistic to expect the police to voluntarily report their problems. The inevitable result is the lack of information on making cases, and many cases suspected of dismissal in violation of law fail to be received by the supervision of the procuratorial organ, which causes a lack of initiative by the procuratorial organ. Case information evidence is the resource to start supervision. However, in practice, the procuratorial organs lack the chance to access case registration and investigation information. While conducting the investigation supervision, they often cannot find evidence of supervision. The direct consequence is that there are not many supervised cases. This not only affects the enthusiasm of personnel engaged in investigation supervision, but also affects the supervision effect. For example, the Chengguan District Prosecution Service of Lhasa currently has 71 established posts and a total staff of 110 people, including 76 regular officers and 8 internal departments. It is the procuratorial organ with the largest number of cases in Tibet, with 349 arrest approvals involving 463 people in 2018. There are also 410 cases of prosecution involving 477 people. The procuratorate has achieved excellent work in all aspects,

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it has won the honor of “the national advanced local procuratorate” and the “national procuratorial culture demonstration procuratorate.”14 However, since January 2018, there is only one case of supervision on making cases. It was a dangerous driving case, in which the investigators altered and scraped the evidence in handling the case. The procuratorate issued a notice to correct the illegal situation and handed over evidence of illegal activities to the discipline inspection department. In adjudication supervision, there is also only one case involving one person. It was a traffic accident case. Due to improper application of laws, the sentence was extremely light. The prosecutor appealed the case and the court revoked the original judgment. It can be seen that even in an advanced local procuratorate, it is difficult to carry out legal supervision, resulting in very few such cases reviewed. This phenomenon is very different from the current state of judicial justice experienced by ordinary people. (3)

The supervisory methods are monotonous and the measures of supervision are weak

Since the legislation does not make the necessary provisions on the means and legal consequences of supervision on making cases, in practice, the procuratorates cannot take measures outside the legal provisions; thus, the available supervision means and measures are very limited. Like the stipulations of Article 113 above mentioned, “If the people’s procuratorate considers that the public security organ should make a case but fails to do so … the people’s procuratorate shall request the public security organ to explain the reasons. If the people’s procuratorate considers that the reason cannot be justified, it shall notify the public security organ to make a case. The public security organ shall make a case after receiving the notice.“ What if the public security organ fails to make the case after receiving the notice? Obviously, this provision lacks the element of legal consequences and only gives the procuratorial organ the power to inquire about the reasons for failure to make a case and notify the public security organ to correct its oversight. There is no further provision on what to do if the investigation organ refuses to explain the reasons and to implement the notice to make a case, or what to do if the police does rectify by making the case but refuses to investigate the case or delays the investigation? The lack of sanctions renders supervision non-coercive and non-binding, which is bound to affect the efficiency and authority of the supervision. The recommendations and suggestions to solve these problems will be discussed later in this paper. In practice, the phenomenon that the public security organ fails to make the case within the statutory time limit or does not make the case at all. Sometimes, the public security organ refuses to actively investigate some cases or even put them aside after reluctantly accepting the supervision suggestion of the procuratorial organ, and some remain unsettled for a long time. Just like supervision on making cases, the procuratorial organs also have limited means of supervision on the illegal acts of the investigation organs in evidence collection. Usually, there are only two ways of supervision: issuing a notice of violation 14

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.

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or procuratorial suggestions. If the violation is not too serious, only oral correction is proposed. Since the notice to correct the violation does not affect the performance evaluation results of the public security organs, the supervision effect is not ideal. For example, a prosecutor from Chengdu People’s Procuratorate put forward rectification opinions on procedural violations such as mistakes of pressing fingerprints, however, “it will still happen again, which is a repeated and repeated problem, as a result of weak supervision”. When it comes to investigation supervision, the prosecutor of Kunming city procuratorate stressed the importance of the prosecutor’s personal involvement in investigation. For example, in a case of intentional injury, the investigators said that KTV video recordings were erased and no evidence could be found. But this evidence was important in determining whether there was self-surrendering. Alternatively, the prosecutor could, after communicating with the relevant staff, made a trip by himself and found the evidence. This example illustrates that investigators may not try their best to collect the relevant evidence for various reasons. The prosecutors need to use greater application to discover relevant evidence when preparing the case for prosecution. This is necessary for trial-centered reform to occur. To sum up, the difficulties encountered by the procuratorial organs in investigation supervision occurs due to the unspecific legal provisions and the lack of directed supervision procedure. This leads to problems such as failure to timely identify cases for supervision due to the limited means of supervision and poor supervision. Alternatives and countermeasures will be addressed in the following paragraph. (4)

Lack of qualified and experienced prosecutors to do the supervision work

After implementing the integration work mechanism of approving arrest and prosecution, the same prosecutor undertakes the approving arrest and prosecution. The increased number of cases reduces the time the prosecutors have to undertake supervision. From the discussion with the prosecutors who attended the seminar in Taiyuan City, Shanxi province and the information gained of their papers, some local procuratorates remarked that the data of “two aspects of supervision” have declined this year. The following chart shows such data from Qinzhou City Procuratorate from 2018 to June, 2019. In Qinzhou City, Guanxi Province, there are four local procuratorates. According to the statistics, the work of supervision is as follows: Prosecution work type

2018 Number of cases handled

Year-on-year change (%)

From January to June, 2019 Number of cases handled

Year-on-year change (%)

Supervision of making criminal cases

56

12

9

−69.0

Rectify missed arrests

78

9.9

32

−25.6

Rectify missed prosecutions

118

0

35

−5.4 (continued)

3.1 The Power of Procedural Supervision

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(continued) Prosecution work type

2018 Number of cases handled

Rectify illegal acts 48 in writing

From January to June, 2019 Year-on-year change (%)

Number of cases handled

Year-on-year change (%)

4.3

17

−45.2

Although according with the relevant laws and regulations, the procuratorial organ in China is a specific organ of legal supervision, this supervision is one of the most important functions and powers of the procuratorial organs. Some scholars even believe the functions and powers of the procuratorial organ can be summarized as supervision. However, in practice, due to various factors, the local prosecutors have encountered difficulties in exercising such power. Many problems were identified from the empirical field study. Alternatively, there are also new problems emerging during the procuratorial reform. So, in order to improve the supervision of investigation, the following suggestions are made: (1)

Amending the legislation to give the prosecutors the power to case information

The power to know is the premise and basis for the effective operation of case supervision. The power of supervision is in three parts: the power to know, the power to inquiry and the power to correct. However, at present, the law only provides the power of inquiry and correction, that is, the power of inquiry to issue a notification of the reason for not making the case and the power of correction to notify the public security organ that the reason for their inability to establish the case inadequately. The power to know is not explicitly stipulated. The procuratorial organ is given the power to obtain the information for making cases. The procuratorial organ has to be provided with adequate evidence to assess criminal cases filed by the public security organ. With the full evidence, the prosecutors are able to identify any shortcomings. (2)

Carrying out the supervision within the scope the legislation actively.

As defined, it is very difficult to amend the legislation on the supervision of investigation, so within the legislation, the prosecutors still need to actively carry out the relevant supervision. There is an old Chinese saying: whether the thing is well done or not, it depends on different persons. Although the legislation and stipulations are the same in China, some local procuratorates have performed well, for example Xishan District Procuratorate, Kunming City, Yunnan province. To illustrate their performance, a case study will be provided at the end of this chapter. According to the Rules of CPL of the People’s Procuratoate, the scope of the current filing supervision of the procuratorial organs is as follows: A. B.

the case where the public security organ should file the case for investigation but fails to make the case; the administrative law enforcement agencies should transfer the suspected crime but fail to do so,

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C.

the case that should not be filed for investigation because of its incomplete investigation; the case that failed to complete the investigation on time (in three months) after the case was filed.

D.

These four aspects are the entire procedure of supervision for making criminal cases. When making criminal cases, if the supervision is adequate and conducted in a timely manner, then the justice of law enforcement can be guaranteed. (3)

Improving the complaint handling mechanism and making the supervision on investigation more popular

Rethinking the various predicaments in the supervision of investigation of the procuratorial organs, such as the lack of original source of the case, single means, weak effects as well as the implementation of the integrated work mechanism of approving arrest and prosecution, staff shortages have resulted in a decline in supervision on investigation. Valuable experiences can be learned from the Danish practice, which establishes a special department to receive the complaints involving the police’s improper or illegal conducts. This can solve the problem at the source of supervision on investigation, which keeps the law enforcement actions of public security organs under the supervision of citizens. The establishment of a special office under the Department of Complains and Appeal of the procuratorates will greatly assist in solving supervision issues.

3.1.1.3

The Supervision on Trials

For many years, the supervision on judicial activities by the procuratorial organs has been controversial in an academic circle. However, the problem being both an athlete and a referee cannot be solved overnight. In accordance with the related laws, the power of supervision of trials means that the people’s procuratorate believes that the people’s court’s, for effective judgments and rulings in criminal, civil and administrative litigation must ensure fair judgments, including clear determination of facts, proper application of law, correct procedures, honest judges and other circumstances; otherwise, an appeal to the superior people’s court for retrial of the case will be necessary. Researchers identified the issue of supervision on criminal trial, particularly in the case of wrong decisions, which needed to be brought to the public’s attention. “The procuratorial organs’ power of supervision on criminal trial refers to the power of procuratorial organs have to conduct the special supervision over the court’s criminal trial procedures and verdicts to ensure they are legal and correct in accordance with their statutory powers and procedures.”15 However, in recent years, the supervision of civil and administrative trials has also attracted increasing attention from the procuratorates, especially after the reform of internal institutions of the procuratorial organs, the civil procuratorial and the administrative procuratorial are juxtaposed with the criminal prosecution, adding the public interest litigation, which is named four kinds of procuratorial functions 15

Yang (2016, part 1).

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and ten business department (四大检察十大业务) inside the procuratorial service at present. Therefore, the supervision needed in civil and administrative trials has become increasingly apparent. Actually, among those cases tried by all courts across the country, the criminal cases are only a small percentage of them.16 But from the perspective of practice, it is necessary for some organ to supervise the judgment of the courts since presumably some wrong convictions still occur. In China, because the procuratorial organ is a specific state organ of legal supervision, the supervision of trials is an important part of the power of legal supervision organs. However, the following survey done in several provinces in 2018, on work of supervision is as follows: At present, in practice, the most important way for the procuratorial organs to supervise the court is via appeal. However, there are some obvious problems: One is that the sources of criminal cases eligible for supervision are limited. The second is that after the case is concluded, the judicial service will first send a judgment to the procuratorial organs and then to the accused. When the accused files an application for appeal, the procuratorial organs can no longer appeal due to the expiration of the statutory time limit for appeal. This prevents further case supervision. The third is that the court’s revision rate is too low. Such situation has been reflected by the two prosecutors of the People’s Procuratorate of Kunming City in the forum for an empirical field study. Alternatively, there are some examples where the supervision on adjudication by the prosecutors are expanded. For example, the number of cases appealed by Chengdu Procuratorial Organ has continued to grow in recent years, which is accordingly 117 criminal cases for appeal were lodged by Chengdu Procuratorial Organ in 2016, 127 in 2017 and 133 in 2018, totaling 437 cases, which accounts for 7. 4‰ of court cases in the same period. The increase is even more significant if we include 2015, in which there were 95. At the same time, the adoption rate of appeal opinions remains at a high level. In 2016, 70 appeal cases were concluded. Of these, the court revised judgments or remanded the case for retrial in 58 cases, with the adoption rate of appeal opinions being 82. 8%. In 2017, a total of 89 appeal cases were concluded, of which 74 were revised or remanded, with the adoption rate of appeal opinions being 83. 1%. In 2018, 102 appeal cases were concluded, of which 82 were revised or remanded, with the adoption rate of appeal opinions being 80. 4%. In addition, the type of case and methods of supervision shows a diversifying trend. In the appeal cases submitted in 2018, the appeal contents mainly involve the determination of facts, sentencing circumstances and crimes determined. Disposal of property has involved, 16

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.

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serious violation of procedures and other issues. This reflects the philosophy of “comprehensive review” and “targeted review” of judgments. Besides using “the procuratorial appeal,” the procuratorial organs have also adopted other ways and means to supervise the judicial activities, such as “notice to correct violations” and “procuratorial proposal,” thus diversifying supervision methods and levels. In 2018, 163 notices were served on the court to correct violations of the law. The contents not only included procedural matters, but included failure to close the case or service documents within the statutory periods. Substantive matters such as incorrect calculation of prison terms and incorrect citation of legal provisions were identified. The procuratorial appeals of such matters are not mandatory and therefore were not corrected by the court. In addition, in our survey in Western Regions in China, several prosecutors identified a substantial increase in false litigation, which requires prosecution supervision. A prominent feature of false litigation is that the two parties collude, resulting in the court making an incorrect judgment. This kind of conducts not only damages the legitimate powers and interests of the third party, but also wastes valuable judicial resources. The high incidence of false litigation has gradually attracted attention from the academic and judicial circles. The revised Civil Procedure Law in 2012 seeks to remove cases of false litigation by adding the principle of good faith. The third party may as a consequence apply for dismissal of the case, thus expanding the need for supervision. It can be said that the supervision by the procuratorial organs is an appeal mechanism used by third parties in cases of false litigation. However, based on our many years of research on the adjudication supervision and the findings from field study in 2019, it has been found that false litigation has existed for many years to the present. The procuratorial organ has a responsibility to undertake supervision of such cases. These dilemmas are as follows: (1)

Unspecific Legal Provisions Affect Supervision Effect

At present, China’s laws and regulations endow the procuratorial organs with few supervision measures in criminal trials. The regulations are unclear and imperfect, resulting in insufficient supervision and ineffective results. According to relevant laws and regulations, the means of criminal adjudication supervision include not only appeal, but also oral supervision, notice to correct violations and procuratorial suggestions. On the surface, the procuratorial organ has been given the legal power to supervise criminal trials; however, in practice, this is not always the case. Nonappeal supervision means lack of a clear legal basis and have no legal effect of directly initiating the second instance or extraordinary correction procedure. Once the judge ignores the suggestion and refuses to correct the errors, the procuratorial organ has no way to enforce the supervision, which affects the effect of adjudication supervision. (2)

Impact of the trial method reform

With the advancement of the trial-centered reform, the criminal judicial standards have gradually unified and a multi-level criminal justice system comprising a fasttrack procedure. Summary procedure and ordinary procedure for criminal cases has been established. With the advancement of the reform of the lenient system and

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the standardization of sentencing, the quality of criminal adjudication has also been continuously improved. This has had a profound impact on the criminal adjudication supervision of the procuratorial organs. To a certain extent, the eligible cases for criminal appeal are reduced, making the supervision of criminal trials more difficult. On the other hand, the judicial organs are also more cautious about criminal appeal cases. The trial-centered reform requires the court hearing to be substantive. The rules on direct verbal evidence and exclusion of illegal evidence greatly increase the difficulty of the procuratorate’s appeal, and the revision rate is relatively low. The use of Continuing Professional Development (CPD): The competence of the judges is gradually being improved, their awareness of risk and responsibility is continuously being strengthened, the probability of making mistakes in judging cases is reduced, and the judgments made are more rigorous. Therefore, it is less and less necessary for the procuratorial organs to lodge an appeal. Moreover, due to the target-based performance evaluation and other reasons, the courts are cautious in order to maintain the authority of the first instance judgment. By maintaining the original judgment as far as possible, the substantive change in sentence has not occurred though adopting the procuratorial opinions. As such there is less procuratorial appeal. (3)

Prosecutors Lack Competence

Under the restraint of the deadlines and staff shortage, the prosecutors tend to prioritize review for prosecution. Prosecutors appear to be unaware of their own supervision functions, and accordingly, they tend to neglect the supervision of trials. In addition, the prosecutor’s inability to evaluate evidence and court decisions also hinder the improvement of the appeal process. Measures such as requesting the court to correct illegal acts and adopt procuratorial advice are not used effectively as corrections are not mandatory. The supervision effect has thus not really been achieved. As to the supervision of adjudication phrase, objectively speaking, it is much more difficult than the supervision of investigation. With the reform of trialcentralization, the qualifications of judges are getting higher and higher, resulting in fewer and fewer wrongful convictions. So, how to improve the quality of supervision on adjudication phrase, a survey in several procuratorates has resulted in as follows: A.

Changing the idea of supervision

Though the supervision on adjudication phrase is one of the most important powers of the procuratorial organs in China, the prosecutors have to change the idea that the case of supervision is not the more, the better, however, to some extent, just the opposite. If there is no wrongful conviction to be supervised, it shows the knowledge of judges is very high and the accused can receive justice in criminal cases. That’s to say, it is a good result for the common people and reflects well for society. B.

Improving the level of prosecutor’s supervision

Since the knowledge of judges is getting richer in this new era, the professional level of prosecutors needs to improve to identify any loopholes in supervision. Any

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improved quality of prosecutors results in better supervision. This is not the case in all procuratorates. So the present Attorney General Zhang Jun of the SPP announced there needed to be an emphasis on self-improvement and professional development. C.

Expanding the scope of trial supervision

The criminal cases only account for a small portion of all cases going to court. Consequently, prosecutors can change the key supervision to the civil cases. In civil trials, the judges may make unfair judgments at times. Therefore, the prosecutors should enlarge the scope of the supervision on adjudication phrase of civil cases, especially the implementation of civil cases. In the process of implementation, judges are the most prone to corruption. This is also a phenomenon discovered by the Shanxi group of the Third Central Supervising Group who visited 11 cities and 117 counties of Shanxi Province during the first batch of education and rectification work of the political and legal team which was just finished by the end of June, 2021.

3.1.1.4

Supervision on the Execution of Penalty

The execution of penalty is important legally as it is the final procedure in the process of realizing the penalty’s functions. It is an indispensable part of the criminal law to exert its deterrent power. The proper execution of penalty directly affects the function of penalty and the protection of the human rights of offenders. The supervision of the awarded penalty is an important part of the procuratorial organs’ power of legal supervision. The fundamental role is to ensure the legality, rationality, efficiency of the judgment while safeguarding the human legitimate powers of the criminals. The supervision on penalty, the supervision on investigation and trial constitute the basic framework of the criminal procedural supervision of the procuratorial organs. It is fundamental to ensure the ultimate realization of the purpose of the criminal procedure. The supervision on penalty is mainly the supervision on the activities of the prisons. Such supervision is really important to ensure the safeguard of human rights of the prisoners. Research on this topic has found there are many problems in the supervision of penalty in China, such as less supervision means, weak supervision measures and inattentive supervision procedure. Some scholars have emphasized how to strengthen the discovery, investigation and punishment of malfeasance in prisons, and how the procuratorates can effectively participate in the commutation and parole ruling procedures by playing the role of legal supervision organs.17 Not enough attention has been paid to the daily supervision of prisons

17

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.

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activities.18 In fact, whether the criminals are treated humanely and their human rights are guaranteed are all identified in the daily activities of the prison. It can be said that the daily supervising activities in prisons should be the main content of the supervision of penalties. (1)

Two Ways for the Procuratorial Organs to Supervise the Fulfillment of Penalty in Prison

In China, there are two main ways for the procuratorial organs to supervise the fulfillment of penalty in prison: A.

B.

Routine supervision work: It is mainly to set up a procuratorial offices or a dispatched procuratorate in the prisons and detention houses to conduct onsite direct supervision of law enforcement activities in these places. The advantages of this form of supervision are obvious, as all types of violations of the law and discipline in the prison can be detected immediately. As the procuratorial personnel and prison supervisors are in constant contact, there can be a degree of “assimilation” occurring which may result in the quality of supervision being compromised. The implementation of special procuratorial activities is now timely.

That is to say, the procuratorial personnel should concentrate their time and strength on the special procuratorial supervision of the law enforcement activities of the penalty enforcement organs For example, in 2003, there were special reviews to examine and correct prolonged detention throughout China. But this kind of special is something like a hurricane with fierce momentum, which occurs quickly and is excessive, the expected supervision outcome is not realized. As mentioned previously, the importance of supervision on the penalty is necessary to realize the function of the state’s power. However, in China, due to the defects in the system design, the imperfect legislative provisions and the various reasons on the operational level, at present in practice, there are indeed many problems in the supervision on penalty served, resulting from weak supervision methods, measures and the loose supervision procedures. As such these lead to several obvious results, the human rights of the criminals cannot be guaranteed properly, and the effect of penalty served is not satisfactory. Some scholars have advised there need to be emphasis on how to strengthen the discovery, investigation and punishment of malfeasance in prisons and how to effectively participate in the determination process of commutation and parole in order to achieve legal service supervision.19 Daily supervision activities of prison do seem to be important. By examining the British legal system, it shows how to effectively supervise the operation of prisons and the supervision of penalties. By undertaking a review of British prison system, it may broaden the thinking and vision of reform in the penalty served and may identify the training and level of supervision needed for

18 19

Li (2003, p. 569). Li (2003, p. 569).

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penalty execution in China. The supervision on the daily activities in prison may be improved by using a British model. In Britain, Mike Newell who had been the Prison Director for 31 years till 2006,20 implemented daily supervision activities in prison in England and Wales. These included humanitarian management of criminals, the individualized plan of prison sentencing and help programs to emphasis the human rights protection of the criminals. (2)

Advice to improve the quality of supervision on penalty

In order to make the operation of high-input and low-output prisons more effective and in line with the requirements of modern civilization, British prisons have external supervision of five major institutions in addition to their own regular examination of various indicators. Although these institutions do not appear to have any enforcing powers, with the strong power of the media and public opinion, the prison director will consciously accept the recommendations of any external oversight body for the improvement of prison management, operation and treatment of the criminals. The valuable experiences gained from England, my advice is as follows: A.

Establishing a committee of supervision within the procuratorial organs

Although the law of China stipulates the supervision function of the procuratorial organ to the prison, it lacks the concrete operational procedure, which makes it difficult for the procuratorial organs to detect any violations of law, discipline and infringement of the human rights in prisons and without written and enforced procedures these cannot be improved. Within the existing law framework, the procuratorial organs may consider developing innovative ways of supervision, for example, to establish a committee of supervision within the procuratorial organs, whose members, in addition to the staff of the procuratorial organs, can also follow the practice of the people’s supervisors,21 by employing trained people from all sectors of the society who are willing to engage in the penalty supervision. They may be entrusted with certain powers in playing their functions, such as visiting the prisons at any time, chatting and communicating with criminals at their will, then to write a report of what they have seen or heard, publish from the Internet, and at the same time, they may submit their reports to the local authorities, the Minister of Justice, the Attorney General of the SPP and even to the Standing Committee of the National People’s Congress. Although such supervision is not legally mandatory, its effectiveness would be considerable due to its high transparency, wide dissemination and impact of such information. B.

Establishing an independent supervision bureau of prisons

This bureau should be established to complement the above committee of supervision, such as Her Majesty’s Inspectorate of Prisons and the Independent Monitoring

20 21

Mike (2006, lecture). As to the system of the people’s supervisors, you may see Chen (2019, pp. 3–16).

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Board in England and Wales, both operate in very different ways. The latter supervises the prisons through regular visits, “One of these boards exists in every prison and consists of between 12 and 20 lay independent people from the community. They bring diverse skills and backgrounds covering business, public and voluntary sector and some magistrates. They are unpaid and fiercely value their independence. They monitor the prison on a daily basis with at least one member visiting each day,”22 while the former detects problems in prisons through planned unannounced inspections. “The inspection process provides this holistic perspective on the operation of a prison, effectively it is an assessment of not just what a prison is doing but how it is carrying out its responsibilities. There is no doubt that governors see the test presented by the inspection team as the ultimate achievement, a good report is an accolade and endorsement of how the prison is run.”23 Therefore, through the ability of prison supervisors to assess the situation of the prison in Britain, this type of supervision of the prison operation is no less effective than would special procuratorial activities be in China. It may be considered unfair to the Prison Director to assess the prison condition on the basis from what has been observed during these periodic visits. The daily supervision of a prison can withstand announced inspections, it shows that the normal work of the prison is done correctly and in an orderly manner and the Prison Director is being satisfied with such reports. So, in my opinion, in addition to the establishment of a committee of supervision within the procuratorial organs, together with the establishment of an independent supervision bureau of prisons is needed. The supervision bureau’s working methods will mainly be planned inspection, supplemented by unannounced inspection. Inspectors should have management and health qualifications. In this way, it is possible to detect problems in a timely manner by examining the operating conditions of the prison together with advice for improvement. When the bureau receives information about prisons suspected of having problems in some areas, a campaign check can be carried out. However, whether planned or temporary, a final evaluation report should be written and the conclusions of the report should play a decisive role in the performance and position of the prison director. However, it is worth noting that the primary condition for a committee of supervision, or an independent supervision bureau of prisons, if it is desired, it would play an effective supervisory role in the daily supervision of prisons. There are several conditions to be met: Firstly, such bureau must be independent, and they cannot be attached to the prisons or work and live with the prison supervisors. Secondly, the independence of funds, that is, the salary, work, promotion and other aspects of supervisors are separated from the prison, so that their own interests will not be subject to the prison; otherwise, they lack independence. Thirdly, the supervisors should have the power to visit prisons at anytime and anywhere, without the consent or approval of the prison administration or personnel at any time, as is the case with members of Her Majesty’s Inspectorate of Prisons and 22 23

Mike (2006, lecture). Mike (2006, lecture).

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the Independent Monitoring Board in the UK. It is only possible to find out problems at any time only if there is free access to the prison. Fourthly, as supervisors, they should also enjoy the freedom of conversation with criminals, such independence is essential. Because of the state of supervision and operation of the prisons, where there are problems, only the prisoners have knowledge and the right to speak, when they are most concerned about their living environment and the treatment they receive. Therefore, only when the supervisors are free to converse with prisoners can they hear the prisoner’s concerns and understand the prison system. This will be achieved by targeted supervision. In conclusion, only when the four conditions mentioned above are met simultaneously can the staff engage in the supervision of the daily prison activities and make an independent and accurate assessment of what is happening in the prison, based on the inspection criteria, then the supervision will be deemed feasible and effective.

3.1.2 The Power of Supervision on Civil and Administrative Litigations As the state organ of legal supervision, besides the power of supervision on criminal cases, the procuratorial organs also have the power of legal supervision on civil and administrative cases, whose purpose is to ensure a fair trial in civil and administrative cases in accordance with the law. The power of such supervision is stipulated by the related laws specifically. The Article 14 of the newly revised Civil Procedure Law of China in 2017 stipulates: “the people’s procuratorate has the power to exercise the legal supervision over the civil trial activities.” The Article 11 of the newly revised Administrative Procedure Law of China in 2017 stipulates: “the people’s procuratorate has the power to exercise the legal supervision over the administrative proceedings.“ From these stipulations, it is evident that the procuratorial organs in China has such power and function. There are two reasons why the laws of China stipulate the procuratorial organs supervise the civil and administrative litigation activities: The first is to prevent the abuse of judicial power and urge the judicial organs to correct the illegal acts in litigation through external forces, and the second is to solve the situation that the parties have no access to the unfair judgment and help the parties to seek judicial justice through trial supervision. However, in practice, how to carry out such power properly is a major challenge for the procuratorial organs.

3.1.2.1

The Power of Supervision on Civil Litigations

The more serious criminal crimes and the judicial practice of cracking down on crimes make the legal positioning and exercise of powers of the procuratorial organs tend to criminal procedure supervision, but the procuratorial supervision in the field of civil

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litigation also needs to be paid attention to.24 In accordance with the provisions of the Article 185 of the Civil Procedure Law, the people’s procuratorate shall have the power to appeal in accordance with the procedure of judicial supervision if it finds a violation of the provisions of the laws and regulations occurring in the judgment or ruling made by the people’s court. This shall hold, even if a judgment has been made, the method of supervision during civil trial activities is by the procuratorial organs through an appeal. Parties may submit their complaints to the corresponding procuratorial organs. If a party considers the decision was unfair after re-trial, he/she may apply to the procuratorate at the same level of the court that made the final decisions. After reviewing the complaints and decision, if the procuratorate concludes the reasons are reasonable for the decisions being wrong or unfair, it transfers the case to the upper to lodge an appeal to the court in the same jurisdiction. Therefore, some scholars believe that the civil appeal system of the procuratorial organs has negative effects and advocate the fundamental abolition of this system, or establishing a retrial system to replace the trial supervision procedure.25 The newly Civil Procedure Law on the provisions of procuratorial supervision is more comprehensive, reflecting the principle of comprehensive supervision, but the supervision of the form, method, scope, procedural rules and other provisions are relatively rough, such as the time limit of the procuratorate appeal and procuratorial suggestions is not clearly defined, and the legal status of the procuratorial organs in the process of appeal is not clear; so in general, it is not exquisite enough comprehensive procuratorial supervision. At present, the supervision of procuratorial organs over civil litigation includes the legal supervision over civil trial activities, civil execution activities and other illegal acts. In the civil trial activities, the procuratorial organs mainly play the role of procuratorial supervision in the following four aspects: The first is the appeal supervision caused by the appeal of the procuratorial organs. According to the first paragraph of Article 208 of the Civil Procedure Law of China, if the SPP considers that there are situations specified in Article 200 of the Civil Procedure Law,26 or the mediation document is harmful to the interests of the state and society, it should appeal in accordance with the law; the second is the legal supervision through the procuratorial suggestions. The appeal supervision of the procuratorial organs belongs 24

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. 25 Zhang (2003, p. 102). 26 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.

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to the category of post-supervision, and the procuratorial suggestion has the function of prior supervision. It is an important way of supervision and error correction; especially for the procuratorial suggestion put forward in the mediation, to some extent, it can be considered as a powerful measure of prior supervision; the third is the procuratorial supervision in the incidental civil action. The settlement of incidental civil action is the material loss caused by the crime, which should belong to the category of civil action in essence. In criminal incidental civil action, it includes not only the procuratorial organ on behalf of the public power of the state to exercise the power of prosecution to fight against crime, but also the issue of compensation for the damage of the victim; The fourth is the legal supervision of civil retrial procedure. The procuratorial organ can start the civil retrial procedure of the court by making an appeal or the procuratorial suggestions for the effective judgment. As to the procuratorial supervision on the civil execution activities, the Article 235 of the Civil Procedure Law stipulates that the people’s procuratorate has the power to exercise the legal supervision on civil execution activities. This kind of supervision inevitably involves three aspects: the scope, the object, the way and the procedure of supervision. However, the Civil Procedure Law only stipulates the general principles of civil execution supervision and does not make a clear and distinct definition of its supervision scope, the supervision object, the supervision method and procedure as well as the supervision effect and other issues. So, the scope and the object of supervision are something controversial among scholars. In practice, the procuratorial organs can not only supervise and correct the illegal and criminal conducts of the court in the execution process, but also have the power to supervise the conducts of citizens in the execution process. Not only the abuse of public power needs to be supervised, but also the abuse of private power needs to be supervised and guided. Only the supervision of citizens’ conducts can be supervised when necessary. As to the object of supervision, it should include the illegal conducts of hindering the execution by the person who is not involved in the case. As for the supervision mode and procedure, according to the present legislation, there are only two legal ways: appeal and procuratorial suggestion without specific supervision methods. However, under the guidance of the idea of “mutual winning, multiple winning and all winning,” the procuratorial suggestion, due to its flexibility and more smooth communication with the court, has been playing an increasingly important role in practice.27 In addition to supervising the trial and execution activities of the courts mentioned above, the procuratorial organs also supervise the civil mediation and the legality of the composition of civil trial organizations. The mediation plays an important role in civil litigation, which has been proved by the high mediation rate for a long time in China. In accordance with the stipulations of Article 208 of the Civil Procedure Law, if the procuratorial organ considers that the mediation statement made by the court is harmful to the interests of the state and society, it should make an appeal 27

“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.

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or the procuratorial suggestion in accordance with the law. For civil mediation, in addition to the internal self-supervision of the court, it is also necessary to strengthen the force of external supervision of the procuratorial organs. The supervision of the trial organization is mainly to supervise and examine whether the composition of the collegial panel is legal and effective and whether the challenge system is strictly implemented.28

3.1.2.2

The Power of Supervision on Administrative Litigations

In accordance with the Article 64 of the Administrative Procedure Law, the people’s procuratorate shall have the power to appeal in accordance with the procedure of judicial supervision if it finds a violation of the provisions of the laws and regulations occurring in the judgment or ruling made by the people’s court. So, the supervision of administrative litigation is also a basic power of the procuratorial organ and it is also an important legal system of administrative litigation in China. However, “Among the supervision system of public law in various countries, the procuratorial supervision is a system with Chinese characteristics. Neither developed countries under the rule of law nor other developing countries under the rule of law have China’s system of legal supervision by the procuratorial organs over court litigation activities and administrative activities of administrative organs (limited to specific administrative acts).”29 Since its establishment, the administrative litigation supervision has developed for more than 30 years with the supervision of civil litigation together. The supervision of the whole administrative litigation activities includes the supervision of the effective judgments, rulings and mediation statements, the supervision of the illegal acts of the judges in the administrative procedure and the supervision of the administrative execution activities. Article 11 of the Administrative Procedure Law stipulates: “the people’s Procuratorate has the power to exercise legal supervision over administrative litigation.” and the decision of the CPC Central Committee on Several Major Issues of Comprehensively Promoting the Rule of Law also emphasizes" the improving the legal system for the procuratorial organs to exercise the power of supervision, strengthening the legal supervision over criminal, civil and administrative proceedings” and requires that “the procuratorial organs find that the administrative organs illegally exercise their functions and powers or do not exercise their powers properly when performing their duties, they should urge the administrative organs to correct them.”30 28

Zhang Qifei (2015, pp. 24–26). Jiang (2021, p. 302). 30 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 29

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Since the Supreme People’s Procuratorate set up the Civil and Administrative Procuratorial Department in 1988, the bundling of the administrative procuratorial work and the civil procuratorial work has developed for nearly 30 years, which is reflected not only in the same organization, but also in the high similarity of business. To a large extent, it comes from the fact that the administrative litigation system has been closely intertwined with the civil litigation system since its establishment. However, the differences between the administrative legal relationship and the civil legal relationship become more and more obvious with the increase of administrative disputes. People begin to realize the uniqueness of the content and nature of the powers and obligations of the parties in the administrative legal relationship. Only an independent administrative procedure law can more effectively protect the legitimate rights and interests of citizens, legal persons and other organizations and supervise the administrative organs to exercise their functions and powers in accordance with the law. But in the past 30 years, the administrative procuratorial work has not really broken through the binding development of civil and administrative litigation supervision. The sign of seeking a breakthrough from the bundling development is to start the reform of internal institutions of the procuratorial organs at the end of 2018, forming a new pattern of legal supervision of “four kinds of procuratorial functions.” The administrative procuratorial work, which is released from the civil and administrative procuratorial supervision of China, has begun to get rid of the dependence of the past development path and strive to tap the unique value and role of its own functions.31 In the new era, there are two goals to strengthen the administrative procuratorial work: First, the administrative procuratorial work has the goal of supervising the people’s courts to conduct the administrative trials in accordance with the law, supervising the administrative organs to administer in accordance with the law, protecting the legitimate rights and interests of citizens, legal persons and other organizations and protecting the national and social public interests; the second is to promote the substantive resolution of administrative disputes and maintain the harmonious and stable social relations. In order to achieve these two goals, one is to update the idea of administrative procuratorial supervision; that is to say, the procuratorial organs should explore and practice the idea of “penetrating” administrative procuratorial supervision: first, from supervising the court’s administrative trial activities to supervising the illegal administrative acts of the administrative organs; second, on 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. 31 As to the history of the civil and administrative procuratorial work, you may see Song (2021, pp. 45–46).

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basis of supervising the court’s administrative trial and promoting the administration of the administrative organs in accordance with the law, to promote the substantive resolution of administrative disputes; Third, on the basis of a case supervision and resolving the administrative disputes, to penetrate into a kind of case supervision so as to solve the common problems in social governance. The other is to explore the new development paths. The development of administrative procuratorial work depends on the benign operation of the interconnection mechanism with the construction of rule of law for the government. Based on the requirements of the modernization of national governance system and governance capacity, the coupling strength between the administrative procuratorial work and government under the rule of law is significantly enhanced in system, function and efficiency. The structural coupling of administrative procuratorial work and government under the rule of law has both positive and negative effects. The improper coupling may lead to dysfunction. Some scholars suggest that in the future, we should distinguish different kinds of administrative procuratorial work and promote the healthy development of administrative procuratorial work through decoupling, coupling and cohesion.32 In addition, the introduction of hearing procedure into the administrative litigation supervision cases can further improve the administrative litigation supervision procedure and promote the substantive resolution of administrative disputes as well as enhance the judicial credibility. The 19th National Congress of the Communist Party of China has set a new goal to promote the comprehensive rule of law in the new era. By 2035, we will basically build a country, government and society under the rule of law. In order to realize such goal, we should give full play to the unique role of administrative procuratorial supervision in the national governance system based on its legal function by doing the following things: One is to take the institutional problems of administrative litigation as the way out for the reform of administrative prosecution; the second is to take the solution of the weakness, absence and lag of administrative litigation in the construction of the rule of law as a broad stage for the development of administrative procuratorial work; the third is to take the people’s trust in the road of safeguarding their rights in accordance with the law as an important driving force for the healthy development of the administrative procuratorial work; the fourth is to take administrative litigation supervision as the cornerstone, resolve the administrative disputes as the "nose" and take non-litigation execution supervision as the extension with grasping the new pattern of administrative procuratorial work.33 In conclusion, in order to strengthen the civil and administrative procuratorial work, in the reform of the internal structure of the procuratorial organs at the end of 2018, the SPP separated the Procuratorial Department of Civil and Administrative Work into the Procuratorial Department of Civil Work and the Procuratorial Department of Administrative Work. The specific functions of these two now separate departments have been described in the Chapter Two on the organization structure

32 33

Xie Pengcheng and Chen Lei (2021, p.003). Zhang Xueqiao (2019, p.003).

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and its reform. In the new era, the goal of the SPP is to do the civil procuratorial supervision strongly and do the administrative procuratorial supervision solidly.

3.1.3 The Power to Initiate the Public Interest Litigation This is the new power of the procuratorial organs in China. Generally speaking, The basis of civil public interest litigation is the first stipulations of Article 55 of the revised Civil Procedure Law in 2012, which is that “Acts that harm the social public interests such as, to pollute the environment, or harm the legitimate powers and interests of many consumers, the prescribed organs and related organizations may file a lawsuit in a people’s court. “After this amendment, the Protection Law of the Consumer’s Powers and Interests and the Environmental Protection Law were revised in 2013 and 2014. The amended law only authorizes the social organizations to initiate the litigation of public interest, which grant the power to initiate the litigation of consuming public interest to the national and provincial consumer organizations and the power to initiate the environmental public interest litigation to the organizations of environmental protection for public interest in compliance with enacted regulations.

3.1.3.1

Background

Due to the vague stipulations of the subjects to file a lawsuit, there have been continuing arguments in the academic circle about these subjects, whether they should include the administrative organs or the procuratorial organs. Following on, there have been a series of major developments and changes in the society of China. In Nov., 2013, the Third Plenary Session of the 18th Central Committee of the CPC proposed that “to build an ecological civilization, we must establish a complete system ecological civilization institutional system, using the system to protect the ecological environment ……to reform the management system of ecological environment protection.“ Then, in October 2014, the Fourth Plenary Session issued the Decision on Several Important Issues Concerning the Comprehensive Promotion of Governing the Country’s Law, among the legal reforms planned in the “Decision,” which claimed that the procuratorial organs should explore the establishment of a public interest litigation system. On May 5, 2015, the Team of Deepening the Reform of the Central Committee organized its twelfth meeting. The documents adopted at the meeting included the “Reform Pilot for the Procuratorial Organs to Initiate the Public Interest Litigation,” which clarifies that the reform pilots that the procuratorial organs will carry out; this includes both the administrative public interest litigation and the civil public interest litigation. After issuing these important documents, the progress of the pilot reform of public interest litigation has been significantly accelerated.

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3.1.3.2

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The Exploring of the Procuratorial Organs

The SPP immediately applied to the Standing Committee of the National People’s Congress for authorization to pilot of public interest litigation. At the request of the SPP, on July 1, 2015, the 15th meeting of the Standing Committee of the 12th National People’s Congress passed the Decision on Authorizing the SPP to Carry out the Pilot Work of Public Interest Litigation in Some Areas. The scholars in the academic circle fiercely debated the subject of public interest litigation. In practice, the procuratorial organs have vigorously carried out the public interest litigation activities, especially the administrative public interest litigation activities. The SPP, in accordance with the “Reform Pilot Program,” comprehensively considering the type and representation of the administrative regions, chose 13 provinces, autonomous regions and municipalities directly under the central government, including Beijing, Jilin, Guizhou and Shaanxi, as the first batch to undertake the public interest litigation. In order to strengthen the protection of the public interests of the state and society and promote the administrative organs to administer according to the law and its strict enforcement, in accordance with the “Decision of the Standing Committee of the National People’s Congress on Authorizing the Supreme People’s Procuratorate to Carry out Public Interest Litigation Pilot Work in Certain Areas”, the SPP made the Implementation Measures of the People’s Procuratorate for Piloting Public Interest Litigation required procuratorial work in Dec., 2015. By earnestly implementing the Party Central Committee’s deployment and the NPC Standing Committee’s authorization decision, after nearly two years of pilot work, the SPP said in its work report in 2017: “Since the pilot in 13 provinces, autonomous regions and municipalities, the procuratorial organs have handled a total of 5109 public interest litigation cases in the field of ecological environment and resource protection.” Among them, the procuratorial suggestion was submitted to the relevant administrative organs or social organizations in 4562 cases to urge them to perform their duties. In 3206 cases, the relevant administrative organs have performed their duties or corrected violations of the law. The relevant social organizations filed 28 public interest lawsuits. These two sources account for 70.9% of all administrative PIL cases. For those who still fail to perform their duties and whose public welfare has been violated, 547 cases have been filed in the people’s courts. By handling cases, the procuratorial organs urged the restoration of 128,000 hectares of contaminated and damaged cultivated land, forest land, wetland and grassland, who also urged 1443 illegal enterprises to make rectifications and claimed 200 million yuan for the cost of environmental governance and ecological restoration as well as urged the recovery of state-owned land transfer payments 5.4 billion yuan.34

34

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.

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Amendments to the Laws

Due to the smooth progress of the public interest litigation through the pilot stage resulted in great achievements, which illustrates the important role of the procuratorial organs in safeguarding the public interest. After the two-year reform pilot, the Standing Committee of the NPC Immediately revises the Administrative Procedure Law and the Civil Procedure Law again on June 27, 2017, which clearly stipulates that the procuratorial organs file the administrative public interest litigation and civil public interest litigation. So, although the scholars still have disputes over the procuratorial organs serving as a plaintiff for the public interest litigation, in practice, the procuratorial organs have played an increasingly important role in urging the administrative organs and related companies to manage the environmental pollution and ensure the food, health and social safety. We must emphasize that the focus of public interest litigation filed by the procuratorial organs is the litigation of administrative public interest. The establishment of the system of public interest litigation against administrative authorities is an important measure to implement the comprehensive strategy of governing the country in accordance with the law. This can effectively safeguard the national and social public interests, supervise the administrative organs in accordance with the law and promote the government by law.

3.1.3.4

The Development of the Work of Public Interest Litigation

There appeared a well-known cases of administrative public interest litigation as early as in 2014. On October 20, 2014, the Environmental Protection Bureau of Jinsha County in Guizhou Province was sued by the Jinsha County People’s Procuratorate for “failing to punish the enterprises that fail to pay sewage charges within the time limitation.“ This was the first public interest lawsuit filed by the procuratorial organ against an administrative organ in China; it received widespread attention from all social sectors. Following this case, the number of public interest litigation cases filed by the procuratorial organs increased rapidly, and the social effects become increasingly prominent. After the Standing Committee of the NPC amended the Administrative Procedure Law to incorporate the administrative public interest litigation system into the law in June, 2017, the administrative public interest litigation system in China became part of a nationwide legal system. The procuratorial organ has become an important force in bringing environmental public interest litigation. Since the pilot work of procuratorial public interest litigation began in July 2015, the procuratorial organs have performed their duties in accordance with the law and actively filed environmental civil and administrative public interest litigation, and the number of cases has gradually exceeded the number of environmental public interest litigation cases filed by the social organizations. By the end of December 2016, when the pilot began for half a year, the procuratorial organs had filed 74 environmental public interest litigation, accounting for only 38% of the total number of public interest litigation

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cases. By September 2018, of all 2041 environmental public interest litigation cases accepted, 1836 public interest litigation cases were filed by the procuratorial organs, accounting for 90% of the total number of accepted cases.35 There is another set of data that shows the correctness and importance of the reform of public interest litigation explored by the procuratorial organs. In 2018, the SPP announced in its work report: “4993 civil public interest lawsuits and 108,767 administrative public interest lawsuits were filed and handled by the procuratorial organs throughout the year. Among the, 59,312 cases 41,118 cases were related to food and drug safety, 10,025 cases were related to the protection of state-owned property, 2648 cases were related to the assignment of state-owned land use powers, and 57 cases were related to the protection of serviceman’s powers and interests. In 2020, the procuratorial organs of the whole country filed 151,260 public interest litigation cases, including 14,000 civil public interest litigation cases and 137,000 administrative public interest litigation cases, a year-on-year increase of double and 14.4%, respectively.36 According to the latest statistics of the SPP, in 2021, the procuratorial organs across the country totally prosecuted 4,9000 people for the crime of destroying ecological environment and resources and handled 8,8000 related public interest litigation cases. The number of public interest litigation cases initiated by the procuratorial organs has been increasing year by year, and the number of filed cases increased 12.3% year on year, which is 1.5 times of that in 2018. Judging from these statistics, the procuratorial organs have made steady progress in exploring the public interest litigation with Chinese characteristics. At present, the public interest litigation, together with the criminal procuratorial work, the civil procuratorial work and the administrative procuratorial works, constitutes the four kinds of procuratorial functions undertaken by the procuratorial organs in China.

3.2 The Power of Public Prosecution The procuratorial systems of all countries in the world are different, and their scopes of powers and functions are also quite different, but at least one of them is the same, which is the public prosecution of criminal cases. This is a common power of the procuratorial organs of a country in the world, and it is said to be the core power of the procuratorial organs. The system of public prosecution originated in France in the middle ages and was followed by other countries later.37 To decide whether to prosecute or not, the discretion that prosecutors exercise varies according to each country’s legal system. In essence, the power of public prosecution is a power to 35

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. 37 As to the origin of public prosecution, you may see Zhu (2007, pp. 113–114). 36

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pursue crimes, which may be influenced by the criminal law of different countries. The following mainly expounds the basic principles of public prosecution, the scope of public prosecution, the conditions of public prosecution and the contents of public prosecution as well as the discretion of prosecution in China.

3.2.1 The Basic Principles of Public Prosecution The basic principles of public prosecution refer to the litigation principles that run through the whole process of public prosecution, embody the general value of public prosecution, determine the litigation structure and have universal guiding significance for the legislation and judicial activities of public prosecution. From this definition, the functions of the basic principles of public prosecution is shown in four aspects: The first is to reflect and protect the procedural value of public prosecution activities; the second is to determine and influence the basic structure of litigation; the third is to guide the legislative activities of the legislature concerning public prosecution; the fourth is to guide the judicial activities of the public prosecution organs. Therefore, according to the actual situation in China, there are many basic principles guiding the public prosecution activities, such as the principle of rule of law, the principle of independence, the principle of rationality, the principle of cooperation and restriction, the principle of litigation economy, the principle of discretion, the principle of public welfare, the principle of state prosecution, the principle of prosecutors as a whole, the principle of legal supervision, the principle of presumption of innocence, the principle of non bis in idem, and so on. Some principles guide the whole criminal procedure activities, some are the basic principles peculiar to the public prosecution activities, and some are even controversial at present in China. Since these basic principles are common ones for the public prosecution activities of all countries in the world, here only expounds the three principles of the rule of law, the presumption of innocence, the principle of independence, which have important guiding significance for the public prosecution activities in China.38

3.2.1.1

The Principle of Rule of Law

The rule of law means the state governance is ruled of law. The rule of law is relative to the rule of man. The opposition between the rule of law and the rule of man is, in essence, a question of who obeys the individual power or the law. The rule of law is the symbol of the democratic era and the necessity of historical development. Therefore, as an important part of the criminal proceedings, the public prosecution is an important embodiment of the country’s governance and must implement the principle of the rule of law. The basic meanings of the principle of the rule of law

38

Zhang (2000, pp.175–182).

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are: the concept of the law’s supremacy, a complete legal system and strict and fair law enforcement. The rule of law is not only a state, but also a dynamic process, which can only be realized through the process of law application. In order to realize the rule of law in China’s public prosecution activities, we should pay more attention to the following aspects: First, we must change our idar and establish the idea of procedural rule of law; second, we must further improve the legal system of public prosecution activities, such as further improving the principal position of post prosecutors and strengthening the implementation of judicial responsibility system; improving the rate of witnesses appearing in court; further promoting the trial-centered reform, etc.; third, the power of public prosecution should be exercised strictly and fairly in accordance with the law.

3.2.1.2

The Presumption of Innocence

The principle of presumption of innocence is a legal principle formed and developed on the basis of negating the inquisitorial litigation system in the middle ages, which has been widely adopted as an important principle of the criminal procedure in the world. The principle of presumption of innocence, as a basic legal criterion to determine and protect the defendant’s status as the subject of litigation, is based on the respect for the individual value and the status of the person as the subject of social activities. At present, the principle of presumption of innocence has become an international litigation principle. In 1996, Article 12 of the revised CPL clearly stipulates that "no one shall be convicted without a decision of the people’s court in accordance with the law,” which is regarded as the principle of presumption of innocence by most scholars in China. This provision is also retained in the CPL amended in 2012 and 2018. The principle of presumption of innocence in China is embodied in the following aspects: First, the appellation of the accused is different before and after the prosecution according to the CPL of China, he is called “suspect” before prosecution, and “defendant” after prosecution; secondly, the suspect who should not be held criminally responsible, or the conducts are unable to prove a crime or not necessary to be punished or exempted from punishment, he will not be prosecuted. Thirdly, the burden of proving the defendant guilty shall be borne by the public prosecutor; fourthly, if the public prosecutor proves that the defendant is guilty, he must reach the level of “the facts are clear, the evidence is true and sufficient”; otherwise, the claim of accusing the defendant of committing a crime cannot be established. In order to implement the principle of presumption of innocence in China, the prosecutors should do the following: The first is to establish the idea of protecting the rights of suspect and defendant; the second is to strengthen the consciousness of evidence, especially after the reform of the trial-centered criminal procedure system; the third is to correctly understand and grasp the proof standard of "the evidence is true and sufficient"; the fourth is to overcome the phenomenon of one-sided emphasis

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on the conviction rate and scientifically make the quality and efficiency evaluation standards.

3.2.1.3

The Principle of Independent Exercise of the Public Prosecution Power

The independent exercise of the power of public prosecution in accordance with the law means that the procuratorial organs or personnel exercise the power of public prosecution in criminal proceedings without interference from any other organs, groups or individuals and only obey the law. The independent exercise of the power of public prosecution has become a basic legal norm universally recognized and established by all countries. As a basic principle of public prosecution, it ensures the fair exercise of the public prosecution power, prevents the public prosecution activities of the public prosecution organs or personnel from being interfered and influenced by other powers or external factors and makes the public prosecution organs an important legal guarantee for protecting human rights and realizing justice. Under the current system, the procuratorial organs in China should pay more attention to the following aspects in order to implement the principle of independent exercise of the public prosecution power in accordance with the law in the activities of public prosecution: The first is to adhere to the leadership of the party. Due to the complexity of its origin and the uniqueness of its historical development, the procuratorial organs in China have their own functions and powers. At the same time, they have many Chinese characteristics, such as the party’s absolute leadership over political and legal work, the people-centered idea, serving the overall situation of the party and the state and the mass line of judicial work, etc. The second is necessary to deal with the relationship with the public security, the court and other departments well. Naturally, when handling the duty crime cases, we should also deal with the relationship with the newly established supervisory committee. The Article 135 of the Constitution and Article 7 of the CPL of China both stipulate that the relationship among the people’s court, the people’s procuratorate and the public security organ in the criminal procedure is the division of responsibilities, mutual coordination and mutual restriction. This is a model of the relationship between the procuratorate and the police, which is also the relationship between the procuratorate and the court with distinctive Chinese characteristics. Generally speaking, such model is adapted to the needs of national conditions and the construction of the rule of law in China. It is conducive to making up for the lack of legal knowledge of the police so as to create a more harmonious and efficient judicial environment for the smooth realization of the purpose of criminal proceedings by strengthening the close cooperation between the police and prosecutors. From the perspective of the relationship between the procuratorate and the court, the leading role of the procuratorial organ in the criminal proceedings, especially in the lenient system of accepting confession and punishment, has become increasingly prominent. We should not only adhere to the central position of the court, but also play

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the leading role of the procuratorial organs. In addition, in the civil, administrative and public interest litigation cases, we should make targeted adjustments according to the characteristics of different litigation procedures in dealing with the relationship between the procuratorial organs and the court with taking the idea of “mutual winning, multiple winning and all winning” in order to give full play to the best effectiveness of legal supervision of the procuratorial organs in China. The third is to handle the relationship between handling cases independently and accepting supervision and guidance well. In procuratorial practice, it is necessary to fully implement the responsibility system of prosecutors in handling cases by carrying out the idea of "who handles cases, who is responsible; who makes decisions, who is responsible" with endowing the prosecutors with certain decision-making power in handling cases and establishing the prosecutors’ independent subject status in handling cases relatively, which is the guarantee conditions for realizing judicial justice. After the implementation of the reform of judicial responsibility system, the prosecutors should be given the power to handle cases independently. At the same time, the examination and approval system should be changed into the supervision and guidance relationship, which is a new type of the procuratorial power operation mechanism to follow the judicial laws and ensure that the prosecutors handle cases fairly in accordance with the law. In the process of handling cases independently, the ultimate goal for the prosecutor to accept supervision is to realize judicial justice and the fair exercise of the procuratorial power.

3.2.2 The Scope of Public Prosecution The scope of public prosecution exercised by Chinese prosecutors is provided by the CPL. In accordance with the stipulations of Article 169 of the CPL which was amended in October, 2018 (the latest CPL in China, unless specially indicating the time, the cited articles of the CPL are all from this latest Law), except for those cases of private prosecution, all criminal cases subject to be prosecuted should be reviewed and decided by the procuratorial organs. In China, the CPL of 1979 established the criminal prosecution system with public prosecution as the main and private prosecution as the auxiliary. The so-called public prosecution oriented means that the vast majority of criminal cases are brought to court by the people’s procuratorate on behalf of the state and society, and the “private prosecution as a supplement" refers to a small number of minor criminal cases with less serious nature of crime, relatively simple circumstances and special relationship between the perpetrator and the victim. The victim, his legal representative and close relatives directly make a lawsuit in the people’s court in his own name. The revised CPL in 1996 added a kind of private prosecution cases that is that the victim has evidence to prove that the defendant should be investigated for infringing the victims’ personal and property powers with criminal liability in accordance with the law, while the public security organs or the people’s procuratorate do not investigate

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the defendant’s criminal liability. The purpose is to solve the phenomenon that there are cases that are not made and crimes are not investigated in practice. Therefore, at present, there are only three types of criminal cases belonging to the private prosecution in accordance with the stipulations of Article 210 of the revised CPL in 2018: (1) (2) (3)

A case dealt with only after being complained; Minor criminal cases in which the defendant has evidence; A case that the victim has evidence to prove that the defendant should be investigated for infringing the victim’s personal and property powers with criminal liability in accordance with the law, while the public security organs or the people’s procuratorate do not investigate the defendant’s criminal liability.

Except for above three types of private prosecution cases, other criminal cases are charged by the procuratorial organs in China, which are also known as the public prosecution cases. Under the system design of coexistence of public prosecution and private prosecution, actually, the relationship between public prosecution and private prosecution is very complex. There is a well-known case called a lady rumored with affairs with the express man which happened in July, 2020 and involves in the transferring from the private prosection to public prosecution. This case is a typical one on cyberspace governance in recent years in China. However, limited to the topics discussed in this chapter, it will not be discussed here.39

3.2.3 The Conditions of Pubic Prosecution In China, the public prosecution is the main way of criminal prosecution. The public prosecution is a kind of litigation activity in which the people’s procuratorate brings a complaint to the people’s court against the person (or unit) who is considered to have committed a crime and requires the people’s court to confirm the alleged crime facts and make the defendant to bear the criminal liability of the defendant. Once the people’s procuratorate initiates a public prosecution, it has the litigation effect of starting the trial procedure as long as it meets the legal procedural requirements. Therefore, the people’s procuratorate must meet certain conditions to initiate a public prosecution. The conditions of public prosecution can be divided into substantive conditions and procedural ones. Specifically, there are three aspects:

39

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

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The Criminal Facts of the Suspect Have Been Investigated Clearly

The facts of a crime have been found out, the most ideal result is that all facts and detailed circumstances of the crime have been made clear. But the crime happened in the past. If the situation is complicated, due to the objective factors such as time, technical conditions and the subjective conditions such as the professional level of investigators, it is impossible to find out all the facts and details of the case. Therefore, in accordance with the Article 355 of the Criminal Procedure Rules of the People’s Procuratorate,40 it can be confirmed that the facts of the crime have been ascertained in any of the following circumstances: (1)

(2) (3) (4)

In the case of a single crime, the facts found out are sufficient for conviction and sentencing or the facts related to conviction and sentencing have been found out though the facts that do not affect conviction and sentencing cannot be found out; For cases involving several crimes, some of them have been identified and meet the conditions for prosecution, while other crimes cannot be identified; It is impossible to find out the whereabouts of the crime tools and stolen goods, but there is other evidence sufficient to convict and sentence the defendant; The witness testimony, suspect confession and explanation, the victim’s statement is consistent with the main plot, and the individual plot is inconsistent, but it does not affect the conviction.

If the circumstances mentioned in item 2 of the preceding paragraph are met, the case shall be prosecuted for the crimes that have been investigated.

3.2.3.2

The Evidence is Reliable and Sufficient

The modern criminal procedure is built on the basis of “evidence adjudication.” Therefore, when the procuratorial organ initiates a public prosecution, it must take the necessary evidence as the premise. However, the problem is to what extent the procuratorial organs need to grasp the evidence before they can decide to prosecute a case, which involves the standard of criminal prosecution. The research of the standards of criminal prosecution is not only a technical problem in the criminal proceedings, but also an ideological problem that affects the investigation and crackdown on crimes, the reform of criminal system and the scientific evaluation of the quality standards of the procuratorial work and the examination and prosecution work as well as the development of procuratorial work.41 40

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. 41 Zuo (1999, p. 251).

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In many Western countries, the basic requirement of the evidence standard of criminal prosecution is that there should be enough evidence to prove the fact of crime, but it is not required to reach the level required by the court’s guilty verdict.42 In China, the reliability of evidence in the criminal procedure means that every evidence based on the conviction has been verified and can prove the true situation of the case, which is the requirement of evidence quality. The sufficiency of evidence means that all the evidence in a case has sufficient force to prove the facts, and it is sufficient to exclude other possibilities to prove the whole case. This is the requirement of the quantity of evidence. At present, the standard of evidence for prosecution stipulated in the CPL of China is the same as that for the court’s conviction, which can also explain why the conviction rate of cases is particularly high in China. However, in practice, the evidence considered by the procuratorial organ is indeed reliable and sufficient, which is somewhat lower than that when the court finds the defendant guilty. However, it should be noted that the practice of litigation has proved that the evidence is reliable and sufficient does not mean the more evidence, the better. The key point lies in the probative force of the evidence.

3.2.3.3

The Suspect Shall Be Charged for His Criminal Liability in Accordance with the Law

The suspect should be prosecuted for his criminal liability in accordance with the law, which means that the conducts of a criminal suspect is constituted by a crime in accordance with the provisions of the Criminal Law of China and shall be punished. A criminal suspect has committed some kind of crime, and there is no case in the Article 16 of the CPL that does not need to pursue the criminal liability,43 the procuratorial organs should prosecute them. However, if there is a situation where 42

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. 43 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.

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the criminal liability should not be pursued in accordance with the law, even if there is evidence to prove that it committed an offense, the procuratorial organ does not have to initiate a public prosecution. In addition, if the circumstances of the offense are minor and no penalty is required, the procuratorial organ may not initiate a public prosecution in accordance with the law.44

3.2.4 The Contents of Public Prosecution The contents of public prosecution refer to what prosecutors should do in the process of public prosecution. The power to institute the public prosecution includes both the power to review the cases concluded by the investigative organs and the power to decide whether or not to prosecute them on the basis of the results of review and the power to appear in court after the decision to support the public prosecution, as well as the power to appeal the decisions of the court. Since crime is a most serious breach of the law and established social order, the prosecution of criminal conducts is an activity to ensure that the law is observed and the dignity of the law is maintained. The procuratorial organs in China, as the organ of legal supervision of the state, it should have the power to prosecute crimes. In addition, in accordance with the newly provisions of the CPL in 2018, there is a Lenient System of Accepting Confession and Punishment. In implementing such system, the Chinese prosecutors enjoy more extensive power in deciding the punishment of the criminals. On October, 24, 2019, the Supreme People’s Procuratorate, in conjunction with the Supreme People’s Court, the Ministry of Public Security, the Ministry of National Security and the Ministry of Justice, jointly issued the “Guiding Opinions on the Application of the Lenient System of Accepting Confession and Punishment.” At the press conference, the Deputy Prosecutor-General of the SPP introduced that the application rate of the system has gradually increased. From January to April 2019, the average application rate for criminal cases handled by the procuratorial organs nationwide was 27.33%; June was 29.67%; January to August was 36.5%; January to September was 40.1%. The average application rate of Chongqing, Tianjin, Jiangsu and other provinces has exceeded 70%. By the end of 2019, the application rate was 83.28%. Throughout the year of 2020, the application rate of leniency system for guilty plea exceeded 85%; the adoption rate of sentencing suggestions was close to 95%; the accepting rate of the first instance was more than 95%, 21.7% points higher than that of other criminal cases. The proportion of pre-trial detention decreased from 96.8% in 2000 to 53% in 2020. This system is derived from the economic development and social stability of China, the obvious change of the criminal structure, the proportion of serious crimes continues to decline, and the number of minor crimes is increasing. The number of cases sentenced to fixed-term imprisonment of less than three years and the punishment below increased from 53.9% in 2000 to 77.4% in 44

Zhang Qiong (2000, p. 338).

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2020.45 The detailed requirements for applying this system, I’ll discuss in the chapter on the procuratorial reforms.

3.2.5 The Discretion of Prosecution The discretion of prosecution refers to the power of prosecutors to decide whether to prosecute or not to prosecute according to the prosecution policy and the evidence in the case when reviewing the cases transferred from the police after finishing investigation. In order to realize the justice of a case, in the criminal proceedings, each country all over the world gives prosecutors the discretion of prosecution, non-prosecution and withdrawal. So, some scholar says: the prosecutor is a powerful figure, existing at a key intersection of state power and citizens’ rights. Prosecutors’ decisions on whether or not to prosecute in particular cases affect the life and liberty of criminal defendants, the reputation of the criminal justice system, and the social values articulated through the criminal law.46

3.2.5.1

Theoretical Basis and Background

Historically, whether to give prosecutors the discretion of prosecution is the essential difference between the prosecution of legality and prosecution of opportunity. The emergence of prosecution of legality and prosecution of opportunity is closely related to the people’s understanding of the purpose of penalty. Before the 1920s, the theory of retributive punishment advocated by the criminal classical school dominated. The penalty should follow the principle of certainty and inevitability; that is, the penalty is the inevitable consequence of crime. At that time, influenced by such theory, the prosecution should follow the principle of legality, in other words, the crime must be prosecuted and the crime must be punished. Accordingly, where the conditions for prosecution were met, the prosecutor must prosecute without any discretion. With the rapid development of the capitalist economy, the social crime had also increased rapidly. The theory of the criminal classical school was powerless in front of this phenomenon, and its view of retribution punishment had gradually been replaced by the view of goal punishment of the school of criminal sociology. Besides the function of punishment, the penalty has the function of education and prevention and emphasizes the special prevention function for the criminal. In the criminal procedure law, the prosecution of opportunity also came into being, which has been paid more and more attention and widely used in the criminal procedure practice of various countries in the world. Although the expression of the concept of prosecution of opportunity is slightly different, its spiritual essence is that “the law does not require 45

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. 46 Kellie Toole (2019, p. 232).

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the prosecutors to prosecute all criminal cases, but can decide whether to prosecute or not according to the specific circumstances of the case.”47 Since the prosecution of opportunity gives prosecutors the discretion to prosecute, so that they can timely terminate some started cases through the decision of nonprosecution, which is undoubtedly conducive to improving the procedural efficiency, saving limited judicial resources, reducing the burden of the court and realizing the procedural justice. Since “justice delayer is justice denied,” let the defendant remove the drag of the lawsuit in time, which itself is the realization of the justice of the case. Therefore, the prosecution of opportunity not only emphasizes efficiency, but also takes into account the substantive justice. Compared with the prosecution of legality, which only aims at the realization of substantive justice, it naturally has its advantages. However, the prosecution of opportunity did not completely replace the prosecution of legality. The main reason is that the exercise of criminal power is the way for the state to restore the authority and order of law, and the criminal prosecution is the necessary premise for the realization of criminal power of the state, so the prosecution of legality has its rationality. Therefore, throughout the criminal proceedings of contemporary major countries, the system of prosecution of opportunity has been added on the premise of prosecution of legality. The unitary monopoly of prosecution of legality has been broken and replaced by the dual coexistence of prosecution of legality and prosecution of opportunity. Generally speaking, Civil Law countries usually stipulate the prosecution of legality as the basic principle of criminal procedure in the form of statute law and take the prosecution of opportunity as the exception and supplement. Such as, Article 152 of the German Criminal Procedure Law clearly stipulates the legality of prosecution; that is, “except as otherwise provided by law, when there is sufficient basis for facts, the procuratorate has the obligation to take action on all offenses that can be prosecuted.” Therefore, in Germany, the prosecution of legality is the principle, while the prosecution of opportunity is the exception. In Common Law countries, the case law does not make clear provisions on the prosecution of legality and prosecution of opportunity, but both are also used in practice. For example, in the United States, the prosecutors, on behalf of the state, prosecute cases that meet the conditions for prosecution to the court, which reflects the prosecution of legality. However, the prosecutors in the United States enjoy an extensive discretion. They can not only decide on which suspect to be prosecuted when they have several suspects, but also decide what kind of crimes is prosecuted for a suspect to commit various crimes and also have the power of degrading prosecution, withdrawal of prosecution and refusal of prosecution, such as in the plea bargaining procedure. It embodies the prosecuting of opportunity. Since this procedure was determined by the Supreme Court of the United States in the 1960s, it has been widely used since the 1970s. At present, more than 90% of criminal cases in the United States are solved through plea bargaining. Therefore, in the United States, it can be said that the prosecution of opportunity is essentially the principle of criminal prosecution, while the prosecution of legality has become an exception. 47

Wang (2000, p.91).

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In China, in accordance with the CPL in 2018, it also makes appropriate provisions on the prosecution of legality and the prosecution of opportunity. It is generally believed that the provisions of Articles 169 and 177 reflect the prosecution of legality. If a case conforms to the provisions of Article 169, the procuratorate must prosecute, and if it conforms to the provisions of Article 177, it shall make a decision not to prosecute. The provisions on “discretionary non-prosecution” and “non-prosecution in doubt” in paragraph 2 of Article 177 and paragraph 4 of Article 175 embody the prosecution of opportunity. However, China still follows the prosecution of legality in Civil Law countries. In the criminal proceedings, the prosecution of legality is the principle, while the prosecution of opportunity is the exception. Therefore, whether it is Civil Law countries or Common Law countries, and whether it is based on the prosecution of legality or the prosecution of opportunity, it is the result of its choice of litigation value. In Civil Law countries, their traditional legislative ideas are “retribution and general prevention,” so the prosecution of legality has become a universal principle, while the prosecution of opportunity has become an exception; The Common Law countries pursue special prevention, efficiency and case justice, so the prosecution of opportunity has become the principle of prosecution, while the prosecution of legality has become the exception.

3.2.5.2

The Discretion of Chinese Prosecutors

Before the reform of quota control of prosecutors, in practice, Chinese prosecutors had very little discretion, the law clearly stipulates that minor crimes may not be prosecuted. This did not prevent the prosecutor who handled the case putting forward his opinion not to prosecute, then discussed by the office, and then submitted to the deputy director of the procuratorate who was in charge of the office and the procuratorial committee decides whether to prosecute or not finally. Therefore, as an individual prosecutor, he only has the power of recommendation which is not to prosecute a case. After the reform of the quota control system of prosecutors, the discretion of post prosecutors has been expanded to a great extent. The purpose of implementing the post control system is to implement the judicial accountability system, and the core content of the judicial accountability system is to truly implement the requirement of “who handles cases is responsible, who decides who is responsible." Therefore, the post prosecutors enjoy greater independence when handling cases, and are responsible for their decisions, such as in the investigation cases of duty crime, deciding on the preliminary investigation and the preliminary investigation scheme; in the cases of supervision on investigation, whether to approve the arrest and require the public security organ to explain the written reasons for not filing a case or filing a case; in the cases of public prosecution, deciding whether to prosecute and put forward sentencing suggestions; in the cases of procedural supervision, it supervises whether the coercive measures taken by the public security organs are legal and reviewing the necessity of detention and so on.

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As to the public prosecution, in accordance with the revised CPL of China in 2018, the non-prosecution system is divided into five kinds: statutory nonprosecution, discretionary non-prosecution, non-prosecution in doubt, conditional non-prosecution and prosecution approved by the Supreme People’s Procuratorate. The statutory non-prosecution refers to the provisions of Article 177 of the CPL; that is, if the suspect does not commit a crime, or if there is one of the circumstances stipulated in the Article 16 of this law,48 the people’s procuratorate shall make a decision not to prosecute. In other words, the statutory non-prosecution is that a criminal suspect who has no criminal facts, or the circumstances of the crime are minor, it is not necessary to impose a penalty or to exempt from punishment in accordance with the provisions of the Criminal Law of China, the people’s procuratorate shall make a decision not to prosecute. Under these circumstances, the prosecutor does not have the discretion to prosecute. The discretionary non prosecution, also known as relative non-prosecution, means that the prosecutor can choose to prosecute or not to prosecute according to the situations of the case. There are mainly several situations: (1) the criminal suspect who committed a crime outside the People’s Republic of China and should be held criminally responsibility in accordance with the Criminal Law of China, but has been penalized in foreign countries; (2) the suspect is deaf or dumb or blind; (3) it is a crime with unnecessary harm committed by a criminal suspect who has exceeded the necessary limits due to excessive defense or emergency avoidance; (4) making conditions or preparing tools for a crime; (5) it automatically terminates or automatically and effectively prevents the occurrence of criminal results in the process of crime; (6) it plays a secondary or auxiliary role in a joint crime; (7) being coerced into participating in a crime; (8) the suspect voluntarily surrender or makes contributions after surrender; (9) those who commit minor crimes and turn themselves in, or those who commit serious crimes and perform meritorious deeds. Non-prosecution in doubt, also known as non-prosecution in case of insufficient evidence, is the provision of paragraph 4 of the Article 175 of the CPL, which is that if the people’s procuratorate still believes that the evidence is insufficient and does not meet the conditions for prosecution after secondary supplementary investigation for a case it shall make a decision not to prosecute. But such kind of non-prosecution in doubt is only temporary rather than permanent. The conditional non-prosecution is also called suspension of prosecution. At present, China only sets the conditional non -prosecution for minors. The difference between conditional non-prosecution system and other non-prosecution systems is that in the conditional non -prosecution system, the procuratorial organ has two discretionary powers: One is the power to start the decision of conditional nonprosecution procedure; the other is that whether the power to prosecute suspect is decided after the expiration of the inspection.49 The application of conditional nonprosecution is a juvenile offense which belongs to the crime of infringing upon 48

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.

49

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the citizens’ personal rights, democratic rights, property and obstructing the social administrative order and may be sentenced to one year’s fixed-term imprisonment. If it meets the conditions for prosecution, but shows repentance, the people’s procuratorate may make a conditional non prosecution decision. The conditional nonprosecution system is the concrete practice of “comprehensive thought of prevention.”50 In practice, the procuratorial organs explore and improve the conditional non-prosecution system for minors by implementing the public hearing procedures and establishing the education bases of observation, protection and assistance. The issue of non-prosecution approved by the Supreme People’s Procuratorate is stipulated in the Article 182 of the CPL, which is a new provision added in the amendments in 2018. The provisions are that “the suspect voluntarily confesses the facts of a suspected crime, if there is a major meritorious service or a case involving the state’s major interests, the public security organ may cancel the case after the approval of the Supreme People’s Procuratorate. The people’s procuratorate may make a decision not to prosecute or may not prosecute one or more of the suspected crimes.” It can be seen that the contents of non-prosecution in China are quite rich and the discretionary non-prosecution is the most obvious case type in which Chinese prosecutors use their discretion. Then, how to prevent the abuse of prosecutors’ discretion? This involves the supervision of prosecution.

3.2.5.3

The Supervision on Prosecution

The so-called supervision on prosecution refers to the supervision of the decision of prosecution and non-prosecution made by the prosecutor, whose essence is the supervision of the prosecutor’s discretion in prosecution. As early as in 1951, Sir Hartley Shawcross, the Attorney General of England and Wales between 1945 and 1951, made the classic pronouncement that: “It has never been the rule in this country and I hope it never will be that suspected criminal offences must automatically be the subject of prosecution” “While the acceptance of the prosecutorial discretion is longstanding and widely accepted, its existence does generate certain concerns.”51 So, in the criminal procedure, in order to realize the justice for a case, the prosecutors must be given discretion; in order to prevent the prosecutors from abusing their discretion, they must be supervised. (1)

The Mode of Supervision on Prosecution

From a worldwide perspective, there are mainly two kinds of procedures for supervising prosecution: One is pre-trial procedure; the other is the jury supervision procedure. Although the pre-trial procedure usually appears in Civil Law countries, there is a similar committal for trial in Britain, which can also be called delivery trial procedure or transfer trial procedure. 50 51

Liu (2014, p.206). Kellie Toole (2019, p. 233).

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A.

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The Procedure of Supervision on Prosecution in Common Law countries

If an innocent citizen is put on trial, even if he is finally acquitted, the citizen will have to pay a heavy price. Once a person is accused, he must wait for trial, and the anxiety in waiting will naturally follow like a shadow; the large cost of the trial is also a heavy burden for the defendant. In view of this, it is necessary to review the prosecutor’s allegations in order to protect the rights of innocent people in criminal proceedings. Such reviews are usually conducted by neutral bodies, such as grand juries or magistrates. The grand jury reviews the prosecutor’s charges to decide whether to prosecute, while the magistrate determines whether the charges have sufficient evidence through pre-trial, which requires further trial. (A)

Pretrial Procedure in British Criminal Procedure

In Britain, a procedure similar to the pre-trial procedure is called committee for trial. The purpose of this procedure is for the magistrate to review the cases of indictable offenses initiated by the prosecutor according to the indictment to determine whether the charge has sufficient evidence and whether it is necessary to transfer the case to the Crown Court for trial so as to ensure that the accused is free from prosecution and trial without firm evidence. During the pre-trial, the magistrate shall call the defendant and his defense lawyer, the prosecutor and relevant personnel to the court, the charges against the defendant are read out to, and then a hearing is held to review the evidence of the charges. Based on the results of hearing, the magistrate decides to revoke the case or refer it to the Crown Court. At present, in Britain, the vast majority of indictable cases can only be transferred to the Crown Court for trial after the pre-trial procedure of the magistrate. (B)

Grand Jury’s Review of the Prosecutor’s Charges in American Criminal Procedure

In the United States, the charges initiated by the prosecutor are mainly examined by the grand jury. The grand jury system in the United States originated in Britain, whose main function is to use summons for investigation. According to the Fifth Amendment of the Federal Constitution and similar provisions of state constitutions, the charges of felony can only be decided by the grand jury. The grand jury performs the function of investigation based on its own information and has the power to require the potential witnesses to provide evidence for the suspected crimes in front of the grand jury. Due to the dual functions of the grand jury, it is generally believed that the grand jury plays the role of “sword and shield” in the criminal procedure. As a review body, the grand jury acts as a shield. By refusing to prosecute someone, the grand jury can prevent wrong or retaliatory litigation against the innocent people. As an investigation institution, the grand jury plays the special role of “sword” that other investigation procedures cannot play in the fight against crimes. The grand jury examines the prosecutor’s charges mainly to see whether there is a reasonable basis for the prosecutor to accuse someone of a crime, and also to confirm whether it is reasonable to put someone on trial based on criminal charges.

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This is undoubtedly the supervision and restriction of the prosecutors’ discretion of prosecution. B.

The Restriction and Control of the Prosecutors’ Discretion in Civil Law countries

In Civil Law countries, the prosecution of opportunity is an exception to the principle of criminal procedure, but the prosecutors still have the power to decide not to prosecute some criminal cases. Generally speaking, the legal control of the procurator’s non-prosecution power mainly includes judicial control, special organization control and internal control of the procuratorial organ. (A)

The control of judicial organs In the control of judicial organs, such as Germany, when the prosecutors want to make a decision not to prosecute misdemeanors, they must obtain the consent of judges. In addition, Germany also gives victims the right to complain. When the victims are not satisfied with the prosecutor’s decision not to prosecute, they can apply to the judge. When the judge thinks that the victim’s application is justified, he can order the prosecutor to prosecute, which is called the compulsory prosecution procedure.

In addition, in the Netherlands, which has a long tradition of Civil Law system, the prosecutors are as independent as the prosecutors in the United States. They have the power to decide which person and which crimes to prosecute and also have the power to decide not to prosecute without the consent of judges. If the victim is not satisfied with the decision not to prosecute, he may make complaint to the court. (B)

(C)

The control of specialized organizations. In Japan, there are also compulsory prosecution procedures similar to those in Germany. Japan also allows the informant to submit a request for trial to the court when he refuses to accept the prosecutor’s decision not to prosecute. Once the court agrees, the case can be tried directly. At this time, the court appoints a lawyer to appear in court instead of the prosecutor to support the public prosecution. However, such prosecution procedure is limited to specific crimes, such as the decision not to prosecute the crime of abuse of power by civil servants. In addition, in Japan, there is a procuratorial review committee which can also restrict the discretion of prosecutors. Its operation procedure is as follows: Upon the application of the victim or the voting of a majority of the members of the review committee, the review committee can review the prosecutor’s decision not to prosecute. After review, if it is considered that the prosecutor’s decision not to prosecute is inappropriate, the review committee may recommend in writing that the prosecutor should initiate the public prosecution. The internal control mode of the procuratorial organ. The internal control mode of the procuratorial organ mainly refers to that when the victim or the informant refuses to accept the decision of the prosecutor not to prosecute, he can submit a reconsideration to the procuratorial organ. After reconsideration, if the procuratorial organ considers that its application is justified, it may revoke the decision not to prosecute and initiate a public prosecution again, such as the practice of the procuratorial organs in China.

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From the above introduction, it can be seen that both Common Law countries and Civil Law countries implement the pre-trial system or similar pre-trial system for the public prosecution cases in the criminal proceedings, whose purpose is to effectively restrict the prosecution power of the prosecutors, improve the accuracy of prosecution, and minimize the harm caused by the improper prosecution to citizens’ rights and interests. The role of pre-trial is an essential filter between the public prosecution and the formal trial, and it is an intermediary procedure. (2)

The Legal Control of Prosecutors’ non Prosecution Power in China

In accordance with the provisions of the new CPL of China, the procuratorial organ has the power to make a decision not to prosecute a case that has been investigated by the public security organ in the process of examination and prosecution. As mentioned above, the non-prosecution system in China is divided into five kinds: statutory (absolute) non-prosecution, discretionary (relative) non-prosecution, nonprosecution in doubt, conditional non-prosecution and prosecution approved by the Supreme People’s Procuratorate. Among them, the prosecutor’s discretion can only be used in the two cases of relative non-prosecution and non-prosecution in doubt. Although scholars have some differences on the applicable conditions of relative non-prosecution, in practice, the prosecutors believe that its applicable conditions are: First, the circumstances of the crime are minor; second, in accordance with the provisions of the Criminal Law of China, there is no need to be punished or exempt from punishment. The applicable condition of non-prosecution in doubt is to require the people’s procuratorate to return the cases with insufficient evidence to the public security organ for supplementary investigation in the process of examination and prosecution. At the same time, the decision of non-prosecution can be made only after the discussion of the procuratorial committee or approved by the deputy director of the procuratorate in charge or above. In terms of substantive elements, the evidence is insufficient, which means that the evidence does not meet the requirements of “authenticity and sufficiency” of the standard of proof.52 In accordance with the explanations and stipulations of Article 368 the Rules of the CPL of the People’s Procuratorate,53 one of the following situations cannot be determined that a criminal suspect constitutes a crime and that it is necessary for him to be responsible for criminal responsibility. A. B. C. D.

52

Lack of necessary evidence to prove the facts of the constitutive elements of a crime; The evidence on which the conviction is based is in doubt and cannot be verified; The contradiction between the evidence on which the conviction is based or between the evidence and the facts of the case cannot be reasonably excluded; The conclusion based on the evidence has other possibilities, and the reasonable doubt cannot be ruled out;

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.

53

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According to the evidence, the facts of the case are found to be inconsistent with the laws of logic and experiences, and the conclusion is obviously inconsistent with common sense.

At present, in accordance with the provisions of relevant laws, there are two forms to restrict the decision not to prosecute made by the prosecutor in China: One is the reconsideration system. If the public security organ is not satisfied with the decision not to prosecute made by the procuratorial organ, it can file a reconsideration. If the opinion is not accepted, it can also apply to the next higher procuratorial organ for review. If the victim or the person not to be prosecuted is not satisfied with the decision of the procuratorial organ not to prosecute, he may make complaint to the procuratorial organ. After reviewing the reconsideration and complaint, if the procuratorial organ considers that the original decision is inappropriate, it shall revoke the decision and then initiate a public prosecution. The other is that if the victim refuses to accept the decision not to prosecute, he may directly bring a suit to the court. The exercise of this right is not limited by the nature of crime and the types of cases and does not need to be ruled by the court. It can effectively curb the abuse of prosecutors’ discretion in prosecution. However, to a certain extent, it will also damage the authority of the state’s public prosecution power and increase the burden of the court due to the abuse of the victim’s prosecution right. Actually, in practice, the prosecutors in China have little discretion not to prosecute. However, in recent years, the number and proportion of non-prosecution are increasing. For example, in 2020, there were 1,572,971 people were prosecuted totally, a year-on-year decrease of 13.5%; It was decided not to prosecute 249,312 people, a year-on-year increase of 31%, and the non-prosecution rate was 13.7%, a year-on-year increase of 4.2% points.54 During the discussion of the supervision and direction on the education and rectification of the national political and legal teams, a prosecutor who has been engaged in prosecution for many years introduced the main reasons for the low rate of non-prosecution, which is: Firstly, the procuratorial organs are worried that if they do not strictly grasp the conditions for non-prosecution of misdemeanors, they may lose the power of non-prosecution of misdemeanors in the future; secondly, the common people may think that if the procuratorate makes a decision not to prosecute a case that has been painstakingly investigated by the public security organ, they will take it for granted that there is a problem. If a high-profile case is lost in the hands of the procuratorate, not only the parties do not understand it, but also it is difficult for other people to understand it; thirdly, the guiding ideology of procuratorial work. If the rate of non-prosecution is too high, the contradiction may focus on the procuratorate, which is not conducive to the work of the procuratorate. Therefore, the case should be sent out as much as possible. However, the reasons for these three aspects have gradually been disappearing in recent years, especially in the lenient system of accepting confession and punishment. For example, in 2020, for those who could not be arrested in accordance with the law and whose criminal circumstances were light and it was not necessary to punish them, 88,000 people were 54

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.

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not arrested and 202,000 people were not prosecuted, accounting for an increase of 0.8 and 3.9% points respectively.55 It can be said that the judicial efficiency is higher and the case handling effect is better.

3.3 The Power of Approving Arrest or Deciding Arrest It is well known that in the criminal justice system, the arrest is the most severe coercive measures of depriving the liberty, which is set up to ensure the satisfied conduct of the criminal proceedings. The power of approving arrest, in short, refers to the procuratorial organ’s power to review and decide whether or not to arrest the criminal suspect who has been identified by the investigation organs. The main functions of the procuratorial organ in China are to supervise the procedural activities of the investigation organs. For example, in 2020, the procuratorial organ across the country did not approve the arrest of 138, 000 people whose offense did not constitute a crime or suffered from lack of evidence, which ensured that innocent people were not prosecuted.56

3.3.1 The Functions of Arrest Every country has a different constitution, resulting in a variety of political, economic, historic, cultural and psychological characteristics. The differences in the constitutional judicial system and the procedural system of each country has their own procuratorial system. Therefore, implementation of the power of approving arrest is not uniform worldwide. A country’s legal powers and defense in law to be tried by the courts or judges. The law provides a power of arrest, it is mainly to restrict the prosecuting power of the administrative powers in prosecution, so as to prevent the investigation service from abusing its power of arrest and violating the personal rights and freedoms of citizens. This ensures the legality and rationality of the arrest decision with the purpose of a unified procedural activities and the guarantee of human rights.57 In essence, the exercise of the power of arrest is the legal supervision on investigation activities.

55

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. 56 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. 57 Zhu (2007, p. 122).

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Since the procuratorial organ of China is the specific organ of legal supervision, the approval of arrest is endowed to the procuratorial organ may act in accordance with the related laws. The roles of such allocated policies are as follows: (1) to review the grounds and necessity for arrest in order to ensure the legality and legitimacy of the arrest measures; (2) to restrict the power of prosecution of the administrative organs in order to prevent the abuse of their powers; (3) to ensure the legality of cases by examining and approving arrest in order to detect the shortcomings in the investigation activities; (4) to supervise whether the investigation activities are legal or not but ensuring the evidence was obtained legally for a solid foundation for the prosecution of cases. Therefore, the purpose of exercising the power of arrest is to find out whether there is a “reasonable basis” for the arrest brought by the investigation organ and whether it is necessary for the arrest, and the investigation organ has applied the arrest measure correctly. If a case is to be investigated directly by the procuratorial organ itself, it is up to the procuratorial organ itself to decide whether it is necessary to arrest the suspect or not, such as the duty crime, before the reform of the establishment of the State Committee of Supervision, the duty crime was directly investigated by the procuratorial organ in China.

3.3.2 The Rationality for the Procuratorial Organ to Exercise the Power of Approving Arrest in China In recent years, with the continuous disclosure of wrongful decisions in the field of criminal justice, some Chinese scholars have begun to examine the scientific nature and rationality of the process design of the criminal justice system in China, the power of approving arrest by the procuratorial organs being seen as controversial. These arguments began at the end of the twentieth century, the academic scholars objected to the procuratorial organ’s exercise of the power to approve the arrest,58 but researchers in the procuratorial system expressly disagreed with the opinions of the academia. Their research has demonstrated the rationality of the procuratorial organ’s approval of the arrest power.59 There were serious differences of opinion between the negative and the positive arguments. However, under the political system of the People’s Congress system in China, it is reasonable that the power of approving arrest should be exercised by the procuratorial which differs from the investigation organ. The reasons are as follows: (1)

58 59

From the perspective of the functions and powers of the procuratorial organs in China, it is a specific state organ of legal supervision, so it is with necessity and rationality that the procuratorial organ supervises the activities of the investigation organ;

Chen (2002, p. 63). Zhu (2007, pp. 122~125).

3.3 The Power of Approving Arrest or Deciding Arrest

(2)

(3)

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The purpose of the arrest is to prevent the criminal suspect from disappearing, threatening witnesses, making the cross confession, destroying the evidence or re-committing the crimes. By taking measures to put the suspect under the supervision of the state power is to ensure the smooth progress of the investigation work and the realization of the purpose of the state’s prosecution of criminals; From the perspective of safeguarding the human powers, there should be a proper balance between combating crime and guaranteeing human rights in the modern criminal proceedings. It is necessary to establish a system of approving unnecessary arrest, check the power of arrest and avoid the misuse of the pubic power by the arbitrarily infringement of human rights. In essence, the power of approving arrest is a restriction on the power of investigation, which is a part of the power of legal supervision. Under the present system of judicial framework of China, the procuratorial organ has the responsibility of supervising the accurate implementation of the law by exercising the power of approving arrest through legal supervision and exercise its supervisory power. The procuratorial organ’s supervision is on the whole process of the investigation activities of the investigation organs to ensure they act legally by preventing wrong arrest or over-use of its arrest power. It is reasonable for the procuratorial organ to exercise the power of approving arrest and the procuratorial organ can effectively supervise the investigation organ’s activities, filing a case and its investigation. The power of supervision must be entrusted to the procuratorial organ to carry out the law. In short, the design of a country’s legal system is undoubtedly inextricably linked to the country’s history and culture, and how its judicial resources should be properly allocated should also be considered from a nation with perspective, only then can the various systems formulated be coordinated, run harmoniously and smoothly so as to achieve the ultimate goal of justice. However, though it is reasonable for the procuratorial organs in China to exercise the power of approving arrest, an empirical study on the work of some local procuratorates, there still exist lots of problems in exercising such power in practice.

3.3.3 Main Problems Existing in the Work of Approving Arrest In accordance with the provisions of the Constitution and Criminal Procedure law of China, except that the arrest is decided by the court, it is approved or decided by the procuratorates though the power to approve the arrest in most countries in the world is exercised by the court or judge. Just as mentioned above, it is reasonable for the procuratorate to exercise the power of approving arrest in China, there are still many problems in practice.

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Biased Understanding of the Conditions for Arrest

Under the current Criminal Procedure Law in China, the approval of an arrest must be met by three conditions, namely “there is evidence to prove the facts of a crime,” “the penalty may be imposed of imprisonment” and “it is necessary to arrest.” Otherwise, even if there is evidence to prove that the crime committed is very serious one, the arrest may not be applied. For example, if the accused suspected of homicide is accused, there is no obvious personal danger to others and the compulsory measures such as bail pending for trial or residential surveillance are sufficient to ensure the smooth progress of the proceedings, the arrest measures may not be applied. However, in practice, it is common to approve an arrest without regard to the need for arrest; once there is “evidence of the facts of a crime, the penalty may be imposed before the imprisonment,” which may lead to the arrest of the suspect in most cases without considering the necessity; then the arrest becomes the leading role of various coercive measures and results in prolonged detention. The universal application of arrest measures in practice has virtually raised the threshold for the application of other coercive measures, such as bail for pending trial (取保候审), which results in only some people with money and relationship who may succeed in applying for bail pending trial. It is very difficult for the common people to obtain the bail pending for trial even if they meet the requirements of the law. This pre-trial mode of “taking custody as the principle and taking the bail as the exception” is not only unfavorable for the protection of the human rights of the suspects, but also increases the amount of manpower and material resources paid by the state for the detention. It also provides the opportunity for judicial corruption.

3.3.3.2

Weak Supervision of Investigation Activities by the Procuratorial Organs

The people’s procuratorate is the state organ of legal supervision, which exercises the legal supervision of the criminal proceedings in accordance with the law, and stipulates that the people’s procuratorate shall notify the investigative organ to correct any violation of the law in their investigation activities. Particularly in the work of examining and approving the arrest and supervise whether the investigation activities of the investigation organs are lawful or not, but in the whole process of criminal proceedings, the cooperation between the public security organs and the procuratorates is better than restriction. Under the guidance of the mission of fighting crime together and the value orientation of punishing crime and prosecuting guilt, some procuratorates pay no attention to the illegal behaviors in collecting evidence by the investigative departments.

3.3 The Power of Approving Arrest or Deciding Arrest

3.3.3.3

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Some Deviations in the Concept of Guidance

The implementation of arrest is to ensure the smooth progress of the criminal proceedings and to protect the personal liberty and property of the majority of persons against arbitrary violations at the expense of the physical freedom of the suspects and the restriction of their human rights. It can also be used artificially or wrongly and becomes the tool of infringing the human rights.60 In practice of China, the judicial organs often simply emphasize that arrest is an important means to guarantee the litigation and punish crimes, without fully considering that the arrest should get a balance between the judicial authority and the human rights protection in the term. Under the influence of the concept of “stressing strike, less protection” and the idea of presumption of guilt, law enforcement agencies are accustomed to arresting the person first. Indeed, hundreds of years ago, Lester, founder of the School of Criminal Society, argued: The purpose of the penalty is to protect the individual’s life, body, property, freedom, reputation and the existence, security and domination of the State; that is to say, the punishment is aimed at preventing the recidivism and defending the society. Only “the protection of legal benefits” or “the social defence” is the purpose of punishment and the justification of punishment.61 Therefore, the application of arrest as a coercive measure should also have reasonableness and legitimacy. The improper use will undoubtedly bring the disastrous effects and serious consequences to the wronged individuals and the whole society. In practice, under the guidance of the wrong concept of law enforcement, the phenomenon of false arrest is rather common and the common people have long been accustomed to it. Consequently, the judicial authority has lost the trust of society. The problems of approving arrest have led to the abuse of the arrest measure, and the adverse consequences of the abuse have been multifaceted: From the social point of view, it will inevitably lead to the unnecessary detention of criminal suspects, resulting in greatly increased the cost of litigation and resulting in the unnecessary waste of judicial resources. From the suspect’s point of view, once arrested, he lost his personal freedom and suffered a great deal of mental and physical harm as well as his human rights were also unnecessarily violated. At the same time, it was not possible for the criminal suspects to collect their own defense materials and evidence to achieve the realization of justice. In addition, the criminal suspects who do not need to be arrested were put in detention, this inevitably leads to the cross-infection and exchanges of criminal experience and means of committing crimes with other criminal suspects detained in the same room, especially for those juvenile suspects, the negative effect is more obvious. Finally, as the most severe coercive measure in the criminal proceedings, the arrest should be used in conjunction with other measures in order to obtain its maximum social benefit. “The penal system of any country is made up of various forms of punishment in order to achieve the best results of crime control. Since the resources invested by each State to control crime are always limited; therefore, it is required 60 61

Sun (2001, p. 127). Ma (1996, p. 196).

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to spend with minimum penalty cost to minimize crime.”62 Therefore, in reality, such severe coercive measures as the arrest should be used with caution, with little use and with no means, in order to truly play its function of preventing crime and making the criminal prosecution proceed smoothly. So, how to solve above problems in practice? I’d like to discuss it later in the allocation of the procuratorial power in China.

3.4 The Power of Investigation for Duty Crime Duty crime is a crime committed by the state functionaries with abuse or misuse of power in the process of exercising the state administrative power. Because of the particularity of the subject and objective behaviors of this crime, whose harm is higher than that of ordinary crimes. “Duty crime has become an important reason for social unrest and regime change in many countries because of its embezzlement of state property, destruction of public management order, corruption of government image and reputation as well as direct threat to the political power and social stability.”63 Therefore, in the fight against corruption all over the world, how to effectively punish duty crimes has always been an important and hot topic in each country. Due to historical and current reasons, in China, the duty crimes have been investigated by the procuratorial organs for a long time. However, such situation has been changed a lot in recent years.

3.4.1 Historical Evolution The power of investigation by the procuratorial organs in China is a little complicated. This will be considered in two stages: before 2018 and at present. Before the end of 2018, the power of investigation was an important function for the procuratorial organs in China and there was a General Bureau of Anti-corruption and Bribery in the SPP; this was duplicated in the procuratorates across the whole country. The paragraph 2, Article 18, of the CPL in 2012 stipulates: corruption and bribery crimes, crimes of dereliction of duty by state officials, crimes of infringing the citizens’ personal rights and democratic rights committed by the staff of the state organs by using their powers, such as illegal detentions, confessions by torture, retaliation and frame-breaking and illegal searches. For other major criminal cases carried out 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

62 63

Chen (2001, pp. 82 ~ 83). Zhu (2007, p. 125).

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case upon the decision of the people’s procuratorate at provincial level.64 Therefore, before October, 2018, the procuratorial organs had the power of investigating duty crimes, such as corruption, bribery, malfeasance of state functionaries and other crimes committed by the state officials. The procuratorial organs in China had the power to “control” the criminal conducts of public servants by direct investigation and prosecution. With such extensive power, the procuratorial organs across the country investigated 40,834 cases with 54,249 people totally of duty crimes in 2015. By resolutely implementing the CPC Central Committee’s decision making and deployment on the fight against corruption, and insisting on fighting the “tiger” and “fly” together with punishment and prevention,65 the procuratorial organs have made an important contribution to fighting against corruption. However, in recent years, China has implemented several important reforms, one of which is the establishment of the National Supervisory Commission (NSC), which, according to its mandate, should “strengthen supervision of all public office holders, fight corruption, help establish a modern state governance system and build a stronger governing capacity”.66 Such an institutional change will affect various aspects of the judicial system, especially the procuratorial system. With such a major reform, whose purpose was to concentrate all forces to fight against corruption and the misuse of power. Administrative service and anti-corruption personnel of the procuratorial organs have been transferred to the NSC by the end of 2018. We have to admit that the reform of the supervision system has a great impact on the procuratorial organs and the reorganization of their functions.

64

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. 65 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. 66 As stated in Article 1 of the Law of Supervision.

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3.4.2 Detailed Contents However, in accordance with the stipulations of the most recent amendments to the CPL on October 26, 2018, the Article 19, paragraph 2 has a new definition of the connotation and extension of the procuratorial organs’ power of investigation.67 The investigative power is a combination of the three powers, which is the investigative power of duty crime, discretionary investigation power (机动侦查权) and the supplementary investigative power. In addition to the investigation power of duty crimes, the mobile investigation power and supplementary investigation power can be applied to all criminal crimes. The following will describe these three different investigative powers in detail.

3.4.2.1

The Investigative Power of Duty Crime

After the major reform of supervision system, at present, the vast majority of duty crimes are investigated by the supervision commissions at all levels, and the procuratorate is only responsible for the reviewing and prosecuting these cases. However, the procuratorial organs retain a small part of the investigation power of the duty crime that infringe upon civil powers and damage judicial fairness committed by the judicial personnel who misuse their powers. The paragraph 2 of Article 19 of the Revised CPL in 2018 stipulates that “In the process of legal supervision over litigation activities by the people’s procuratorate, illegal detention, extorting confessions by torture, illegal search and other crimes that infringe upon civil powers and impair judicial justice committed by the judicial staff by taking advantage of their functions and powers may be put on file for investigation by the people’s procuratorate. When a major criminal case committed by a functionary of a state organ under the jurisdiction of a public security organ by taking advantage of his functions and powers needs to be directly accepted by the people’s procuratorate, the people’s procuratorate may file a case for investigation upon the decision of the people’s procuratorate at or above the provincial level.” In accordance with such stipulations, at present, there are total 14 crimes directly investigated by the procuratorial organs, such as illegal detention, torture and illegal search. The question is how to adapt to such a major change and “how to open a window after closing a door.” Following this change in the law two years ago, the procuratorial organs have been exploring the impact of such change. In 2020, a total of 1421 crimes of violating civil rights and harming judicial justice committed by

67

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.

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the judicial staff with taking advantage of their functions and powers were filed and investigated, a year-on-year increase of 63.1%.68

3.4.2.2

The Mobile Investigative Power

For a long time, the power of mobile investigation has been regarded as an important way for the procuratorial organs to perform their duties of legal supervision. The paragraph 2 of Article 13 of the CPL of 1979 stipulates: “the people’s procuratorate shall file a case for investigation and decide whether to initiate a public prosecution for the crime of corruption, the crime of infringing upon the citizens’ democratic rights, the crime of dereliction of duty and other cases that the people’s procuratorate deems necessary to be directly accepted by itself.” This is the earliest legislative expression of mobile investigation power. From the provisions at that time, there were no too many restrictions on the initial scope of application and launching procedures of mobile investigation power, just as the procuratorial organ “deems it necessary.” This provision mainly stems from the fact that the procuratorial organ in China is a national legal supervision organ, which has strong independence in the organizational system and provides an external organizational guarantee for it to undertake the investigation power of duty crimes. At the same time, the purpose of the investigation and prosecution of duty crimes by the procuratorial organ is also to ensure the correct implementation and unified compliance of laws and regulations in the duty activities of public servants. In essence, it is the legal supervision of the duty activities of public servants, which also effectively conforms to the functional orientation of the procuratorial organ as a special legal supervision organ. However, the Management System for Criminal Cases Directly Accepted by the People’s Procuratorate (for Trial Implementation) issued by the Supreme People’s Procuratorate in March 1986 also included other crimes such as tax evasion, counterfeiting of trademarks and major liability accidents which are not duty crimes into the scope of self-investigation cases of the procuratorate. This expansion mainly stems from the close combination of these economic crimes and the power just like duty crimes. Due to the improper expansion of the procuratorate’s self-investigation power in practice, many scholars have criticized and questioned it. Therefore, in the process of amending the CPL in 1996, they advocated the necessary limitation of the procuratorate’s investigation power, which was adopted by the legislature. So, the CPL of 1996 stipulates in the paragraph 2 of Article 18: “The crimes of corruption and bribery, crimes of dereliction of duty by the state functionaries, crimes of violating the citizens’ personal rights by illegal detention, extorting confessions by torture, retaliation and framing, illegal search and crimes of violating the citizens’ democratic rights committed by the state functionaries with taking advantage of their functions and powers shall be filed for investigation by the people’s procuratorate. 68

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.

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When other major criminal cases committed by the state functionaries of organs by taking advantage of their functions and powers need to be directly accepted by the people’s procuratorate, the people’s procuratorate may file the case for investigation upon the decision of the people’s procuratorate at or above the provincial level.” This limitation is mainly reflected in two aspects: Firstly, it is clearly required that the subject of dereliction of duty, crimes against the citizens’ personal rights and crimes against the citizens’ democratic rights can be filed for investigation by the procuratorate only when it is a state functionary and its crime has made only by taking advantage of his functions and powers. The abovementioned crimes committed by the subjects other than state functionaries shall be filed by and under the jurisdiction of the public security organ. Secondly, it strictly limits the mobile investigation power of the procuratorate from the procedural and substantive perspectives. The crimes involved in mobile investigation usually do not belong to the cases which are made and investigated by the procuratorate. Only because the public security organ is inconvenient to exercise the jurisdiction, the procuratorate, as the national legal supervision organ, is allowed to exercise the jurisdiction over such cases. From the substantive point of view, the requirement is that only in other major criminal cases committed by the state functionaries of organs by taking advantage of their functions and powers can the procuratorate have the possibility to use the mobile investigation power. In terms of the subject of crime, it is required to be the state functionaries of organs, and in terms of the type of behavior, it is required to be other major criminal cases committed by taking advantage of their functions and powers. This means that there is no space for the procuratorate to apply the power of mobile investigation in criminal cases committed by those who are not state functionaries of organs or by the state functionaries who have not taking advantage of their functions and powers. From the procedural point of view, the application of mobile investigation power by the procuratorates shall be decided by the procuratorate at or above the provincial level. The procuratorates at county, district and prefecture levels can apply the mobile investigation power only after the approval and decision of the procuratorate at or above the provincial level. When the CPL of China was revised in 2012, the scope of cases filed and investigated by the procuratorate was not adjusted or modified, and the expressions and contents of the CPL in 1996 were still used. This is mainly due to the fact that the scope of cases filed and investigated by the procuratorial organ has been proved to meet the needs of punishing crimes and protecting human rights through years of practice. In November 2016, China began to carry out the pilot work of national supervision system reform in Beijing, Shanxi Province and Zhejiang Province, integrating the functions of punishing duty violations of discipline and duty crimes originally undertaken by the Discipline Inspection Commission, Administrative Supervision Organs and the procuratorial organs into the national supervision commission. In March 2018, the National People’s Congress voted to pass the Supervision Law, which upgraded and solidified the achievements and experiences of the national supervision system reform into the relevant law systems. The Supervision Law establishes

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the basic principle of "full coverage" of the national supervision commission for the investigation and disposal of public servants’ violations of discipline, law and duty crimes. This "full coverage" includes not only the full coverage of the types of investigated acts, but also the full coverage of the types of investigated persons. In accordance with such stipulations of “full coverage,” the duty crimes committed by the state functionaries of organs with taking advantage of their functions and powers should also fall within the jurisdiction of the supervision commission, which may lead to the conflict of jurisdiction over the filing of duty crimes between the supervision commission and the procuratorate. Therefore, in order to avoid such contradiction and conflict, the amendment to the CPL passed by the Standing Committee of the National People’s Congress in October 2018 further limits the mobile investigation power of the procuratorate, which is mainly to ensure the effective connection between the Criminal Procedure Law and the Supervision Law. Specifically, the scope of case filing and jurisdiction of the procuratorial organ mainly has the following characteristics: Firstly, the subject of crime must be judicial staff. From the 14 crimes entrusted to the procuratorate by the CPL in 2018, the subjects of crimes include both the general one and special one, but the procuratorate can only file and deal with such crimes committed by the judicial staff. Secondly, these crimes are closely related to the legal supervision responsibility of the procuratorate over litigation activities. As the legal supervision organ in China, the procuratorate has the responsibility of legal supervision over litigation activities and can carry out the legal supervision over litigation activities in various stages, such as case filing, investigation, trial and execution. These 14 crimes cover all stages of litigation activities. Thirdly, the procuratorate can select to file and investigate this part of duty crimes. In accordance with the stipulations of the paragraph 2 of Article 19 of the CPL, the procuratorate “may” file a case for investigation for the above-mentioned duty crimes committed by the judicial staff. The word of “may” means that the procuratorate can file a case for investigation or not. This expression gives the procuratorate greater choice and discretion when deciding to file a case for investigation and also makes it possible for it to abandon its jurisdiction over the above cases and transfer it to the supervision commission for filing jurisdiction. Fourthly, the jurisdiction of mobile investigation is limited to major crimes committed by state functionaries of organs under the jurisdiction of “public security organs.” This means that the procuratorial organ can only exercise the power of mobile investigation in cases under the jurisdiction of the public security organ, while it cannot apply it in cases under the jurisdiction of other state organs, such as the State Supervision Commission.69

69

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

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3.4.2.3

The Supplementary Investigative Power

The supplementary investigation is a litigation activity to further find out the facts and supplement and improve the evidence on the basis of the original investigation according to the legal procedure, which is an important system in the CPL of China. The supplementary investigation system has a great value, which is an important carrier of the procuratorial power and provides the necessary guarantee for realizing the purpose of investigation activities. Since the supplementary investigation system was first stipulated in the CPL of China in 1979, the supplementary investigation system has been running for more than 40 years. During this period, the connotation of the supplementary investigation system has been enriched and the practice has been deepened gradually, which has played an important role in the system. In March 2020, in order to further strengthen and standardize the supplementary investigation work, the SPP and the Ministry of Public Security jointly formulated and issued the Guiding Opinions on Strengthening and Standardizing the Supplementary Investigation Work, which systematically guides and standardizes the supplementary investigation work for the first time, making a new development of the supplementary investigation system. The supplementary investigation system is applicable to the different procedural stages, whose contents are also different. With the reform of national supervision system and the amendment of the CPL in 2018, the pattern of supplementary investigation system has changed a little. I’d like to introduce it in different stages briefly. (1)

Supplementary Investigation in the Investigation Stage

As mentioned above, the arrest approved and decided by the people’s procuratorate in the investigation is the Chinese model of the arrest review system, which is the most distinctive point. In accordance with the Article 90 of the CPL and the Article 299 of the RCPPP amended in 2019, the procuratorial organ reviews the cases transferred by the public security organ or the department in charge of arrest and prosecution of the procuratorate, or the cases transferred by its department in charge of investigation, considering that the existing materials and the evidence cannot fully prove the necessity of arrest, they have the power to refuse the approval and decide not to arrest. If it is necessary to make supplementary investigation, they shall notify the public security organ or its department in charge of investigation to conduct the supplementary investigation. This is the supplementary investigation in the investigation stage. The purpose of such supplementary investigation requested by the procuratorial organ is that the public security organs and the department of investigation of the procuratorate continue to add evidence and materials to further confirm the necessity of arresting suspect. On the one hand, after the supplementary investigation, the arrest of the suspects who are really necessary to be arrested should be applied in time to ensure the smooth progress of the proceedings. On the other hand, through supplementary investigation, it can prevent the false arrest and improper arrest and protect the legitimate rights and interests of suspects effectively. If it is necessary to conduct the supplementary investigation, in practice, the procuratorial organ shall make an

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outline of the supplementary investigation, specify the contents, the evidence to be collected and its role of proof, then notify the public security organ to do it. If it is the investigation department of the procuratorate, the practice is the same. (2)

Supplementary Investigation in the stage of Reviewing and Prosecution

In the stage of reviewing and prosecution, the procuratorial organ shall review the case which is to be prosecuted and make the corresponding decision. In accordance with the paragraph 2 of Article 175 of the CPL in 2018, if the people’s procuratorate reviews a case and it is necessary to do the supplementary investigation, it may return the case to the public security organ for supplementary investigation or conduct the investigation on its own. This supplementary investigation is limited to twice. After the second supplementary investigation, if the people’s procuratorate still considers that the evidence of the case is insufficient and does not meet the requirements for prosecution, it shall make a decision not to prosecute it. The purpose of supplementary investigation applied by the procuratorial organ in the stage of reviewing and prosecution is: firstly, to further find out the facts of the case and supplement and improve the evidence; secondly, to find out the missing crimes and suspects. According to the principle of separation between the prosecution and trial, the prosecution content of the procuratorial organ is the scope and basis of the court’s trial. The purpose of supplementary investigation to fill the missing crimes and accomplices is to fully realize the state’s power of prosecution and prevent the indulgence of crimes; thirdly, to strengthen the protection of human rights. Through the supplementary investigation, the procuratorial organs further find out the situations of the case, make a decision not to prosecute those who should not be responsible for the criminal responsibility in accordance with the law so as to prevent the citizens from being wrongly accused and prosecuted with strengthening the protection of human rights in judicial process. There are two forms of supplementary investigation in the stage of reviewing and prosecution: One is to return the case for supplementary investigation; the other is self-supplementary investigation. Among them, the former is the most applicable one in practice, which has an important impact on the overall operation of the supplementary investigation system. In order to maintain the normal order of handling cases and prevent the excessive delay of procedure, the CPL and RCPPP also stipulate that the time limit for returning the case for supplementary investigations is within one month and twice at most. (3)

Supplementary Investigation in the Trial Stage

In accordance with the Article 204 of the CPL, in the process of the court trial, if the procuratorial organ finds that a case for public prosecution needs supplementary investigation, it may put forward suggestions, and the court may postpone the trial. The Article 420 of the Rules further refines this provision, which is to “find facts unclear, lack evidence, or omit the crime and the suspect of the same case, it is necessary to conduct the supplement investigation or supplement evidence,” and “the

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defendant exposes others’ criminal acts or provides important clues, which needs the supplementary investigation to be verified.” The supplementary investigation in the trial stage can only be carried out by the procuratorial organ itself, which not only puts forward a great test for the procuratorial organ’s ability to collect supplementary evidence, but also provides an important way for the procuratorial organ to strengthen the procedural supervision. The time for supplementary investigation shall not exceed one month.70 Thus, supplementary investigation is not a necessary procedure in criminal cases, but it has procedural value and significance that cannot be ignored. The power of supplementary investigation of the procuratorial organ in China can further check and find out the facts of the case, supplement and improve the evidence, investigate and prosecute the missing crimes so as to ensure the effect of prosecuting the crimes and promote the implementation of procedural supervision.

3.4.3 How to Connect the Three Kinds of Investigation Powers Organically The first is the reconstruct of the traditional self-investigation power of the procuratorial organs, making it clear that the object of exercising self-investigation power is that the judicial staff by taking advantage of their functions and powers to commit the illegal detention, extorting confessions by torture, illegal search and other crimes that infringe upon civil powers and impair judicial justice. The second is to reduce the scope of the power of mobile investigation into major crimes committed by the staff of the state organs; the third is that when a major criminal case committed by an official of the state organ under the jurisdiction of a public security organ by taking advantage of his functions and powers needs to be directly accepted by the people’s procuratorate, the people’s procuratorate may make a case for investigation upon the decision of the provincial people’s procuratorate at or above the provincial level. The fourth is to adjust the scope of the supplementary investigation power of the procuratorial organs. In addition to the cases transferred by the public security organs for review and prosecution, if the procuratorial organ believes that the supplementary investigation is necessary, it can supplement the investigation by itself. At present, if the case of duty crime transferred by the Commission of Supervision for prosecution, the procuratorial organ may supplement the investigation if necessary. Finally, the Guiding Opinions clarify the situation that the procuratorial organs can supplement the investigation by themselves and avoid the vacancy and marginalization of the procuratorial organs’ power to supplement the investigation by themselves to a certain extent. At the same time, after the power and function of anti-corruption transferred, at present, the procuratorial organs at all levels should consolidate and 70

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

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improve the investigation ability, increase the confidence in applying the investigation power and ensure the effect and efficiency of investigation so as to give full play to the legal supervision function of the investigation power of the procuratorial organ in China.

3.5 Nature, Independence and Allocation of the Procuratorial Power The core issue of the procuratorial system is the procuratorial power. The essential nature of the procuratorial power is closely related to the procuratorial system of a country, which decides the independent degree of the procuratorial power and the allocation of the procuratorial power. Only by objectively understanding the essential nature of the procuratorial power in China can we reasonably allocate the functions and powers of the procuratorial organs according to the nature of procuratorial power and the law of procuratorial work, exercise the procuratorial power more efficiently, better safeguard the judicial justice and better serve the overall situations of China. Therefore, this section mainly discusses the essential nature, independence and allocation of the procuratorial power in China.

3.5.1 The Nature of the Procuratorial Power The nature of procuratorial power refers to the position of procuratorial power in the structure of state power and its attribution in the division of state power, which is the fundamental attribute that determines its role in the state management activities.71

3.5.1.1

Related Arguments

As for the nature of procuratorial power in China, there have been many controversies in the academic circles over the past ten years, and the various viewpoints have appeared.72 In summary, there are four main concerns: first, “the theory of the power of legal supervision,” which holds that the procuratorial power of China belongs to the power of legal supervision, this is based on the Constitution and the procuratorial organ of China is the legal supervision organ. Therefore, fundamentally speaking, the 71

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.

72

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procuratorial power of the procuratorial organs in China is one of legal supervision; this is an important part of the structure of state power. The Constitution of China empowers the procuratorial organ with the duty of legal supervision. This realizes the supervision and balance of the State power, and it is not only the realistic need of building socialism with Chinese characteristics but positions the procuratorial power as one of legal supervision, which determines the essence of socialist system and the state system of government in China; the second one is the “theory of judicial power,” which holds that procuratorial power and judicial power have similar attributes. In essence, the procuratorial power is a type of judicial power, and that the judicial power in China is composed of the jurisdiction power(审判权) and the procuratorial power;73 The third one is the “theory of administrative power,” which holds that the procuratorial power belongs to the administrative power, on the grounds that the procuratorial power has certain administrative power attributes, such as the organization system and the leading system of the procuratorial organs are the same as that of the administrative organ, and the operation mode of “procuratorial integration” has obvious administrative characteristics. In addition, the procuratorial power also does not have the passive, neutral and final character of the judicial power;74 The fourth one is the “theory of dual attributes,” which holds that the procuratorial power has the dual attributes of executive power and judicial power, which can be called “the special administrative power” or “the quasi-judicial power,” since the procuratorial power not only has certain independent and adjudicative characteristics of the judicial power, but also has the superior subordinate and organic characteristics of the administrative power.75 Each of the above four statements makes sense, but in contrast, it is more in line with the specific national conditions of China to position the procuratorial power as a power of legal supervision. It is observed that the procuratorial organs of China and the equivalent service in other countries have different powers and their own uniqueness. Moreover, if there is a division of judicial power and executive power under the system of separation of powers, and it does not coincide with the political system of the people’s Congress system in China. Actually, the different understanding and orientation of the nature of the procuratorial power not only directly affects the position of the procuratorial organs in the national constitutional system, but also directly affects the allocation of the procuratorial power in China. Since “the procuratorial power is not the original sense of the executive power, and is also not the complete sense of the judicial power, as well as it is not a simple mixture of the two powers.“76 In China, the procuratorial power is the general name of all kinds of powers entrusted by the Constitution to the procuratorial organs to exercise the procuratorial duties. An accurate interpretation and operation of this power are needed to make a reasonable analysis and understanding of the nature of the procuratorial power in China. 73

Tan (1999, p. 12). Hao (1999, pp. 71–72). 75 Chen (2000, p. 691). 76 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. 74

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Administrative Characteristics of the Procuratorial Power

The way of exercising the procuratorial power in China is embodied in the following aspects: Firstly, the procuratorial organs of China implement the power structure, management mode similar to the administrative organs; that is to say, the superior has the power to direct and lead the subordinate, and the inferior has the duty to be subordinated and obey. The organization system of the procuratorial power and the operation mode of “integration” have administrative characteristics. The general director and the superior prosecutors have the power to handle cases that are dealt with by the lower prosecutors. If the prosecutor in charge of the case does not handle it continuously, it does not interrupt and affect the procedure and effect of the case being handled, he may also be replaced by another prosecutor in court in support of prosecuting, which does not produce any effect of the case in the procedural law. This kind of hierarchical leadership between the upper and lower relationships and the replaceability of duty embody the administrative methodology of the procuratorial power. Secondly, the procuratorial power has distinct administrative characteristics, such as the investigation power of duty crime. When exercised, it has a clear purpose within a strict organization. It is necessary to emphasize the efficiency and effectiveness of investigation. The investigators need to direct their service investigative forces to carry out the investigation procedure in exercising their functions and powers. This is not fundamentally different from the investigation of criminal cases by the public security organs. The purpose and organization of the investigation power for duty crime show the obvious administrative characteristics.77

3.5.1.3

The Judicial Characteristics of the Procuratorial Power

Although the procuratorial power in China has a strong administrative function in the way it organizes and operates within its functions. The procuratorial organs within the socialist country have completely separated from the administrative organization which produces a parallel position within the executive of the state system. The procuratorial organs have no organizational connection with the executive organs and the administrative power cannot organizationally constrain it.42 Therefore, it cannot be considered that the procuratorial power does not have executive power to realize judicial value and the nature of the power of public prosecution with a judicial nature. The fundamental value goal of the procuratorial power is to realize the judicial justice and social justice, which is consistent with the ultimate goal of the jurisdiction power. The procuratorial organ initiates the prosecuting procedure as part of the whole criminal procedure system, the prosecutor is independent when examining and reviewing the prosecution, and whose judgment decides whether to make the prosecution or not. The public prosecutor represents the interests of the state. In the criminal proceedings, when performing his duties, he must apply the law, follow 77

Xu (2000, pp. 58–63).

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the principle of objective obligation and act in accordance with the judicial rules of responsibility and autonomous handling of cases, which undoubtedly reflects the judicial character of the procuratorial power. Because the procuratorial power of China has both the character of executive power and judicial power, having both legal and authoritative characteristics. These characteristics of initiative and tendency are a kind of procedural power. Similarly the subject of exercising the procuratorial power, the legal attribute of the prosecutor in China is to exercise the characteristics of both administrative and judicial, and whose dual character is determined by the special nature of the procuratorial power. The arguments about the legal attributes of prosecutors in China are always closely related to the nature of the procuratorial power; the prosecutor becomes an empty symbol without the procuratorial power. Therefore, the procuratorial power of China is positioned as the power of legal supervision, and accordingly, the prosecutor of China becomes the officer of legal supervision, who is a judicial officer acting on behalf of the state just like judges, their ultimate objective being to perform duties in order to achieve the justice and fairness.

3.5.2 Independence of the Prosecutors The independence of China’s prosecutors makes them different from the stipulations in other countries. In China, although the procuratorial organs have more functions, they emphasize the independence of the procuratorial organs rather than the independence of the prosecutors. Although it is reasonable in China to position the prosecutor as a post rather than an office, the prosecutor lacks the independence and enjoys far less discretion than the prosecutor in common law countries, such as the prosecutor in Australia. Australia is a federation. So, it has two systems of prosecution service, Federal and State. Australia consists of six states and two territories, whose Constitution gives the States and Territories autonomous power, while it imposes more restrictions on Federal power. The first prosecution agency in Australia was Victoria and its Office of Public Prosecutions was established in February, 1982. After it, other states founded their offices of public prosecutions, and the powers that the prosecutors can enjoy are almost the same. They are mainly the public lawyers who are responsible for prosecuting the criminal cases. Although the functions and powers of the “prosecutorial services” in Australia are similar, the prosecutor is independent and enjoys greater discretion. For example, the State of New South Wales, which is the largest state in Australia, the Crown Prosecutor of this state has the power to decide whether to prosecute a case independently, the Director of public prosecutions (the DPP) may provide guidance to the Crown Prosecutor on the prosecution of a case, but not on a particular case. In many ways, the Crown Prosecutor is an independent lawyer, only in the name of the DPP. In accordance with the stipulations of the Article 5 of the Crown Prosecutors Act 1986, the functions of a Crown Prosecutors are as follows:

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to conduct and appear as counsel in, proceedings on behalf of the Director, to find a bill of indictment in respect of an indictable offense, whether or not the person concerned has been committed for trial in respect of the offense, to advise the Attorney General or Director in respect of any matter referred for advice by either of them, and to carry out such other functions of counsel as the Attorney General or Director approves.78

It should be emphasized that, as a Crown Prosecutor, he/she does not have the function of determining that no bill of indictment be found or directing that no further proceedings be taken against a person. In addition, all functions of a Crown Prosecutor shall be exercised in the name an on behalf of the Director. For example, in the system of Charge Negotiation and Agreement, in which the Crown Prosecutor may decide, on the basis of the evidence in the case, whether to decide on negotiating with the accused and whether to initiate the procedure of Charge Negotiation and Agreement. Therefore, while Australian prosecutors, although by their nature, are classified as the administrative officers, as are prosecutors from other Common Law countries, whose work in practice is not overly administrative, but rather independent with considerable discretion.79 So, as I mentioned earlier, the extent to which a State’s prosecutors enjoy the power, independence and discretion is really a complex issue that can be influenced by many factors.46 I have observed that since the reform of the quota control on prosecutors and the reform of the judicial responsibility system, the prosecutors in China have been much more independent than before, and their discretion has been expanded, especially in implementing the lenient system of accepting confession and Punishment. Although at the present stage, in China, it is reasonable to position the exercise of the procuratorial power independently as “the independence of the procuratorate,” but it is necessary to take the independence of the prosecutor as a direction to follow in the future development of the procuratorial system.

3.5.3 Reasonable Allocation of the Procuratorial Power The rational allocation of the procuratorial power, in short, refers to the powers that the procuratorial organs of a country should enjoy within the legitimacy and rationality of these powers. The rational allocation of the procuratorial power directly affects the achievement of justice. Generally speaking, the allocation of procuratorial power in China is reasonable and scientific at present, but it is undeniable that there are shortcomings in its operational practice. The reasons are various, such as the imperfect legislation, the 78 79

Crown Prosecutors Act 1986 No 208, New South Wales, Australia. As to the independence of a prosecutor in Australia, see Ji (2013, p. 135).

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non-standard factors in law enforcement, at the same time, there is no fully clear and comprehensive understanding of the legal supervision function of the procuratorial organs. As mentioned earlier, the procuratorial power, as a general term, refers to the power that the procuratorial organs or the prosecutors enjoy within the power of the state. However, how much and what kind of powers the procuratorial organs should have is a complex issue often influenced by a country’s judicial system, cultural traditions and power structure. So, there are no two countries in the world that have identical prosecutorial powers. Whether the disposition of the procuratorial power is reasonable mainly depends on whether it is suitable for the national conditions of the country. As to the procuratorial power in China, it has a complicated origin, the tortuous road of development and has been revised, especially in the past 40 years since the restoration of the procuratorial organs in 1978. Under the constitutional system of China, the procuratorial power is one of the three powers balanced with legislative power and executive power, which plays an important role in the process of realizing justice and safeguarding the social justice. To understand and define the nature, content and legal status of the procuratorial power, and how to allocate procuratorial power scientifically and reasonably, it involves the major theoretical problems of the allocation of state power. In addition, it also relates to the important practical problems, whether the role of procuratorial power can be played to the direction of the procuratorial reform. Since the functions and powers of the procuratorial organs in China are very different from that of most countries in the world, especially the prosecutorial services in Common Law countries, such as Australia. For decades, the academic circles in China have launched a heated discussion on the nature of the procuratorial power in China and the rational allocation of those powers. Among those debated issues, the most controversial one is the power to approve and decide the arrest, which is the most different from the prosecutorial power of other countries in the world.80 I have to say, in China, it is reasonable for the procuratorial organ to exercise the power of approving and deciding the arrest. However, in practice, it does encounter many problems. So, how to solve these problems effectively? I think that the most critical point is to divide arrest and detention into two stages. Such view is elaborated as follows.

80

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.

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Arrest from a Comparative Perspective

A careful analysis of various problems encountered in practice shows that many problems are not caused by the power of arrest itself, but are due to the lack of relevant links in the system’s design. Actually, comparing the arrest measures in Western countries, the provisions in China are much stricter. However, in China, the arrest and detention are combined together in the procedural design, once the suspect is arrested, following an indefinite detention. In Western countries, the arrest is only a means to force the suspect to be interviewed, which may result in a period of personal imprisonment prior to a bail application. The same word “arrest” has very different meanings. In Common Law countries, the arrest is divided into two kinds: arrest with warrant and arrest without warrant. The arrest with warrant means that the arrest should be reviewed and approved by the Magistrate, while the arrest without warrant can be carried out directly by the police or the common people. In Italy, its Civil Law provides that the judicial police have the power to directly arrest a perpetrator, while the prosecutor approves the arrest of a suspect other than an active offender. In Germany, the arrest is divided into two categories: One is “the provisional arrest” by the prosecutor and the police themselves, the other is the arrest made after a judge issuing a detention order. In Japan, the arrest is divided into three categories: “ordinary arrest,” “emergency arrest” and “arrest of an active offender,” of which only the “ordinary arrest” is reviewed and approved by a judge upon the application by the police or the prosecutor.81 Application of arrest in Western countries is subject to different procedures in different situations, only the more formal arrest is provided for the application of judicial review, while in emergency situations, especially for active offenders, the application of the model of arrest without a warrant is extensive. At the same time, the arrest and detention are set as two separate procedures under different conditions in Western countries, and the arrest and the detention should be reviewed independently and respectively. In addition, in response to the need to combat crimes and investigate them, there are increasing exceptions to the review of arrests. In many Civil Law countries, during the initial stage of investigation, the arrest or detention is mostly regarded as a part of the investigative activities without the authorization of the judicial officials. As stipulated in Article 63 of the Criminal Procedure Code of France: “The judicial police may, for purposes of investigation, detain one or more of the persons specified in Article 61 and Article 62 and report to the public prosecutor of the Republic in the shortest possible time. The detention shall not exceed 24 h.”82 The Article 380 and Article 381 of the Criminal Procedure Code of Italy also provide for two situations in which the arrest can be carried out on the spot without the approval of the public prosecutor, such as “must be arrested on the spot” and “can

81 82

Chen (2003, p. 162). He (2000, p. 370).

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be arrested on the spot,” respectively.83 At the same time, the paragraph 3 of Article 386 of the Code provides: “If the hypothesis provided for in Article 389, paragraph 2 does not occur (i.e., in the event of a detention or arrest error, the arrested or detained person shall be released immediately), the judicial police and police officers shall place the arrested person at the disposal of the public prosecutor as soon as possible and in any case not later than 24 h from arrest or from detention. Within the same term, they shall transmit the related report, also electronic documents, unless the public prosecutor authorizes a longer extension.84 So, it is not difficult to see that the above-mentioned countries, while giving the police the power to make their own arrests, impose certain obligations on them, that is, the arrested person must be brought before a judicial officer as soon as possible and the judicial officer should review the legality of such arrest and the necessity for detention, which is a situation of post review. The “arrest with warrant” in the United Kingdom and the United States of America, or the “ordinary arrest” in Japan, is the case of prior review. That is to say, the judicial officers review the legality and necessity of the arrest applications made by the police or prosecutor first, and if they agree to arrest, then issue a warrant for arrest; otherwise, they will not authorize the arrest. Thus, while the conditions applicable to arrest and judicial review vary from country to country in the West countries, the need for detention after arrest and the length of detention must be subject to the judicial review, which is a universal requirement. And the police or prosecutors are also required to bring the suspects before magistrate within the shortest possible time after arrest. Such as the stipulations of 41-(1) of Police and Criminal Evidence Act 1984 in Britain: “Subject to the following provisions of this section and to Sects. 42 and 43 below, a person shall not be kept in police detention for more than 24 h without being charged.” At the same time, the Sect. 42-(1) of this Act provides for situations where the detention can be extended with reasonable authorization: “Where a police officer of the rank of superintendent or above who is responsible for the police station at which a person is detained has reasonable grounds for believing that—

83

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. 84 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.

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the detention of that person without charge is necessary to secure or preserve evidence relating to an offense for which he is under arrest or to obtain such evidence by questioning him; an offense for which he is under arrest is a serious arrestable offense; and the investigation is being conducted diligently and expeditiously, he may authorize the keeping of that person in police detention for a period expiring at or before 36 h after the relevant time.”

In other words, under this Act, the duration of custody made by the police with his discretion may not exceed 36 h after the arrest of the suspect. In the USA, in most States and Federal, if the arrested suspect is still not brought before the judge after 6 h, the voluntariness of his confession is likely to be suspected. At the same time, the suspect in custody may urge for a hearing as soon as possible. Moreover, when reviewing the legality and necessity of detention, the judicial officials usually go through hearings or interrogation, listen to the evidence of criminal suspects, defenders, police and prosecutors, then make a ruling on whether to detain and how long they are in detention. In Western countries, the power of approving arrest is not always exercised by a neutral judge, but whether the arrest is carried out at the discretion of the police, the prosecutor or with the prior approval of the judicial officer, the maximum period of time between the arrest and the submission to the judicial officer shall not exceed 72 h, the British stipulation, not exceeding 36 h; the French, not exceeding 24 h and the Japanese, not exceeding 72 h. Thereafter, it is up to the judge to decide whether to retain the accused in custody or be released on conditional bail. However, there is little such widespread application of the arrest measure in China. Since once arrested, the detention may be for months or even years.

3.5.3.2

The Real Meaning of Arrest in China

From the above comparison, it is obvious that the real meaning of arrest in China is different from that in Western countries. Meanwhile, it can be seen that there are shortcomings in the procedural design of China. In a sense, the arrest in China is actually a disguised detention decision, which is essentially different from the arrest measure of most other countries in the world. But from the arrest itself, the purpose of setting up the arrest procedure is only to restrict and supervise the power of prosecution. From the above description, it can be seen that in Western countries, the arrest is approved by both the prosecutor and the judicial officer, the essence of which is to divide the powers in order to achieve the balance of different powers. So, it is not a key issue which organ exercises the power of approving arrest. Unlike the prosecutorial system in the Anglo-American law countries, in China, the procuratorial organs are specific organs of legal supervision. Therefore, it is reasonable and legitimate for the procuratorial organ to exercise the power of approving arrest, which is what I have outlined. The key issue is whether the detention continues after arrest and the length of detention is usually determined by the

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judicial officer in Western countries. This is an indispensable procedure under the current judicial system in China. However, “in China, the detention is not a separate criminal coercive measure, but is combined with the arrest and directly attached to the arrest.”85 Once the arrest is decided, it means a long period of detention. Therefore, when examining the legitimacy and necessity of arrest, the procuratorial organs in China should be cautious and strict as those judicial officials in Western countries, particularly examining the reasons and necessities for detention. In Western countries the law provides a statutory time for reviewing arrests is relatively short. In China, with a criminal suspect detained, the period for reviewing the case is 7 days, and for the criminal suspect who has not been detained, the time limitation is 15 days. Therefore, many prosecutors who have been engaged in arrests for many years think that the time for reviewing the arrest evidence is too short, and they don’t have sufficient time to conduct a comprehensive review of the case and case files or interrogate the suspects. Under the circumstances, this work can only be completed with many years of work experiences and skilled techniques in handling cases, which may be a limitation.

3.5.3.3

Separation of Arrest and Detention in the Procedural Design

Therefore, in order to make up for the shortcomings in the design of the procedure for approving arrest, I put forward the view that the arrest should be separated from the detention and designed them in two procedural stages in a paper “On the Rational Allocation of the Power to Arrest” which was published in 2011.86 In addition, it should also further stipulates that after approving the application for arrest by the investigation organs, the procuratorial organs should review the detention from time to time to determine whether it is necessary to continue detention and the length of the detention period. Such review can be done by holding a hearing to allow criminal suspects, defenders, police, etc. to participate and debate together, then make a decision on the legitimacy and necessity of detention, so that the various problems related to the arrest process and the prolonged detention that have been plaguing the procuratorial organs can be solved quickly. Since in China, the arrest in practice, in addition to the original intention of the legislation to ensure the smooth progress of criminal proceedings, it also plays a more important role, for example a judge in a local court said: “even if it is possible to impose a case of misdemeanour of less than three years, after prosecution to the court, if the criminal suspect is not in custody, we will decide to arrest him; otherwise, we will not know of his whereabouts. Once the suspect is detained, the accused is secured and the mediation will be easier.” This is the multiple roles that the arrest plays in 85

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. 86 Ji (2011, pp. 93~97).

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reality, and the scholars sitting in the library and writing articles cannot appreciate the difference. If, as some scholar put forward, amend the Criminal Procedure Law,87 the conditions of arrest are changed to “may be sentenced to more than three years in prison,” it will be a disastrous consequence for the judges in reality.88 However, the revised Criminal Procedure Law in 2012 only accepted part of such view by adding the procedure of reviewing the necessity of detention, which is stipulated in the Article 93. Then, the Article 95 of the newly revised Criminal Procedure Law in 2018 provides the same stipulations by adding the time of dealing with such proposal, which is: “After a criminal suspect or defendant is arrested, the people’s procuratorate shall still review the necessity of detention. If it is not necessary to continue detention, it shall put forward the proposal to release or change the compulsory measures. The relevant organs should notify the people’s procuratorate of the results within ten days.” So, from a practical point of view, it is not feasible to improve the conditions of arrest in order to reduce the arrest rate. Perhaps it is a more feasible solution to separate the two procedures of arrest and detention. At the same time, since the period of arrest and detention in China is no less than that of short-term imprisonment, in the process of approving arrest, the criminal suspect has neither the right to question or challenge the arrest, nor the right to apply for reconsideration of the arrest decision. The entire arrest system lacks transparency, and the rights of criminal suspects and defendants cannot be fully guaranteed. Therefore, it is also a way out to solve this problem to hold a hearing on the reasonableness of whether to continue the detention after arrest. In recent years, the procuratorial organs in China have vigorously advocated the procuratorial hearing, which is an institutional innovation of the procuratorial organs in the new era, which means the active change of the judicial idea for handling cases, improvement of the way for handling cases, listening to opinions widely and acceptance from outside supervision. “From the work of hearing held by the local three-level procuratorates in China, the average number of hearings organized per month in the first four months of 2021 is more than 4000, more than half of the monthly average in 2020.”89 At the hearing, through faceto-face communication with the parties and the comments of the hearing members, the “zero distance” settlement of resentment, it has achieved a better result, such as closing the case with the dispute settled, the harmony among the people and the good political effect. It can be said that procuratorial hearing is also one of the important methods to solve the necessity of detention. In particular, it is worth mentioning that in 2021, the SPP launched a six-month national special activity to examine the necessity of detention by the procuratorial organs for three types of key cases (on going detention cases with a legal sentencing of less than three years of imprisonment, cases of private enterprises related with crimes and cases with application of reviewing the necessity of detention) and carried out a full process and full coverage review of the necessity of detention. According to the statistics released by the official WeChat of 87

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. 89 As to the more information of the procuratorial hearing, see Peng (2021, p.3). 88

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the SPP on December 14, 2021, from July 1 to September 30, 2021, the procuratorial organs across the country conducted a review of the necessity of detention for more than 264,000 people, and after review, decided or recommended not to detain more than 76,000 people, accounting for 28.85% of the total number of people who were reviewed during this special activity.

3.5.3.4

Supporting Procedures for Such Reform

Actually, besides the separation of procedure for the arrest and detention, there are several procedures to follow in order to correspond with such reform: (1)

There must be maintaining a balance between fighting crimes and protecting human rights.

For thousands of years, China’s traditional idea was to emphasize the supremacy of national interests and collective interests. When the personal interests and national interests conflict, what was advocated was the sacrifice of the personal rights and personal interests, which is being firmly rooted in the hearts of most legislative and judicial personnel. Regarding the relationship between cracking down on crimes and protecting the human rights of criminal suspects, the idea of “cracking supremacy” still occupies the main beliefs among law enforcement officers, with some think that protecting criminal suspects was protection of the bad guys. In fact, the criminal suspect is not necessarily proven. Even a person convicted of a crime is not necessarily guilty as there is the possibility of a wrongful conviction. Even if the person is guilty, he should have the rights as human beings of innocence. “One of the manifestations of human society’s progress towards civilization is the respect for human rights, not only for the human rights of law-abiding citizens in society, but also for those who violate or may violate the law. In a sense, the respect for the rights of ‘bad guys’ is more representative of the progress of social civilization than respect for the rights of ‘good guys’.”90 The relationship between arrest and human rights protection is very delicate. On the one hand, the purpose of the arrest is to limit the personal freedom of the suspect and to achieve the purpose of protecting the personal freedom, survival and property rights of other members of society. Alternatively, it may result in violation of the suspect’s human rights due to improper application of the power of arrest. On the contrary, sometimes in order to maximize the protection of legal rights such as the personal freedom of criminal suspects, it will hinder the smooth progress of investigations and litigation activities, which in turn makes the punishment of crimes and the protection of human rights an empty proposition. As the famous German scholar Rudolf von Jhering said: “Punishment is like a two-edged sword, if it is used inappropriately, then the country and the individual will be victimized.” 90

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.

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Therefore, the arrest is the most severe mandatory measure that restricts the personal freedom. Balance is the core issue of criminal proceedings. In the activities of criminal law enforcement, we must not only consider the fight against crime and protection of human rights, but also balance the interests of criminal suspects and defendants, the interests of victims and their relatives and the interests of society as a whole, so that the entire society is in a state of harmony. Therefore, we must realize a proper balance and harmony between punishing crimes and protecting human rights. “Harmony is the noble goal pursued by human beings in social life, and also the highest state that the life hopes to achieve in nature.” Therefore, “it should also be an inevitable development trend of the criminal justice to step toward harmony.“91 The abuse of arrest is undoubtedly a wanton violation of citizens’ human rights by the public power of the state. At present, the whole nation of China has been working hard to build a harmonious and beautiful society, although the word “harmony” has different meanings in the eyes of the common people and the state leaders due to different perspectives of thinking: The harmony understood by the common people is the harmony of survival and life, the provision of food and clothing, the harmony of the family and the simplicity of the folk customs. The harmony of leaders is the harmony of governance, that is, the harmony of governance ideas and foundation. But there is no doubt that “harmony” is the goal pursued by the officials and the common people. They have a common foundation, that is, the political environment of the society is just, the atmosphere of the whole society is refreshing, and the people live and work in peace and contentment. In the eyes of jurists, “a harmonious society must first be a society ruled of law, and the core content of the rule of law is to limit the power of state organs.”92 Therefore, as a special legal supervision organ, the procuratorial organ should enforce the law fairly, put the people first and protect the human rights of citizens in accordance with the law, by establishing an idea of criminal rule of law. This may be achieved by correctly pursuing a low rate of arrests, using the compulsory measure of arrest prudently and as little as possible with the procuratorial organs’ contributions to the realization of a harmonious society that the humans beings are diligently seeking. (2)

We should give the lawyers a full participation in criminal proceedings.

The current criminal procedure law in China stipulates that after a criminal suspect is arrested, the cause of the arrest and the place of custody should be notified to the arrested’s family or organization within 24 h, except when the investigation is obstructed or the notification cannot be achieved. Under normal circumstances, the arrested criminal suspect is not allowed to contact the outside world for a long time. He does not know the reasons for his arrest, the alleged crime, the rights he should enjoy and how to exercise these rights. While in this overwhelming and panicked state, it is difficult for the accused to effectively protect his rights during interrogation. 91 92

He (2004, preface). Zhang (2005, p. 19).

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In addition, till now, the science and technology have not developed to a level that can reverse the time and space. The investigators can only rely on “historical fragments” to piece together the facts of the recovery of the case because they did not witness the case at the scene of the crime. The confession of the defendant naturally becomes the “king of evidence” and plays an irreplaceable role. “It really has the irresistible opportunity for law enforcement officers to obtain confessions by torture as an interrogation method to ascertain the case,” and “the human behaviours need to be restrained. In an unconstrained environment, the human behaviours will be driven by natural instincts and become arbitrary and brutal.”93 So, in accordance with the provisions of the current CPL, the role of lawyers in the investigation stage is needed, such as providing legal advice, applying for bail, putting forward complains for criminal suspects and so on, they can also meet the criminal suspects in custody, which will undoubtedly help to protect the rights of criminal suspects. Therefore, when the criminal suspect has taken coercive measures, he can get the help of a lawyer immediately, which can not only ensure the human rights of the criminal suspect, and effectively curb the occurrence of obtaining confessions by torture, but also play the following roles: A. B.

C.

D.

Increasing the confidence of criminal suspects in the law, which is conducive to their truthful confession of the crime. Being conducive to the standardization of interrogation behaviour by the investigating services so as to avoid the occurrence of forced confession, induced confession and guided statements. Being conducive to the person involved in pleading guilty and accepting the punishment, and reducing the occurrence of reversal of confession and testimony. Being conducive to the cooperation of criminal suspects with the investigation activities of judicial organs, and the efficiency of handling cases. Although the current CPL of China hasn’t stipulated that the criminal suspects have the right to keep silence yet, if the criminal suspects can get the timely help of lawyers, such as providing legal advice and legal assistance to them, the public security organs and procuratorial organs cooperate with the lawyers to assist progressing the legal proceedings, which may avoid the evidence obtained illegally. In such cases, the prosecutors can make accurate decisions based on correct evidence when reviewing an arrest.

In a word, since the arrest is the most severe mandatory measure in restricting the personal freedom and involves the human rights of citizens, most countries around the world have made quite strict regulations on it, especially in Western countries who advocate freedom and paying more attention to human rights with emphasizing the procedural legality during arrest. From the perspective of power checks and balances, all countries have effectively restrained the arrest, and most countries have judicial officers who are mostly magistrates to approve the power to arrest, whose setting 93

He (2005, pp. 33~34).

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is compatible with the basic idea of separation of three powers. As a power that restricts the power of investigation, from a substantive role, as long as it is exercised by different services or by different persons in the same department, the purpose of mutual restriction can be achieved. Therefore, under the model of political system of the people’s congress in China, there is nothing unreasonable in approving the arrest by the procuratorial organ which is different from the investigating organ. On the contrary, judging from the function of the procuratorial organ as a state organ of legal supervision, it is inevitable and reasonable to approve an arrest. This can solve the various problems of using arrest in practice from the procedure explained above to get a satisfactory result. In addition, from the perspective of the purpose of the arrest, its main purpose is to prevent the criminal suspects with a high risk of escaping, threatening witnesses, exchanging statements, destroying evidence, or re-committing crimes, by putting them under the supervision of state power. In doing so, the investigation can be undertaken smoothly and the state’s purpose of prosecuting criminals can be guaranteed and realized. From the perspective of safeguarding human rights, in the modern criminal procedure, it is necessary to keep a proper balance between combating crimes and safeguarding human rights by effectively restricting the power of arrest to avoid the arbitrary violation of human rights by the public power. A system of approving arrest can be established to effectively protect human rights. In China, in essence, the power of approving arrest is a restriction on the power of investigation and a part of the power of legal supervision. Under the current judicial framework system in China, the procuratorial organs have the responsibility of supervising the law, its implementation exercising the power of approving arrest. By having this power, the procuratorial organs exercise their supervisory power to conduct a full and effective supervision of the legality of the investigation activities of the investigating services, so as to prevent the wrongful arrests or excessive application of arrests. By reviewing and approving arrests, the procuratorial organs can effectively supervise the activities of investigating organs, such as filing cases, investigation and so on, and implement the power of supervision properly in accordance with the law. In short, the design of a country’s legal system is undoubtedly linked to the country’s history and culture. So, how to allocate its judicial resources rationally should also be considered from a country wide perspective. Only in this way can the various established systems be coordinated and operate smoothly to achieve the ultimate goal of judicial justice.

3.6 Conclusion The procuratorial power, that is, the functions and powers of the procuratorial organs, is the general term for the various powers given to the procuratorial organ by the Constitution and laws of China. It is a guiding and restrictive stipulation on what the procuratorial organ can do, what it should do and how to do it. For the procuratorial organ, it is both a power and a duty, as well as a power and an obligation. It is the position and division of state powers which is the embodiment of the procuratorial

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functions in the state institutions and litigation procedures, which is the channel and way for the procuratorial organ to realize the specific function of the state. Due to the influences of traditional culture, the political system and development path, the procuratorial system in China is full of characteristics, whose functions and powers are very extensive. However, from my above discussions, the prosecutorial power has encountered many difficulties and problems during its operation, especially the power of supervision. In order to give full opportunity to the advantages of the procuratorial system in the Chinese legal system, it is necessary to solve the obvious problems faced by the procuratorial organ in the operation of its procuratorial power. In practice, to promote the development and improvement of the procuratorial system with Chinese characteristics, it is necessary to deepen the reform of the procuratorial system and its working mechanism. While undertaking the reform, the first point is to recognize the current state of social development in China. At present, not only is China in a period of prominent contradictions in social transformation, but the entire world is also in a historical period of rapid change. Looking around the world, one will be surprised to find that the “Socialism under the banner of socialism with Chinese characteristics is embarking on a Chinese-style road to success. The socialism with Chinese characteristics is increasingly showing its vigorous vitality.”94 Corresponding to this, the procuratorial system, which is an important part of Chinese judicial system, must also serve the distinctive socialist economy in the period of social transformation and build a harmonious society, whose highest purpose is the development of the socialist procuratorial system with Chinese characteristics. At the same time, in reforming and improving the functions and working mechanisms of the procuratorial organs, such as whether the legal supervision function of the procuratorial organs should be strengthened, how to play the prosecutor’s leading role in the criminal proceedings, and whether a procuratorial case guidance system should be established,95 All reforms should be based on the present national conditions in China by considering the historical uniqueness of the Chinese socialist road and the judicial system with Chinese characteristics, consciously following the general principles of the development of judicial system and on the basis of in-depth survey and understanding of practical needs in order to promote and improve the socialist procuratorial system in China.

94

Wang (2011, p. 5). For the establishment of a procuratorial case guidance system, see: Zuo Weimin: “Analysis of the Procuratorial Organs’ Construction Case Guidance System,” People’s Procuratorial Semimonthly, No. 2, 2012; Sun Qian: “Discussion on the Establishment of Criminal Justice Case Guidance System,” China Law Science, No. 5, 2010. In recent years, the SPP has released several batches of guiding cases each year, such as the fifteenth batch of guiding cases, which are six typical cases of administrative inspection on Sept. 25, 2019.

95

References

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References Bian Jianlin, Li Yanling (2021) On the development and improvement of the system of supplementary investigation in China. Research on Modernization of the Rule of Law (1) Chen Guangzhong (ed.) (2006) Experts’ recommendation and demonstration on revisiting the criminal procedure law of the People’s Republic of China. China Legal Publishing House Chen Weidong, etc. (2019) The development and improvement of the people’s supervisors in the new era. Law Science (3) Chen Weidong (2000) Criminal procedure law. Law Press Chen Xingliang (2000) From ‘the judge above the judge’ to ‘the judge before the judge’------the prosecutorial power in the perspective of criminal law. Peking University Law Journal (6) Chen Xingliang (2001) Noumenon of the criminal jurisprudence. The Commercial Press Chen Ruihua (2003) Issues and doctrines. China Renmin University Press Chen Ruihua (2002) Theoretical reflection on the system of pending detention. Chinese Journal of Law (5) Deng Siqing (2007) On the procuratorial power. Peking University Press Gao Jiapeng (2018) A legal hermeneutic analysis of investigation supervision. Tribune of Political Science and Law (5) Gong Hanbing (2018) The double layer structure of prosecutorial power and it’s applied. Present Day Law Science (6) Hao Yinzhong (1999) Challenges on the procuratorial power. Journal of Renmin University of China (3) He Jiahong (2005) Enjoy the fate of law. Law Press He Jiahong (ed.) (2004) Trends of the criminal justice. China Procuratorial Press He Jiahong, Zhang Weiping, editors-in-chief (2000) Selected translations of evidence law in foreign countries (Volume one), the People’s Court Press Ji Meijun, Yao Shijing (2011) On the rational allocation of the power to approve arrest. Justice of China (10) Ji Meijun, Shan Min (2013) On the dilemma and way out of supervision on filing a case. Law Review (2) Ji Meijun (2013) On the comparative study on the system of prosecution service between China and Australia. Peking University Press. Jiang Bixin (2019) Practical development and system improvement of environmental public interest litigation in China, Law Appliacation (1) Jiang Mingan (2021) Introduction to public law: a macro perspective. Law Press Kellie Toole (2019) The decision to prosecute –the accountability of Australian prosecutors. Published in the book of “the evolving role of the public prosecutor: challenges and innovation”, Colvin V, Stenning P (eds), Routledge Li Zhongcheng (2003) Study on the execution of penalty and the functions of supervision. China procuratorial (Edition 3), China Procuratorial Press Li Long, Peng Xia (2019) The evolution of the connotation of legal supervision in the 70 years since the founding of New China. Guangxi Social Science (11) Liu Xuemin (2014) Discussion on the application of the discretion of non -prosecution with conditions by the procuratorial organs. China Legal Science (6) Lu Jianping (ed.) (2010) The fundamental scope of the procuratorial jurisprudence. China Procuratorial Press Ma Kechang (ed.) (1996) A brief history of the criminal jurisprudence in western countries in the modern times. China Procuratorial Press Mike Newell (2006) English prisons, their principles, regimes and systems of audit. The seminar of Sino-British supervision on penalty execution, Taiyuan city, Shanxi province, June Peng Yu ( 2021) Taking the Procuratorial Hearing Seriously. Procuratorial Daily. August 6 Song Jinglin (2021) Seeking breakthrough for the administrative procuratorial work. The Chinese Prosecutors (11)

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Song Yuansheng (2017) Reform logic of reviewing the necessity of detention. Oriental Law (2) Sun Qian (2001) On the arrest. Law Press Sun Qian (ed.) (2004) Outline of China’s procuratorial system, People’s Publishing House Sun Qian (2019) Filing a criminal case and legal supervision. Chinese Criminal Science (3) Sun Qian S (2019) Criminal Investigation and Legal Supervision. Journal of National Prosecutors College (4) Tan Shigui (1999) On the judicial independence and the media supervision. China Legal Science (3) Wang Jiancheng (2000) On the reconciliation of the prosecution of legality and the prosecution of opportunity. Journal of Renmin University of China (2) Wang Weiguang (2011) Deeply study on China’s development path and development experience, enriching and developing marxist theory of social form. Written discussions on theory of social form and historical values. Chinese Social Science (1) Xie Dengke (2019) Evolution and reflection on the investigation power of duty crimes of the procuratorial organs in China. Police Science Research (5) Xie Pengcheng, Chen Lei (2021) Procuratorial jurisprudence: innovation around the basic procuratorial basic theory. Procuratorial Daily, Jan. 9 Xiong Qiuhong (2021) On the relationship between public prosecution and private prosecution. Chinese Criminal Science (1) Xu Yichu (2000) The judicial justice and the prosecutors. CASS Journal of Law (6) Yang Qirui (2016) On the improvement and innovation of the supervision mechanism of criminal justice in China. Legality Vision, Nov. (Part 1) Zhang Qiong (ed.) (2000) Research on public prosecution. China People’s Public Security University Press 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 Zhang Qifei (2015) On the power of the procuratorial supervision of civil litigation. Journal of Taiyuan University of Technology (Social Science Edition) (3) Zhang Mingkai (2005) Being alert to misuse punishment in the name of building a harmonious society. Law Science (5) Zhang Weiping (2003) Civil retrial: foundation replacement and institutional reconstruction. China Legal Science (1) Zhu Xiaoqin (2007) Several issues of the procuratorial system in China. China Legal Science (2) Zhang Xiaoqin (2019) Persisting in justice for the people and making the administrative procuratorial work solid. Procuratorial Daily, Oct. 9 Zhang Yaowen (2019) Rethinking the nature of procuratorial power under the background of judicial system reform. Qingjiang Forum (1) Zuo Weimin (1999) Research on criminal procedure. China University of political science and Law Press

Chapter 4

The Prosecutor’s System

Prosecutors are the exercisers of the procuratorial power; their position in the procuratorial system determines the effectiveness and adequacy of exercising the procuratorial power. The prosecutorial system outlines the legal provisions that define the status of the prosecutor, the qualification, selection, rank, training and professional security of the prosecutor, which is an important part of the procuratorial system. The powers entrusted to the procuratorial department by law are ultimately realized through the functional activities of the prosecutors. The establishment and effective operation of the prosecutor’s system are of great significance as it gives full play to the enthusiasm and subjective initiative of the prosecutor, which ensures the full extent of the procuratorial function to complete all the work tasks. In each country, the prosecutor’s system varies greatly from country to country. This chapter discusses the qualifications, selection, promotion, training and professional safeguard of Chinese prosecutors and compares them with that of other countries.

4.1 Qualifications and Selection of Prosecutors To build a socialist country ruled of law, firstly, it should establish the judicial authority. The key to the establishment of judicial authority is to improve the quality of judicial personnel, especially at the local level. It is the first year of the 14th Five-Year Plan in 2021. The political and legal organs at all levels should earnestly implement the spirit of the Fifth Plenary Session of the 19th CPC Central Committee and the Central Working Conference on the comprehensive rule of law, pay more attention to the concept of system and think in the way of rule of law with guidance

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 M. Ji, Brief Introduction to the Procuratorial System in China, Understanding China, https://doi.org/10.1007/978-981-16-8611-5_4

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of strengthening the local organs as well as and effectively promote the high-quality development of the political and legal work.1

4.1.1 General Introduction In China, the prosecutor is an important part of the judicial system and has critical impact on the establishment and maintenance of the judicial authority. All powers of the procuratorial system are exercised by the prosecutors, and whose qualification and experience directly affect the performance of the procuratorial functions and the effectiveness of their work. In theory, the prosecutors are state officials who exercise the procuratorial powers on behalf of the state and must have a good comprehensive professional standard. They should be the elites of the state officials and the wise persons, and “they must have the ingenuity of philosophers, the subtleties of scientists, the linguistic abilities of writers, the insights of sociologists penetrating the social contradictions and the tolerance of politicians”2 In reality, whether the quality of prosecutors is high or low depends on, to a large extent, whether the established qualifications and selection system can objectively and fairly screen out the truly outstanding persons to engage in the procuratorial work. Therefore, whether the qualification conditions stipulated by law are reasonable or not, and whether the procedure of selection is scientific or not, has become the key factor to guarantee the high quality of the procuratorial team. In the modern society where the law is increasingly refined, if the prosecutors want to perform their duty properly, enforce the laws strictly and safeguard the judicial justice timely, they must have a higher professional level in addition to having higher political quality and moral cultivation. In order to select talents, taking into account the special nature of exercising the legal functions of prosecutors, the qualifications of prosecutors are quite strict both in China and other examined countries. Although there are some differences in specific selection systems due to the cultural traditions and judicial systems, for example in Common Law countries, the prosecutors have legal qualifications, their qualifications equivalent to that of practicing lawyers, and their “political” and “mobility” are stronger by combining the system of appointment and election. The prosecutors in Civil Law countries are regarded as peers of judges, and their training and experience are the same as that of judges. The prosecutors in Civil Law countries must pass the judicial examinations and after a period of training, studying and practicing at the National School for the Judiciary, the graduates are free to choose whether to be judges, prosecutors or lawyers, depending on the opportunity. However, the 1

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. 2 Liu (2008, p. 24).

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high standards of qualifications, strict selection procedures and knowledge of the legal systems are needed to attract the best talents from the society to serve the procuratorial cause. In addition to recruiting talents from law school graduates, many countries have also stipulated that the people with judicial experience in society can also become prosecutors through the strict examination and selection procedures. This open system of selecting prosecutors is conducive to mobilizing those who are interested in the procuratorial work to be diligent and studious, to make progress, to strive for the realization of their own aspirations and to send a steady stream of talents to the procuratorial team. In China, the prosecutors, as an executor to achieve fairness and justice, also exercise the powers of the procuratorial organs which are extensive. So, the quality of prosecutors directly affects the level of legal supervision and the effect of law enforcement. At present, there are more than 200,000 procuratorial personnel, but the quality is uneven. To outline these difficulties, I’ll discuss the system of prosecutors from several aspects, such as the selection system, the hierarchy system, the training system and the need for continuing professional development system. At the same time, in order to put the procuratorial system in China in the world’s perspective, the comparison will involve in major countries in the world, especially Australia.

4.1.2 Qualifications of the Prosecutors in China In accordance with the provisions of Article12 of the newly revised Prosecutors Law of China which came into force on October 1, 2019,3 the qualifications of the primary prosecutor are as follows:

4.1.2.1

Requirement for the Degree

A bachelor’s degree or above in law, or bachelor’s degree or above in non-law and the master’s degree or above in law, or a bachelor’s degree or above in non-law of an ordinary university, obtaining other corresponding degrees and have legal professional knowledge.

3

The Prosecutors Law of the People’s Republic of China was adopted on February 28, 1995 at the 12th meeting of the Standing Committee of the Eighth National People’s Congress and came into force on July 1, 1995. The first revision was June 30, 2001; the second revision was September 1, 2017; the third revision was April 23, 2019 and came into force on Oct.1, 2019. In this book, I just cite it as the Prosecutors Law in 2019.

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4.1.2.2

Years of Work

Five years of legal work. Where a master’s degree in legal major(法律硕士) or a master’s degree in law (法学硕士) or a doctor degree in law is obtained, the number of years of legal work may be shortened to four or three years,

4.1.2.3

Other Requirements

Having the nationality of the People’s Republic of China, being of good health (physical condition for the normal performance of duties); supporting the Constitution of the PRC and supporting the leadership of the Communist Party of China and the socialist system. Having a good political, professional quality and moral character. Since 2001, the introduction of unified national judicial examination system for firsttime prosecutors, judges and lawyers, and any person who wants to become a prosecutor must firstly pass a unified national judicial examination and obtain a certificate of legal professional qualification before becoming a member of the procuratorial team. The main reasons for such provision in the Prosecutors Law are: (1)

(2)

(3)

The prosecutors in any country are public officials of the state, provided that they are citizens of that state and physically capable of serving the state, which is fundamental to the performance of their duties. The procuratorial work is political. In a society ruled of law, a prosecutor must have high political quality in order to ensure that the procuratorial work develops correctly to state requirements. The Prosecutors Law in 2019 stipulates that the political and ideological conditions for becoming a prosecutor are that they must uphold the Constitution of the People’s Republic of China, uphold the leadership of the Communist Party of China and the socialist system and have good political and professional qualities, which is necessary for the prosecutors to perform their duties. The prosecutors must strictly abide by the Constitution and laws in their daily work. Their actions must be based on facts, take the law as the criterion, enforce the law impartially and uphold the Constitution. They must abide by the laws and are obligated to regulations formulated in accordance with the Constitution. Under the current national conditions of China, the prosecutors should support the political system established by the Constitution of PRC and the People’s Congress together with the constitutional status of the procuratorial system of legal supervision, while consciously accepting the leadership of the Party and the supervision of the People’s Congress. Qualification requirements of the Prosecutor are increasing. Before 1995, the appointment of the prosecutor in China did not provide for any educational background and did not require an examination. Following the implementation of the Prosecutors Law in 1995, the appointment of a first-time prosecutor must pass a national uniform qualification examination for a first-time prosecutor,

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together with a university education, which raised the standard of the professional quality of prosecutors. The revised Prosecutors Law in 2001 further improved the eligibility criteria for the first-time prosecutors by requiring a pass in the uniform national judicial examination together with a bachelor’s degree. This was a major judicial reform in China with the implementation of the national unified judicial examination. It was found necessary to establish a professional qualification examination and a unified selection criteria for judges, prosecutors and lawyers. Firstly, this contributed to the formation of professional communities. Judges, prosecutors and lawyers are all legal professionals; their commonality is being based on jurisprudence. They share common knowledge, technology and ideas, while judges judging cases without prejudice, prosecutors representing the interests of the state, and lawyers entrusted by the parties to represent their interests, whose ultimate common goal is to achieve the judicial justice. The introduction of a unified judicial examination and the adoption of the same access methods and procedures will help to obtain a sense of identity between three professional groups by promoting the formation of consciousness of the legal professional community. Secondly, it contributed to the unification of the domestic legal system. The unification of legal system is necessary for the market economy society of China, and it is also a constitutional principle. But the unification of legal system is not only embodied in the text of Constitution and law, but more importantly, the understanding of legal text and the method of legal interpretation should be consistent among the practitioners. Otherwise, even in the case of the same circumstances, the application of the same law, the outcome of the case can be very different. The unification of the national judicial examination will help to harmonize the legal profession’s understanding of legal knowledge, technology and ethics and help to regulate the conduct of the judicial process.4 Thirdly, the implementation of a unified judicial examination system for the legal profession is a common practice in countries around the world. It can be said that the commonality and close relationship between the three professions of judges, prosecutors and lawyers are the inherent objective requirement for the implementation of a unified judicial examination. The requirements for educational qualifications in the newly revised Prosecutors Law in 2019 have been further increased, i.e., those who are not in law at the undergraduate level are required for a master’s degree or above in law. The Prosecutors Law 2019 also provides for four situations in which the prosecutors may not be appointed: A. those who have been criminally punished for a crime; B. or those have been dismissed from the public office; C. if a lawyer or notary public’s practicing certificate has been revoked or removed from the arbitration commission; D. if there are other circumstances prescribed by the law.

4

See He (2001, p. 005).

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4.1.3 Selection of Prosecutors Prosecutors, as one of the representatives to exercise the public power, are the elite of national staff in both Civil Law countries and Common Law countries. In reality, the quality of prosecutors largely depends on whether the qualifications and selection system of prosecutors can objectively and fairly screen out the real talents. In order to select talents, most countries have stipulated the relatively strict selection and appointment systems. However, due to differences in cultural traditions and judicial systems, there are also different regulations on selective modes, qualifications and procedures in different countries. The following discusses the selection and appointment systems of major countries from the selective modes, then analyzes the characteristics of various selection modes and the problems existing in the system of selecting prosecutors in China, and puts forward some feasible improvement measures and proposals.

4.1.3.1

The Mode of Selecting Prosecutors

After the law stipulates the detailed qualifications, the selection procedure of prosecutors is the most critical link, which is directly related to whether the excellent persons can be really selected to engage in the procuratorial work. Looking around the world, there are two main patterns in selecting prosecutors: (1)

The mode of selecting prosecutors from lawyers

This mode is mainly used to select prosecutors in Common Law countries. The prosecutorial system in Common Law countries gives a special emphasis on the rights and freedoms of individuals and on equaling between the parties. Prosecutors are participators in the criminal proceedings; they are public lawyers representing the government. The qualifications for becoming a prosecutor are equivalent to that of a lawyer. In England and Wales, prosecutors are mainly selected from lawyers. The duty of prosecutors is to make sure that the right person is prosecuted for the right offense, and to bring offenders to justice wherever possible. The Attorney General and the Solicitor General are nominated and recommended by the Prime Minister from the members of the House of Commons of his party and appointed by the Queen. The highest body of the British prosecution service is the Crown Prosecution Service (CPS), which prosecutes criminal cases that have been investigated by the police and other investigative organizations in England and Wales. The Director of Public Prosecutions is appointed by the Attorney General. He must have more than 10 years of working experience as a barrister or solicitor. At present, Max Hill QC is the Director of Public Prosecutions, and he was appointed by the Attorney General and took up post on 1 November 2018. At present, around 6,000 people 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. The rest work to assist prosecutors

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preparing cases for court, or in other professions including operational delivery, finance, human resources, communications and digital and technology services.5 However, in Australia, it usually adopts the employing system. The vacant posts in the prosecution service should be publicly employed, and anyone who is competent can apply for the vacant posts. For example, those who apply for the position of Crown Prosecutor shall generally have at least 10 years of defense experience as a lawyer, either for the prosecution or the defense, or both. However, Australia is a federal state. The selection and employing procedures of prosecutors at the federal level and states may be a little different, but they are basically the same. (2)

The mode of selecting prosecutors by the uniform exams

This selection model is dominated by Civil Law countries, especially France, Germany and Italy having similar systems. This mode sets the same qualifications for prosecutors and judges, such as four years of law at university, passing the first national examination; receiving a uniform course of some time, followed by a second national examination; and then being appointed as a prosecutor or judge, depending on vacancy.6 For example, in Germany, the qualifications of a prosecutor are the same as that of a judge, Sect. 5 of German Judiciary Act stipulates the qualification for judicial office, which is: (1) whoever concludes his legal studies at a university by taking the first state examination as well as a subsequent period of preparatory training by taking the second state examination shall be qualified to hold judicial office; the first state examination comprises a university examination covering areas of specialization and a state examination covering compulsory subjects; (2) university studies and preparatory training shall be harmonized in content.7

4.1.3.2

Characteristics of Different Modes of Selecting Prosecutors

Due to the different selection mode, the qualifications, the conditions of training and the scope of selecting prosecutors, which are something different between Common Law and Civil Law system. Selecting prosecutors from lawyers has some characteristics which are as follows: Firstly, the qualifications of prosecutors are equal to that of lawyers, emphasizing the equality of lawyers and prosecutors, who are called government lawyers; secondly, the selection of prosecutors from lawyers with many years of legal work experience to ensure the elite of prosecutors; thirdly, the common legal professional knowledge, which helps prosecutors to understand the profession of lawyers; 5 See the website of the Crown Prosecution Service, http://www.cps.gov.uk. I visited this website on August 16, 2021. 6 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). 7 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).

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fourthly, the blocking of the bridge between the assistant prosecutors and prosecutors is not conducive to the professional construction of the prosecutorial personnel, and the election system and the appointment system have their own advantages and disadvantages. The main features of the mode of selecting prosecutors in the system of examination: Firstly, the prosecutor and the judge are collectively referred to as the judicial officers who are trained in the same way. Law school graduates pass the judicial examination, and after a certain period of training, study and judicial practice at the Judicial Officers College, they can choose to be judges, prosecutors or lawyers according to the vacancy opportunity. Secondly, due to the same qualifications and procedures for selection and appointment, the prosecutors and judges have a consistent sense of professional identity, and the exchange between the two professions. Thirdly, the selection system is conducive to absorbing people with judicial experience in society into the procuratorial team so that those who want to engage in the procuratorial work through industrious study and hard work to achieve their long-cherished aspirations.

4.1.3.3 (1)

Procedure for Selecting Prosecutors in China

Selection of the primary prosecutor

The Article 14 of the Prosecutors Law in 2019 stipulates: By the method of examinations or assessment, the first-time prosecutor shall be selected from those best candidates who have the qualifications for a prosecutor by achieving the standards of a moral and talented person. The general director of the people’s procuratorate shall have legal professional knowledge and legal professional experience. The deputy director or the members of the committee shall be elected from among the prosecutors, judges or other persons qualified to be prosecutors. The article 15 also stipulates: The people’s procuratorate may, in accordance with the needs of the procuratorial work, openly select the prosecutors from lawyers or personnel engaged in legal professions such as law teachers and researchers of not less than five years experiences, having a good practice reputation. The law teachers and researchers participating in open selection shall have an intermediate or above professional title, and be engaged in teaching and research work with outstanding research ability and corresponding research achievements. In addition to having the qualifications to serve as a prosecutor, the lawyers participating in open selection shall practice for not less than five years, have extensive experiences in practice and a good reputation while practicing. So, from the above requirements, it can be seen that a detailed procedure for selecting prosecutors from different fields is possible. In practice, the selection and recruitment of the first prosecutor in China is under the unified leadership and organization of the SPP and is generally carried out according to the following procedures:

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The first is to issue a recruitment announcement to the public in a certain form, announcing the position, quota and regional distribution, registration conditions, selection procedures, time and place of the recruitment. The second is to examine the registration qualifications. Besides the registration conditions should be basically in line with the provisions of the Prosecutors Law, according to the different regions and jobs, it can put forward some specific requirements, such as professional, work years, age and the level of foreign languages. The third is to examine and interview the examiners, such as examining the qualified people with the forms of written examinations, oral examinations, interview, examination by conducting a comprehensive inspection on the registration personnel’s political quality, professional knowledge, moral quality and the ability to engage in the procuratorial work. The fourth is to review and employ the qualified applicants by selecting the best candidates, submitting a list of the selected applicants, reporting it to the competent authority for approval and finishing the prescribed procedures, then publishing the list of the employed persons and issuing a notice of employment. From here, we can see that the recruitment procedure for the first prosecutor is rather strict. However, it may be affected by certain human factors in the process. From the perspective of improving the overall quality of the procuratorial team, it is important to strictly control the entrance to the procuratorial team, which is only one aspect of the problem. On the other hand, it is necessary for us to examine the system to ensure that the existing outstanding talents in the procuratorial team can continue to maintain excellent work. So, they have a sense of professional honor and the appreciation of their own value. A well-designed system of appointment and promotion of prosecutors is particularly important. (2)

Selection of the general director of the people’s procuratorates at all levels

In accordance with the provisions of Articles 37 and 38 of the Organic Law of the People’s Procuratorate of China, the appointment and removal of the General Director of the people’s procuratorate shall be governed by the system of election, appointment or the combination of election and appointment, and the Attorney General of the SPP shall be elected and dismissed by the National People’s Congress. The Deputy General Director of the SPP, the members of the procuratorial committee and the procurator shall be appointed and dismissed by the Attorney General of the SPP at the request of the Standing Committee of the National People’s Congress. The General Director of the people’s procuratorates of provinces, autonomous regions and municipalities directly under the Central Government and the General Director of the branches of the people’s procuratorates shall be elected and dismissed by the people’s congress of provinces, autonomous regions and municipalities directly under the Central Government, the deputy General Director, members of the procuratorial committees and procurators of this level shall be appointed and dismissed by the General Director of the people’s procuratorates of the provinces, autonomous regions and municipalities directly under the Central Government at the request of the standing committee of the people’s congress at the corresponding level. Moreover, the appointment and removal of the General Director of the people’s procuratorate of a

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province, autonomous region or municipality directly under the Central Government shall be submitted to the Attorney General of the SPP for approval by the Standing Committee of the National People’s Congress. The General Director of the people’s procuratorates of autonomous prefectures, cities directly under the provinces, counties, cities and districts under the cities shall be elected and dismissed by the people’s congress at the corresponding levels. The deputy General Director, members of the procuratorial committees and procurators at this level shall be appointed and dismissed by the General Director at the same level at the request of the standing committee of the people’s congress. The appointment and removal of the General Director of the people’s procuratorates of this level shall be submitted to the General Director of the people’s procuratorates at the higher level for approval by the standing committee of the people’s congress at that level. (3)

Procedure for promotion of prosecutors

The promotion process for prosecutors is also crucial to the career progression of a prosecutor. A person with the spirit of ambition and struggle, always hopes to be prosperous in their career with a bright future through their own diligent efforts and outstanding performances. The scientific, reasonable and fair procedure for the promotion of prosecutors naturally becomes the ladder to realize their expectations and ideals. For a long time, in China, there has been an administrative promotion for those prosecutors with outstanding performances, such as from an ordinary prosecutor to a director of the department of the procuratorate, then to the deputy general director. In practice, the appointment and election for the General Director are somewhat complicated. Usually, inside a procuratorate, such promotion is up to the General Director’s decision with a formal procedure of promotion according to the recommendation. So, in the prosecutor’s sequence, there is only an assistant prosecutor promoted to a prosecutor or procurator in China. But from the administrative level, there are more classes of promotion. Sometimes, a leader of the lower procuratorate can be promoted to be a leader of the higher procuratorate. Owning to the various disadvantages of the system of recommendation in promoting cadres, such as the nepotism and black operation and so on. Therefore, since 2000, in order to implement the spirits and requirements of the Party Central Committee, the procuratorial systems have carried out various reform activities, in keeping with the expectations of the cadres and the masses of the systems. To promote the reform of the personnel system of the cadres, the SPP carried out the competitive induction system which was most striking and lasted for more than ten years. The competition for positions is undoubtedly an important step in achieving the reform of the personnel system of government officials in the SPP. In the past ten years, an important symbol of the improvement in the selection system for prosecutors has been to “make the mechanism more scientific, make the competition fairer and make the process more transparent.” In order to conscientiously implement the Party’s cadre line, orientations and policies, to establish a scientific and standardized system for selecting and appointing cadres, and to promote the rejuvenation, intellectualization and specialization of the cadre ranks, the party group of the SPP met many times to discuss with people of the Organization Department of

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the Central Committee of the CPC and other units to make improvements. On the basis of in-depth investigation and discussion with, full deliberation and extensive consultation, concentrating the wisdom of the cadres and the masses of the SPP to revise and reform, the Methods for the Selection and Appointment of Leading Cadres at the Department and Division Levels the Supreme People’s Procuratorate (Trial) and the Methods for the Promotion of Non-leadership Posts at the Department and at Divisional Levels of the Supreme People’s Procuratorate (Trial) were formulated and promulgated (hereinafter referred to as the two methods). The main basis for the selection and appointment of organ cadres, through the full implementation of the two methods, it was expected that the institutionalization and normalization of competitive selection and appointment of cadres would be achieved. Looking back on history, since the start of the large-scale competition of divisionlevel leadership in 2000, the similar activities took place in 2010 and 2011. In 2010, more than a dozen vice department-level posts and dozens of division-level posts of the competition were passed. Changes were still occurring at the end of April, 2011. A competitive induction program was announced unexpectedly for 35 deputy division-level posts and 25 division-level posts. It was an unprecedented process to select leading cadres with such speed, requiring a wide scope, deep attention and great influence. But after more than a month of competition for positions, the result could be said to be “a few happy and a few sad,” the event had mixed praise and criticism. From the perspective of perfecting the system of promotion, I’d like to take this competition as a case study to describe what happened in detail and evaluate and analyze its advantages and disadvantages of such a competitive employment objectively in order to provide some feasible suggestions for further improvement and reform in the future.8 A.

Characteristics of the two methods

From the stipulations of the two methods, there were specific aspects of procedural and substantive contents. To make the detailed assessment of the measure, procedure, conditions and standards of selecting and appointing cadres, the selecting and appointing procedures should be more scientific, standardized and practical, the characteristics were mainly as follows9 : (A)

Selecting cadres at the same level in the same way.

In view of the actual situation in the SPP, the two methods stipulate that the cadres at different levels should be elected in different ways, but the cadres at the same level should be selected in the same way. For example, the cadres at the department level should be elected by democratic recommendation, the deputy department level should be elected by the combination of democratic recommendation and duty presentation and evaluation. But the department-level leadership position should adopt the 8

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. 9 See Xu (2011, p. 001).

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competitive employment method. At the same time, according to the different nature of the leading position and the non-leading position, the two methods of selecting and promoting the leading cadres at the division level are formulated respectively to ensure the fairness of the selection and appointment to enhance the scientific nature, rationality and the pertinence of the system. (B)

Strengthening the integration of management and employment

In order to change the shortcomings of the past separation between management and employment, and to effectively change the situation of who uses the person but has no right to choose him and who has the right to choose the person but has no chance to use him, it should further strengthen the employer’s principal responsibility in the selection of leading cadres and non-leadership positions at the division level, and pay more attention to the employing opinions. From the beginning of the selection process of the candidates for interview and the proposed candidates for appointment, the interview panel of the department shall collectively study and put forward their opinions. The main leader of the department with vacant positions should conduct the interview. From the original intention of the system design, this is undoubtedly a great progress. B.

Adjusting and supplying the vacant posts timely

In order to improve the efficiency of competitive selection and appointment, it is stipulated that when the number of candidates does not reach the minimum ratio of 1:3, the competitive position is cancelled, and the democratic recommendation may be used timely. It is stipulated that vacancies in leadership positions at the department and division level should generally be filled within six months, not later than one year. C.

Implementing the method of difference selection

Those who compete for posts of leading cadres at the level of deputy director of the department shall first determine the candidates for duty presentation and evaluation according to the proportion of 1:5, and then determine the object of inspection according to the proportion of 1:2. In the competition for leadership positions at the division level, the candidates for the interview are determined according to the ratio of 1:5 by the written test scores, then determine the object of inspection according to the proportion of 1:2 by the oral test scores. Each link carries out the difference selection method, through the difference recommendation, the difference brewing, the difference inspection, whose purpose is to choose the better one from the good and choose the stronger one from the excellent. This is a more comprehensive approach in the institutional design. (4)

Advantages of promotion through competition

How to select the leading cadres and determine the best talents with moral and academic potential is of the most important concerns of a political party and government. Whether the procedure and result of its selection and appointment are fair is the key to the success or failure of a political party or government. The reasons are selfevident. If the leading cadre holding the power is academically inadequate and has a

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corrupt style of work, poor decisions will occur. Through decades of exploration and reform, the promotion through competition for posts has become a common way of selecting cadres in the party and government departments in recent years. The original intention is to break the phenomenon of seniority and cronyism. In general, its advantages are shown in the following examples: A.

A set of transparent and fair procedures

The practice usually included several links: scheme design, post-announcement, mobilization of registration, written examination, interview, public opinion evaluation and differential promotion. Under the two methods, the vacant posts at the division level of the departments should normally be filled within six months, not later than one year. Therefore, the Political Department of the SPP first announced the vacant posts in the departments and bureaus at the departmental levels of the organization, then after registration, filling of the posts could be determined to be competitive. On qualification examination, if the number of applicants is less than three, the post would be temporarily cancelled. (A)

Written examination

All those who seek promotion should take part in the unified written examination, and previously they only took the discussion topic. In the recent competition for leadership positions at the departmental and division level, the written tests and interviews were tailored to each position by the Evaluation Centre for Leading Cadres of the Organization Department of the Central Committee of the CPC. They ask the department with the competing positions to prepare related business questions. The purpose is to test the competitor’s position practice ability and the comprehensive analysis ability with ensuring the quality of ability to match the position and employ a person to suit the post. For example, in May, 2011, the question of a written test for the promotion was based on the report of the Attorney General of the SPP. The response from the deputies to the people’s congress was to write a small paper with the topic of “in the current new situation, the opportunities and challenges faced by the procuratorial organs.” Such question for the competitors was to test the political sensitivity, realistic attention and the ability to deal with relevant materials, analyze and solve their problems. At the same time, it tested the rapid thinking ability and language skills of the competitors. Above all, it is unnecessary to prepare in advance for the examination, they can play a normal level only with the knowledge and ability accumulated over the years, which avoids the unfairness caused by the different degree of busy work that may lead to the unequal time of preparation for the test. Those people who were usually busy in working every day could also give full play of their ability and level. Finally, the written test scores could also be checked. Objectively speaking, a written examination achieved openness and fairness basically. (B)

Interview

The interview was the most exciting part in the entire process of promotion throughout the competition, which was live broadcast throughout the SPP, and audiences could

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see the performances of each competitor. In 2011, the topics of interview were tailored to each position by the Evaluation Centre for Leading Cadres of the Organization Department of the Central Committee of the CPC. This involved both the individual advantages of the competitors and the skills that the leading positions require by the organization, its coordination and solving problems. From the applicant’s question and answer, the true level could be seen clearly, especially the final business questions. The applicant’s familiarity with or understanding of the position was tested, the examiners could judge the status of the applicant’s work after taking the post. For example, the topics of interview for the division-level positions in 2011: The first question is required to use three words to sum up your abilities, advantages and disadvantages; the second one is that in reality, when leaders made a survey in the local procuratorates, the cadres acted as the masses and the masses recited their lines, please to analyze the reasons and ascribe how to avoid this phenomenon with combing the actual procuratorial work; the third one is that how to view the dialectical relationship between the proverb of “No rules, no squares and circles” and the reform and innovation; the fourth one is that how to undertake the leading work adequately in an office setting. Similar topics, such as: (1) What do you think the position at the division level involves your advantages and disadvantages for this position? (2) What are the problems from history, which are becoming more difficult to solve. Combined with the practical work, what’s your opinion? (3) The communication is well developed and the transportation is convenient. As officials are separated from the masses, therefore, the ideological work among the masses is reduced. Combining the practice, talking about how to improve the level of mass understanding. (4) How to make full use of the legal assistance treaties to combat the transnational and reduce organized crimes? In addition, according to the requirements of some posts, extra questions are needed for the position of the Bureau of International Cooperation. Oral English of the competitors should be tested, which is really a huge challenge to them. Examination was before five experts with live broadcasting and business questions had to be answered in English. The questions were as follows: What are the problems between Mainland and Hong Kong in the process of cooperation of investigating a case? What good advice do you have? Are there more and more offenders who have fled to the United States and Canada with huge sums of money. What difficulties exist in the extradition and repatriation of the criminals? What advice do you have? From these questions, it is difficult for the common people to handle. If your English is not good enough, maybe you can’t understand what are the questions that the experts have raised in such a long sentence. How can you answer the questions properly in English? Therefore, from the interview, whether it’s the topic of examination, or the way it’s done, it cannot be said to be opaque and unfair, but was designed to test the various aspects of the ability and level of the competitors’ knowledge and presentation. (C)

Opinion survey

The leading cadres need to have a good mass base, therefore, it is reasonable to design the link of evaluation of public opinion in the selection process. According

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to the written test, interview results, the shortlisted subjects of inspection are determined with the proportion of 1:2. In order to ensure the fairness and openness of the selection system, the evaluation of public opinion is carried out in the departments where the applicant works, if the consent rate is less than 80%, the inspection should be terminated, which accords with the selection criteria. At the same time, it is necessary to conduct interviews among the current cadres at or above the division-level to determine the comprehensive performances of the shortlisted competitor in the applicant’s department. B.

A platform to exhibit the competitors’ abilities

Since the promotion through competition is more open and fair in the procedural design, especially in the interview link and live broadcast online, a candidate faces with a whole row of business experts, leaders and senior colleagues, whose aim is to test real talent of the applicant. It is not easy for the applicants to exhibit their ability and learning calmly. The strong psychological qualities and excellent professional knowledge are needed. At the same time, an applicant must be faced with a red situation together with clear thinking and logical language skills. If the candidate performed well in the interview, at least he would be superior to his competitors in the above situation, especially in the oral English test. This couldn’t be done with a little adulteration, those whose English is poor, maybe couldn’t understand the questions the expert asked. Alternatively, even they could understand the questions, without the relevant business background knowledge and equivalent foreign language skills, to immediately answer in English on how to crack down on offenders who abscond abroad with huge sums of money may be absolutely difficult to answer. The promotion through competition in the past years identified talented competitors. Others who failed to achieve their goals were given an interview to have a window of opportunity to show their talent and style. This practice was fully affirmed and appraised by the cadres and masses. “The comrades who took part in the interview generally believed that live webcast provided a good platform for fair competition, self-expression, learning and exercise, eliminated the fear of unfair judgment by the judges, and made people feel reassured and convinced. The cadres who did not participate in the competition witnessed a vivid performance by watching the live broadcast on the internet. They not only felt the atmosphere of fair competition, but also absorbed a lot of knowledge, identified their own shortcomings, and in the future work, they considered where to pay more attention to learning, by making great effort to prepare for the future competition.”10 For example, in the 2010 promotion through competition for leading cadres at the division level, the interview in the two examination rooms was broadcast live at the same time, which was fully affirmed by the cadres and the masses, and the number of hits reached 6225 within two days and there was no exception in the interview of promotion through competition in 2011. Therefore, in a sense, it is an opportunity to let “gold shine”, and the process itself naturally has its unique value.

10

See Xu (2011, p. 001).

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An efficient selection process

From a number of promotion through competition activities over the past decade, the time of each competition from the beginning of informing the competitive posts and qualifications, to the final appointment of posts, usually only took no more than a month, and the appointment involved a group of cadres, sometimes as many as dozens of people. We have to say, it was an efficient and successful activity both in process and outcome. During such time, the personnel in the Political Department focused their time and energy on providing good service in such selection of all aspects. In some interviews, the competitors had to wait for more than four hours and the colleagues who served as staff members had been working hard by accompanying them without any complaint. In addition, in the final stage of the consideration, there were more than 20 people who should be considered immediately, it was necessary for them to consider various departments in order to get public evaluation and interviews. In preparation, they did their own work with enthusiasm and their meticulous attitude and work spirit, efficiency were undoubtedly commendatory. Judging from the selection links and advantages mentioned above, the whole process of promotion through competition is open, transparent and fair. Undoubtedly, it has historical development compared with the previous appointment system. Although the results of the interview and public opinion evaluation are not yet publicly available, the interview is live broadcast throughout the SPP, and the results are evident as long as the judges score objectively and impartially. Public opinion evaluation doesn’t affect the final outcome unless the agreed rate is lower than the set one. However, does such strict and fair procedure ensure the fairness of the selection results? (2)

Disadvantages of the promotion through competition

For many years, there has been an emphasis on procedural justice, being visible, but what is the value of procedural justice if it is only the procedural justice without the fairness of result? So, I’ll analysis the procedural shortcomings of such competition. A.

Problems existing in the link of interview

Reviewing each link of the promotion through competition, it was easy to identify some problems at the interview stage; however, where the live broadcast was a form of supervision, the effect of supervision was greatly reduced because the results of interview were not made public. In addition, the score the examiners gave were a subjective judgment, which would inevitably be affected by impressions, such as likes and dislikes. It is reasonable since it is very difficult to avoid such score being affected by the people participated in the activities. In fact, the original intention of the design was the achievement of consistency between management and employment. However, the biggest problem was that if the head of the department presided over the interview, some leaders abused such opportunity and power by giving the applicant they liked high marks. Unfortunately, interviews became a formality and the live broadcast became a show! Alternatively, some competitors answered the questions poorly or answers were far

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from the point. Some couldn’t understand the experts’ questions raised in English and didn’t respond to the English questions during the interview. To our surprise, this did not prevent the applicant becoming a finalist without any barrier and eventually being appointed. Although such phenomenon was not common, it undoubtedly undermined the interview live broadcast. It was a fatal blow and damaged the fairness and credibility of the competitive system of promotion. B.

Problems existing in choosing one from two

In the design of the process of selection, the last procedure was to decide from the quota of 2:1 finalists. After the public opinion evaluation the selection of a candidate from the two shortlisted competitors was made by the department. The original intention of this difference selection was to ensure that the employer selected the best candidate from those shortlisted. Selection was to choose the most outstanding candidate from the good and choose the stronger one from the best. Unfortunately, the results of actual selection were not what they desired. Some competitors because of their own relationship with the selection panel were chosen with poor test results. Their lack of talents, both moral and ability, made the selection process a decoration and resulted in injustice with undermining the entire system of promotion through competition. Such result not only wasted so much manpower, material and financial resources, it gave the reform process of the personnel system a bad name of “hanging sheep head, selling dog meat”, which was far from the original intention of the implementation of the system of promotion through competition. C.

Problems existing in the elimination of each link

The present system of promotion through competition should be open for the competition, and it must depend on how many people registered for the position. The lowest number of applicants should be 1:3. The final interview list was determined with the proportion of 1:5 after the written examinations. In this case, due to strong competition, those who had not been shortlisted for the position might had much higher marks than those who had been shortlisted for other positions. Among those in the shortlist, the fifth-ranking person for the hot position might have higher marks than the first-ranking person for other posts, which is similar to the entrance examinations for university when filling the requirement, if those with good marks don’t fill their entry requirement, they may not realize their dreams. However, in 2011 selection for promotion through competition, the organizer had paid attention to this problem and had taken a complementary measure after the written examinations, which was to permit those who had the qualified marks were not shortlisted for interview to change their application for another position. Undoubtedly, this was a remedy. However, there would still be some obvious unfair results, such as the number of applicants were only 3 persons for a position, the person with worst written test results could still be shortlisted for interview, and with a relatively good relationship with the interviewers, he or she might be finally successful and get promoted for the position, which was obviously unfair. Such thing did happen in the promotion through competition in the SPP in 2011.

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In a word, any system has advantages and disadvantages. Although the system of promotion through competition was seen as perfect in the original design, in the process of implementation, the problems did arise in one way or another, the original intention of reform was very idealistic. However, these problems could be remedied by improving the transparency of the whole process. From the perspective of how to improve this reform measures required more analysis and implementation efforts. It is necessary to correct the shortcomings in order to make a good reform as perfect as possible. This ensures people with virtue and talent can be fairly promoted through competition. Due to the disadvantages of the promotion through competition system, this reform gradually went nowhere several years ago. However, as a major reform measure of the promotion system, it has left a deep memory in the people’s hearts, which is also the key reason that I discussed it in this section. At the same time, it also shows how difficult the promotion system reform is, even if it is only a small step. It can be said that the end of this reform has returned to the starting point. However, as a reform measure with more advantages than disadvantages, if it can be improved in several aspects, it is likely to succeed in the future. So, I’d like to discuss the measures of perfection later.

4.1.4 Procedure for the Appointment and Removal of Prosecutors On the surface, the appointment and removal of prosecutors seems to be only a procedural issue, but its essence will affect the independent exercise of the procuratorial power. Therefore, each country all over the world pays great attention to the appointment and removal procedures of the prosecutors, especially the chief prosecutor, and clearly stipulates them in laws. So does China.

4.1.4.1

Procedures for the Appointment and Removal of Prosecutors

The appointment and removal of prosecutors11 shall be undertaken in accordance with the powers and procedures prescribed by the Constitution and the laws. In accordance with article 18 of the Prosecutors Law in 2019, the General Director shall be removed from office by the people’s congress of the same level, while the Deputy General Directors, members of the procuratorial committees and procurators shall be appointed and removed by the Standing Committee of the people’s congress of the same level. 11

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.

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The appointment and removal of the General Director of local people’s procuratorates at various levels shall be submitted to the General Director of the people’s procuratorates at the next higher level for approval by the standing committee of the people’s congress at the corresponding level. The General Director, deputy General Direct, members of the procuratorial committees and procurators of the branches of the people’s procuratorates of provinces, autonomous regions and municipalities directly under the Central Government shall be appointed and removed by the standing committee of the people’s congress at the corresponding level at the request of the General Director of the people’s procuratorates of provinces, autonomous regions and municipalities directly under the Central Government. The General Director, deputy General Direct, members of the procuratorial committees and procurators of the dispatched people’s procuratorate of the provincial procuratorate and the city procuratorates with regions shall be appointed and removed by the standing committee of the people’s congress at the corresponding level at the request of the General Director of the dispatched people’s procuratorate. The General Director, deputy General Direct, members of the procuratorial committees and procurators of the people’s procuratorates at all levels of Xinjiang Production and Construction Corps and the special people’s procuratorate shall be appointed and removed in accordance with the relevant provisions of the Standing Committee of the NPC. Many years of practice have shown that the appointment and removal of procurators by the legislative organ have the following disadvantages: Firstly, the appointment and removal procedures are complicated, affecting efficiency and work. The Standing Committee of the NPC is not a regular office, it conducts regular meetings, sometimes it may delay the appointment and removal of procurators, which results in the appointment being delayed, similarly, the removal is the same situation. Secondly, the state legislative organ has no knowledge of the personnel and the work performances of the procuratorial organ. The appointment and removal are only approved by showing hands on the basis of the list submitted by the relevant departments and does not carry out an audit inspection of the appointed persons.12 In order to eliminate these disadvantages, my proposals to reform the current appointment and removal procedures are as follows: Firstly, the General Director of the procuratorates at all levels are nominated by the General Director of the procuratorates at the next higher level and elected and removed by the people’s congress at the same level, the Attorney General of the SPP is elected and removed by the NPC decision, the deputy General Director and members of the procuratorial committee shall be appointed and removed by the standing committee of the people’s congress at the same level at the request of the General Director at all levels. Secondly, the state-level procurators are proposed by the Attorney General of the SPP in accordance with the procedures prescribed by the law and appointed and removed by the Standing Committee of the NPC. Other procurators shall be appointed and removed by the Appointment and Removal Committee of the people’s procuratorates at all 12

See Wang Guiwu (1991, pp. 653–655).

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levels in accordance with the law and the system. Thirdly, with the exception of the General Director and legal post prosecutors, the employment system is applied to all other positions and the corresponding recruitment procedures are stipulated with the orientation of social recruitment and the implementation of contract system. Fourthly, a committee of review should be established to receive and deal with the complaints from the procuratorial personnel if they think the appointment, removal or the promotion is unfair. Then, the appointment and removal procedures will be simplified to ensure the fairness, and at the same time, reduce the pressure on the entire procuratorial system and work of the procuratorial organ.

4.1.4.2

Situations of Prosecutor’s Appointment and Removal

The newly revised Prosecutors Law has fundamentally kept the original procedure of the conditions to dismiss the prosecutors and ensure more accurate reasoning of decisions. In accordance with the stipulations of Article 20 of the Prosecutors Law in 2019, the prosecutors should be dismissed under the following situations: (1)

(2)

(3)

(4)

(5)

(6)

Losing the Nationality of the People’s Republic of China. This is consistent with the provisions of article 12 of the Law, and if he loses the nationality of the People’s Republic of China, he does not have the basic conditions to act as a Chinese prosecutor. Leaving the Procuratorate. The prosecutor who transfers his work, even to other procuratorate, must be removed from the original position in accordance with the law, and whether or not he can continue to serve as a prosecutor in other procuratorate should be undertaken in accordance with the provisions of the Constitution and relevant laws. Change of Identity. The change of position does not require the retention of the duty of the prosecutor, or he himself applies for removal from the duty of the prosecutor and gets the approval. The prosecutors are the procuratorial personnel who exercise the procuratorial power in accordance with the law, so long as they no longer assume the procuratorial duties, whether transferring to a non-procuratorial system or taking other administrative position within the procuratorial system, they should be removed from the position of prosecutor in accordance with the law. Unqualified as a prosecutor after evaluation. At the end of each year, the prosecutors should evaluate their aspects of morality, ability, diligence and discipline. If they are incompetent for two consecutive years of annual evaluation, the Prosecutors Law clearly stipulates that they should be dismissed. Unable to perform his duties due to long-term health reasons. In such cases, he or she shall be removed from the position of prosecutor in accordance with the law and other competent tasks shall be arranged for him or her according to the relevant provisions of the state. Retired, resigned or should be dismissed in accordance with the law. In these cases, it is natural that he is no longer a prosecutor.

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In addition, those who cannot continue to hold the position of prosecutor because of violating the discipline or committing offenses shall also be removed from the position of prosecutor, which is consistent with article 13 of the Prosecutors Law in 2019 that “those who have been criminally punished for an offence” may not hold the post of prosecutor. So, from these explanations, you may see under these kind of situations, the prosecutor should be dismissed from the position of prosecutor in China in accordance with the provisions of the Prosecutors Law in 2019.

4.1.5 Characteristics and Improvement Measures of the Selection System in China In fact, what kind of selection system of prosecutors a country adopts is closely related to its judicial system, cultural tradition and reality. The selection system of prosecutors is consistent with the socialist procuratorial system with Chinese characteristics, which is also suitable for the actual conditions in China. However, from the perspective of what should be, there are some aspects that need to be continuously improved. The following is a brief discussion on the characteristics and improvement measures of this selection system.

4.1.5.1

Characteristics of the Selection System of Prosecutors in China

It can be seen from the selection system of prosecutors that, because of exercising the legal authority by prosecutors, each country around the world has made quite strict provisions on the qualifications for prosecutors, such as the high standards of academic qualifications, strict selection procedures and background knowledge of the legal system. At the same time, in order to select outstanding talents, the recruitment of talent from law school graduates, many countries stipulate that people with judicial experiences in society can also become prosecutors through strict examination and selection procedures. In contrast, the selection system of prosecutors in China has the following characteristics: (1)

The requirement for the educational background is not strict

After the opening of the national unified judicial examination in 2001, the requirements are the prosecutor’s legal professional knowledge and professional and moral quality which are basically in line with the general rules of the world. However, there remains a certain gap between the requirements of educational qualifications and the screening procedure of examinations in China. As provided in the article 12 of the Prosecutors Laws in 2019, “Where it is indeed difficult to apply the conditions for educational qualifications stipulated in item 5 of the preceding paragraph, with the review and approval of the SPP, within a certain period of time, the conditions for educational qualifications of prosecutors may be lowered as undergraduate

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graduates of the universities, whatever the major is.” Although such regulation takes into account the current specific national conditions of China, it is obviously not conducive to improving the overall quality of the procuratorial team in the long term. (2)

The qualifications of the general director and deputy general director are not specified

There are clear terms and conditions for a prosecutor stipulated by the Prosecutors Law in 2019, but only general terms for the qualifications of the General Director, the deputy General Director and the members of the procuratorial committee, “The General Director of the People’s Procuratorate shall have legal professional knowledge and legal professional experiences. The Deputy General Director or the members of the procuratorial committee shall be elected from among the prosecutors, judges or other persons qualified as the prosecutor.” However, in practice, the appointment of some General Directors and deputy General Directors is interfered with and affected by the political factors. The local party and government departments and interpersonal relations are of great influence being greater than their legal knowledge and experience. In reality, their professional knowledge, the comprehensive quality and the ability to handle cases of them are not as good as that of common prosecutors. (3)

The corresponding relief measures are inadequate

The Prosecutors Law does not provide for relief procedures for unfairness in selection and appointment proceedings, and the applicants can be said to have no access to redress when they consider themselves treated unfairly. To some extent, this directly leads to the result that some people who are not good enough but through various relationships are admitted into the procuratorial team, while those who really have both moral and talented people are eliminated in the recruitment process. The same situation is true of promotions within the procuratorial organ, where those who are competent, highly qualified and do not have the ability to show off and haven’t been promoted for a long time. On the contrary, some whose work ability is not strong and the business level is not high, but who are eloquent and good at handling the relationships and a variety of affairs, are promoted for the important positions very quickly. The promotion from an assistant prosecutor to a prosecutor, in the past several decades, was only one gap for all prosecutors and it was not so difficult to them.13 However, the promotion of the administrative-level candidates is always more difficult for most prosecutors since the positions are limited and the prosecutors have 13

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.

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a strong administrative ability which has existed in any organ in China. In addition, for many years, the promotion of prosecutors has been recommended by the department director who has the power to decide who should be promoted. There is an administrative road from a general prosecutor to a deputy division director, a division director, then to a deputy department director, a department director, such as the department director of the No. 2 Procuratorial Department of the SPP. Inside this department, there are more than 20 prosecutors who handle the serious criminal cases. Each department is divided into three or four divisional offices. If these prosecutors want to be promoted to the position of deputy division director or the division director, it may fundamentally depend on the will of the departmental director. So, whether the director is fair and wise, which directly affects the atmosphere of the department. Though after the reform of the interior institutions of the SPP, the original divisions have been changed into the teams of handling cases. However, the team director still depends on the will of the department director. In the local procuratorates, the power of appointment and promotion is usually in the hands of the General Director, who is called the first hand. Therefore, the ability and wisdom of the General Director is really important for the future of procuratorial personnel and the development of the procuratorates. That’s why there was a reform of the personnel system establishing the system of promotion through competition. Unfortunately, due to the more and more disadvantages occurring in the process of implementation, a good start hasn’t occurred with the expected results. It seems the exciting enthusiastic feeling is still present when the promotion through competition occurred for the first time, this changed the essence of competition. Honestly speaking, in the history of the procuratorial promotion system, the system of promotion through competition is like a comet across the sky, whose shining moment still remains in the hearts of many senior prosecutors, but the comet itself has already passed. So, with the reform of the general environment, the enthusiasm disappeared after 2012. The problems of promotion of the procuratorial organs returned to the old way and a new starting point is required.

4.1.5.2

Measures of Improvement

While working in the government organs in China, the personal future is always closely related to the promotion. Whether the promotion is fair is the essential issue of the employment system. In the aspects of developing and selecting talents, “we must firmly put the ethics of cadres at the top of the list, and select and appoint those cadres who are politically firm, have real talents and outstanding achievements, and recognized by the mass, in order to form a promotion system that both identifies moral and talented guidance with moral self-cultivation, virtue to serve the public, virtue to lead the talented and with virtue to run the talented. We must persist in using cadres on the basis of actual achievements so that those who can do things have the opportunity to do them, those who do things have a stage, those who are honest people won’t suffer losses, those who speculate don’t get profit, with the

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purpose that all outstanding cadres can contribute to the Party and the people.”14 Guided by such spirit, talented people will arise. We must start from the problems existing in our procuratorial organs and gradually reform and perfect the system of selecting and appointing prosecutors. At present, although the Prosecutors Law in 2019 already provides for the qualifications and selection procedures of prosecutors in principle, the standardized and scientific selection and appointment procedures are more critical. The scientific selection procedure can not only save the cost of induction training for the procuratorial personnel, reduce the training time, but also block the corruption of malpractices, self-dealing and cronyism in the selection and appointment process, at the same time, it can also cultivate a good atmosphere of positive progress, fair competition and vigorous progress. (1)

Appropriate enhancement of qualifications of a prosecutor

In most countries of the world, it is reasonable to see that the requirement for a prosecutor’s education must be a bachelor’s degree in law and that the profession of prosecutor requires specialized legal knowledge and unique legal thinking in the exercise of their functions. From the vertical point of view, the qualifications of prosecutors in China are constantly being improved with the inevitable trend of social development. With tens of thousands of law graduates from colleges and universities each year in China, it is necessary and feasible to raise the qualification of prosecutors to a bachelor’s degree or master’s degree in law for those whose undergraduate major is not law. In other words, the stipulations of the Prosecutors Law in 2019 should delete the exceptions of the requirements of education, which will be better for improving the quality of future prosecutors in the procuratorial organs in China. (2)

Making the selection procedures more strict

In order to ensure that prosecutors have the high quality they need to perform their duties, Western countries generally have a more rigorous selection and appointment process, which is open and transparent, not only that the procedure is fair, but also that the result is fair. The procuratorial organs at all levels in China should formulate reasonable and specific procedures for selecting and appointing leading cadres within the procuratorates and recruiting talents from the society. At the same time, they must strictly implement the procedures to avoid using the procedural justice to cover up the unfairness of the facts and results so as to ensure the maximum selection of the outstanding talents. Fair promotion is not only a blessing of procuratorial career, but also a key window to show the credibility of the procuratorial organs. Taking the promotion through competition which was once spectacular as an example (maybe it will be used again in the future and it is the same as the recruitment of prosecutors), and starting from the actual situations of the procuratorial organs in China, it can be perfected in the following ways, especially for selecting the primary prosecutor:

14

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

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Increasing the transparency of procedures

Whether in the selection of a primary prosecutor or the selection for the higher position of prosecutor, the transparency in procedures is most important and crucial. The purpose of promotion through competition is to ensure the outstanding talents stand out through an open and fair selection procedure and promoted to the capable leadership positions. Since the interview can already be live broadcast, why not disclose the results of the interview or allow the participants to have access to the scores? Since such promotion is through competition by written examinations and interview, the results should be open just like the entrance examinations for the universities. Actually, the results are complementary to the public process of the interview, and the disclosure of the results can also help to restrict and supervise the examiner’s scoring. It can also make the losers feel sincerely convinced, rather than, as is currently the case, it is difficult for a competitor who feels unfairly treated to check the results of the interview or evaluation. Complaints to the discipline inspection department will undoubtedly greatly increase the transparency of the process as a whole, the credibility and persuasiveness of the final outcome. B.

Respecting the results of examinations

As a Chinese proverb goes: no rules, no square. Since the examination is used to recruit and select the best talents, the results of the examinations are taken as the measure of the talents, in theory, the final results must be determined by the scores of the exams. In addition, the examination process reduces the involvement of human factors, such as feeling, relationship and impression of the examiners. It is difficult to be fair and just in making the choice of someone with honesty and integrity, especially in the social environment of impetuous snobbery. So, the simplest approach is like the university entrance examinations, results are the gauge of performance. If there is concern of selection on one test, questioning at interview broadens the scope of assessment. C.

The composition of the examiners should be secret and defamiliarized

If it is deemed unfair to decide on who can eventually enter the procuratorate or be promoted on the basis of an examination alone. However, at interview, an examiners’ ratings may not be so objective and fair. Perhaps there are some reasons, in reality, some relevant examples can also be found. Therefore, in addition to the examination questions, at interview, the examiners can test out the real talents. It is necessary to reform the composition of examiners and the key point being examiner group is secret and the leaders of the department conduct the interview, so that the competitors cannot influence the result in advance. To avoid the adverse effects of years of interaction among colleagues, the composition of examiners committee should be adjusted and reformed accordingly by having members from outside organizations. In this way, as long as the examination questions are good enough, and then according to the objective scores of examiners, the people selected according to the results of the examination should relatively good talents. As the leader of the department with the position, if you want to select your own satisfactory competitors, you can make

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an effort on the business questions, so that people who are not familiar with the business or whose business ability is general will be eliminated at interview, and all aspects of the relatively good people may stand out. It still seems to look good to avoid competitors who are eloquent and talkative but whose practical ability is not adequate. Such practice is not too difficult to implement, but it can get double the result with half the effort. D.

Playing the role of supervision really

In today’s society, the supervision is necessary though sometimes the supervision may be weak. It’s often just pretending to supervise. It is reasonable to say that the procedures for promotion through competition are quite complete, and in order to prevent violations of law and discipline in competition and ensure a fair, orderly and effective competition, the discipline inspection and supervision departments as well as the party committee must participate in the whole process of selection and appointment, and carry out the synchronous supervision which links every procedure. For example, before the examination, the Political Department and the discipline inspection team send a special person to collect the test paper. During the interview, the person in charge of the discipline inspection team and the party committee of the organization shall act as the permanent judge and conduct on-site supervision. When counting the votes, the political department and the discipline inspection team and the party committee of the organization shall send persons to be in charge of the uniform checking. In addition, a special “Notice on Strengthening Supervision and Earnestly Management of Solicitation in the Selection and Appointment of Officials of the Supreme People’s Procuratorate” was issued, which forbids the solicitation and published the telephone number of the supervision personnel in order to timely investigate and verify various problems reflected by the colleagues. But what made people wonder was: why was the credibility of promotion through competition getting worse? Perhaps the question to be asked was: Was the supervision of every element of selection really working? However, it was also possible that all the previous links were relatively fair, the problem happened while the leader of the department with the position preferred to select one from two in the finalists. To be honest, from the perspective of the bystanders, regardless of the specific reasons, as a competitive supervisory department or personnel should be faithful to their duties and give full play to their supervisory role. Let those who attempted to gain undue advantage in competition or engage in corrupt practices have scruples and be unsuccessful. E.

Establishing a committee of complaints and relief

Under the current procuratorial system of China, my suggestion is to set up a special committee to receive complaints and review them. The committee is responsible to deal with the unfair phenomenon in recruitment and promotion. Perhaps from the perspective of humanity, as long as people participate in that matter, it is difficult to realize the complete fairness and justice. In the promotion system, whether it is the focus training or the promotion through competition, the interpersonal relations account for considerable weighting. History identifies constant improvement, the society is constantly developing and the human intelligence is endless. If people really

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want to do something, they can do it quite well. For example, the system of promotion through competition, from the procedural point of view, it was really impeccable. Not only the program of selection and appointment was published in a timely manner, but the relevant requirements, qualifications and selection procedures for vacant positions were publicly available on the local area network of the department. In addition, the participant registration was updated in real-time together with the selected subjects for difference inspections. After the short listing of the proposed candidates was made, the list was publicly announced. Moreover, in the whole process, if there were policy questions raised, the answers were made timely online. At the same time, in the competition of leading positions at the division level, the written examination results were open for review in order to increase accountability. Objectively, all was quite good, but the biggest drawback was the lack of a complaint and review procedure. Those who had been unfairly eliminated in the competition process had no channel to put forward their complaints. Therefore, in order to improve this procedure, it is necessary to establish an independent committee of complaints and relief. As German Law stipulates, in order to ensure the impartiality of the promotion of prosecutors, after the Ministry of Justice has published the preliminary results, each applicant for registration has the right to challenge in the Administrative Court that he was better qualified for the position. Prosecutors often challenge promotion decisions and review them through the administrative procedures. A similar practice exists in Australia, where prosecutors, in the recruitment or promotion process, if they feel that they have been unfairly treated, can seek review from such committees without any worry. Sometimes, the investigations have even been carried out against the DPP who has made unfair promotions, such as the one launched earlier in 2011 against Jeremy Rapke QC, who was the director of the Office of the State of Victoria in Australia. This provoked the public outrage since he promoted a relatively junior female colleague at the end of 2010.15 Australia hasn’t found a case of criminal offenses such as judges or prosecutors accepting bribes for a century because of such strict supervisory and regulatory procedures. A person’s career starts at every step of promotion the results must be fair and transparent. Undoubtedly, this contributes to the integrity of the profession and the maintenance of moral virtue. In fact, a reasonable procedure of complaint and relief is an indispensable part of designing the whole promotion program; otherwise, all previous efforts in reforming the process will be lost. Corrupt people can do whatever they want, use relationships, run to the back door without any fear of behaviors being detected, prosecuted or punished. Of course, no system is perfect and it depends on the honesty and integrity of those who supervise and implement the selection procedure. However, the system and procedure can be designed to put an end to the corruption, the violations of law and discipline as far as possible, it is conducive to making the outstanding talents stand out and form a vibrant selection and promotion mechanism, which requires hard work. For example, in the process of selecting and promoting cadres, we should make great efforts to take measures to improve the transparency and credibility of 15

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

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selection by running through the whole process openly and making full use of the achievements of information construction networks, video, television and telephone, as well as strengthening the supervision of external agencies by adding the procedure of complaint and review, which will contribute to the fairness of the selection and promotion of cadres. As to the promotion of prosecutors, in addition to excellent work performance, the ability and moral quality also play a very important role. So, the result justice is as important as the procedural justice. From the prosperity of a country to the harmonious development of a department, to some extent, the corruption of employment and promotion is of greatest concern. If the examination is only a form or a “shield” for some people’s corruption, it may eventually lead to widespread corruption, the loss of credibility and the collapse of the whole reform process. Finally, it is important to note that the manner in which a state selects prosecutors is not arbitrary, but is closely linked to various factors, such as the structure of state authority, the nature of the prosecution service and its status in the state institutions. In a country where the prosecution service belongs to the administrative system and the prosecutorial power is clearly defined as the executive power, it is logical for the administrative service to appoint and remove a prosecutor. It is also customary for prosecutors to be appointed by the Head of state in countries where the prosecutors are in the rank of judicial officials. In China, the procuratorial organ is produced by the people’s congress, supervised by the people’s congress, and is responsible for and reports to it. Its nature is a state organ of legal supervision, which determines that the procuratorial organ of China should be organized by the people’s congress and the procuratorial personnel should be appointed and dismissed by the people’s congress. “The people’s congress’ power to organize and appoint the procuratorial organs is under the socialist democratic system and under the power structure, which we must adhere to and cannot waver.”16 In addition, the law of China stipulates that General Directors of the people’s procuratorates of provinces, autonomous regions and municipalities directly under the Central Government and the General Director of the branches of the people’s procuratorates are elected and removed by the people’s congress at the same level, and the appointment and removal of provincial General Director must be reported to the Attorney General of the SPP for approval by the Standing Committee of the NPC. That is to say, the General Director of the provincial procuratorates must be elected by the people’s congress at the same level. On the one hand, and at the same time, it must be submitted to the SPP for approval by the standing committee of the NPC. Clearly, this provision confuses the line between the two different powers of election and superior approval. From practice, although the Constitution of China stipulates that the procuratorial organ should exercise “double leadership”, which is that the local procuratorates at all levels should be responsible both to the organ of state power that gives rise to it and to the people’s procuratorates at higher levels, in fact, the provisions of the law that local procuratorates are under the leadership of the procuratorial organ at higher levels are virtually null and void, and a local 16

Bian (2006, p. 197).

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procuratorate is actually responsible to the local party and government—because the power to appoint and nominate a local General Director lies with the local party committee, and when the opinions of the higher procuratorate and the local party committee are inconsistent, the opinions of the local party committee are generally respected. Moreover, the funds of the local procuratorial organ come from the local finance, and the “subsidization” of the status of the procuratorial organ and the “localization” of the procuratorial power are also inevitable. However, such situation has been changing gradually in recent years.17 To realize the real leadership of the procuratorial organ at higher levels over the procuratorial organ at lower levels, and to avoid the local procuratorial organ being controlled by the local party and government leaders, the most effective method is to give the SPP and the People’s Procuratorate at a higher level the power to nominate the candidates for the General Directors of the People’s Procuratorate at a lower level.

4.2 The Hierarchy of Prosecutors in China The main purpose of grading prosecutors is to facilitate management and point out the way forward for prosecutors to strive in their life. Due to the level of prosecutors is directly linked to their salary and other benefits. Therefore, the scientificity and rationality of grade division will directly determine whether its purpose can be realized smoothly or not, otherwise it will have some adverse consequences in practice. So, prosecutors all over the world have their different levels, so do the Chinese prosecutors.

4.2.1 Present Status of the Hierarchy In accordance with the provisions of the revised Prosecutors Law in 2001 and its regulations, the hierarchy of public prosecutors in China was divided into 12 levels. There are detailed provisions of qualifications for each level. The article 27 of the newly revised Prosecutors Law in 2019 still stipulates the hierarchy of Prosecutors with 12 levels, which includes three grades of grand prosecutors, senior prosecutors (four levels from 1 to 4) and prosecutors (five levels from 1 to 5). The grand prosecutors include the chief grand prosecutors, the grand prosecutor of first level (the deputy directors of the SPP and the directors of procuratorates at provincial level) and the grand prosecutor of second level. The Attorney General of the SPP is the chief grand prosecutor, and the deputy General Directors are the grand prosecutors. 17

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.

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The general directors of the departments from No.1 to 10 of the SPP are the senior prosecutor of first level, the others are the like. All of them are post prosecutors. In accordance with the stipulations of the Article 29 of the Prosecutors Law in 2019, the determination of the rank of the prosecutor is based on the performance of the prosecutor’s virtue, professional level, actual performance of the prosecutorial work and years in service.

4.2.2 Characteristics of the Hierarchy of Chinese Prosecutors The characteristics of the so-called hierarchy are mainly seen from a comparative perspective. Compared with the prosecutor hierarchy of other countries in the world, the prosecutor hierarchy of China mainly has the following characteristics.

4.2.2.1

Detailed Level Division

Compared with the hierarchy of prosecutors in Western countries, the hierarchy of the prosecutors in China is divided into 12 levels currently, which is the same as what was stipulated in the revised Prosecutors Law in 2001. That is to say, after nearly 20 years, such stipulation hasn’t been changed a little though the article 27 of the Prosecutors Law in 2019 stipulates that “the prosecutor shall be rotated in the management of different positions.” I have to say such division is quite meticulous, and the determination of their hierarchy is closely connected with their positions, and bureaucratic tendency can result. In addition, the establishment of the rank of prosecutors has not yet got rid of the administrative sequence of civil servants and has lacked independence. Therefore, in order to make the hierarchy of prosecutors more structured and to eliminate the administrative and bureaucratic issues in the management system, it is necessary to list the ranks of prosecutors and determine them based on the prosecutors’ performance and years of work and promotions. In addition, the promotion procedure must be open and transparent, and the corresponding review measures should also be specified.

4.2.2.2

Using the Standard of Evaluation for a Civil Servant

At present, the Prosecutors Law in 2019 has only made some principled provisions on the determination of the level of prosecutors, the establishment of the level, the standard and content of the evaluation. In order to implement the provisions of the Prosecutors Law,18 the Organization Department of the CPC Central Committee, the Ministry of personnel and the Supreme People’s Procuratorate have jointly issued the 18

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.

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Provisional Provisions of the People’s Republic of China on the level of prosecutors dated December 25, 1997. The specific provisions on the establishment, evaluation and promotion, reduction and cancellation of the level of procurators have been addressed. Over the years, the evaluations and promotion of prosecutors are basically equal to that of civil servants. If they did not improve their positions, the salaries and treatment of prosecutors would not go up, which led to all prosecutors crowding on the bridge of administrative-level promotion, and not only caused the waste of human resources, but also brought about the difficulty of promotion. Now more than 20 years have passed, it is still necessary to further revise and improve these regulations from the perspective of development to see whether they are adequate and reasonable, whether they are conducive to the cultivation and emergence of talents and whether their specific implementation measures conform to the procedural outlook on development. Since 2018, a revision on stipulations has occurred and prosecutors can enjoy better career prospects with the title of senior prosecutors, second level. However, there is no essential change in the duties that the level of prosecutors enjoys and it is still closely linked to the administrative rank. Therefore, when the time is right, the bianzhi (编制),19 evaluation and promotion standards of prosecutors should be defined in detail by the legislation.

4.2.2.3

Lack of Clear Division of Power

Most countries in the world have stipulated the hierarchy of prosecutors, and correspondingly clearly set the powers of prosecutors. For example, the Crown prosecutors of the Office of the Director of Public Prosecutions of the New South Wales in Australia,20 whose law clearly stipulates that the Crown prosecutors can enjoy the power to handle cases independently, including increasing and decreasing the number of crimes, whether to accept the defendant’s confession, etc. However, in China, although the prosecutors are divided into four grades and twelve levels, except for some clear provisions on the power of the directors of the procuratorates at different levels, there are no clear and specific provisions on the power of the common prosecutors between different levels. The lack of corresponding norms, in practice, has caused the procuratorate to usually arrange and assign the work of the prosecutor in the form of an administrative order. In the process of handling cases, the multiple steps of examination and approval or collective discussion are adopted. Prosecutors therefore lack independence and sense of responsibility, and this not only weakens the individual role of the prosecutor, but also limits the applicant of his ingenuity and wisdom to efficiently handle cases. In recent years, the procuratorial reform, 19

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. 20 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.

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especially after the reform of judicial responsibility system and quota control of prosecutors system, the SPP and many local procuratorates have made a list of prosecutor’s powers. This review establishes a clear division of powers between the director of the procuratorates and the prosecutors, the prosecutors and the assistant prosecutors. Since the division for the prosecutors with 12 levels is too detailed, the power list is not so detailed. Therefore, it is necessary to clearly define and stipulate the functions and powers of prosecutors at all levels according to the actual situation of the current procuratorial work so that the better performs of the functions of the procuratorial organ can occur.

4.2.3 Analysis on Hierarchy of Prosecutors In order to facilitate the direction, supervision and management of prosecutors, most countries in the world divide prosecutors into several levels, and the level has become basis for determining the salary and duties of prosecutors. On the one hand, the difference in the level of prosecutors can reflect the difference in age and ability; on the other hand, it also points out the direction of struggle for the efforts of low-level prosecutors. The establishment of the rank of the prosecutor is generally closely related to the establishment of the procuratorial organ in the country, and the rank is mainly determined by the position of the prosecutor. In China, due to the leadership and subordination relationship between the superior and the subordinate, the position structure of the prosecutor shows the characteristics of bureaucratic system. The Attorney General of the SPP is at the top of the “pyramid” hierarchy structure of prosecutors. According to the provisions of the Prosecutors Law and relevant laws and regulations revised in 2019, at present, the level of prosecutors in China is divided into 12 levels, the Attorney General of the SPP is the chief grand prosecutor, and the prosecutors from the second to the twelfth level are the grand prosecutor, senior prosecutor and prosecutor. These grades are determined according to the position, moral and talent performances, professional level, actual procuratorial work and the number of working years as a prosecutor. From the perspective of the world, no matter the countries in the Civil Law system, such as France, Germany or the countries in the Common Law system, such as the United States, Britain and Australia, their classification of the prosecutor’s level is rough line, generally the prosecutors are divided into two to four levels. The common point of the two legal systems in the level system of prosecutors is that there are not many levels set up, and they even intend to eliminate the level differences between prosecutors. For example, Germany does not have any level differences between prosecutors. France has been working for many years to eliminate the level between judicial officers and try to reduce and simplify the level of judicial officers. This approach is in line with human nature and the professional characteristics of prosecutors. The main reason for this is that although the division of grades helps to organizationally manage and carry out the work of the prosecutor, it also helps to

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enhance the prosecutor’s sense of responsibility and honor and stimulate the prosecutor’s motivation and struggle spirit. However, if the classification is too detailed, it will inevitably produce some side effects, such as not being conducive to adequate assessment and management of the work performance of the prosecutor. Sometimes it is not easy to judge the subtle differences between the prosecutors; at the same time, it may also make prosecutors too sensitive to the level problem because the level is directly linked to the salary. Serious-level awareness can easily lead to disharmonious factors in the procuratorial team. In contrast, the hierarchy of prosecutors in China is currently divided into twelve levels, which seems too trivial, and the determination of its level is closely connected with the administrative position, so the bureaucratic tendency is very obvious. The establishment has not yet got rid of the administrative sequence of civil servants and lack of independence. In fact, the rank of the prosecutor and the rank of holding a leadership position are two separate sequences and should not be confused. The rank of the prosecutor in a leadership position does not necessarily have to be higher than that of a prosecutor engaged in procuratorial work, and the evaluation standards of the two are not completely the same. A person with leadership abilities may not necessarily have a strong case-handling ability, and an expert in handling a case may not necessarily be a good administrator. Therefore, in order to make the prosecutor’s hierarchy more structure and remove the administrative and bureaucratic problems of the management system, it is necessary to make the prosecutor’s rank list independently and determine the rank based on the prosecutor’s work performances and work years, especially, it should be emphasized that the rank of the prosecutor has nothing to do with the administrative level. At the same time, we should stipulate open and transparent promotion standards and procedures as well as the corresponding feasible complaint channels and remedies. There should be a hierarchy difference between prosecutors, but such difference should not be too detailed.

4.3 Training System of Prosecutors “Judicature is the last line of defense for social equity and justice. To achieve judicial justice, we must have high-quality judicial officers. The development of judicial officers’ professional quality depends on the strict and standardized vocational trainings.”21 So, in order to continuously improve the professional quality, professional ability and ethical standards of the prosecutors and ensure the elite of the prosecution team, all countries in the world implement the planned and organized trainings for the prosecutors in accordance with the needs of the prosecution work, and impart legal expertise and special work skills to the trainees. This kind of training is very purposeful and targeted, whether before or after the appointment, the purpose is to focus on the requirements or development needs of the prosecution work. According 21

Liu (2008, p. 24).

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to the political, professional qualities and work ability of the prosecutor, such training provides the prosecutors with corresponding training content individually, which provide prosecutors with better training channels and opportunities to perform their duties, and enable prosecutors to keep up with the pace of knowledge update and skill development in order to become competent prosecutors. Due to the differences in the historical traditions, judicial systems and educational systems of each country, the specific training measures for prosecutors are unique.

4.3.1 Current Situation of the Training System of Prosecutors According to the provisions of Article 32 of the Prosecutors Law in 2019, the prosecutors in China should be systematically trained in politics, theory and business in a planned manner, with the requirements for such trainings to implement the principles of linking theory with practice, teaching on demand and stressing the practical results, which shows that China also pays great importance to the training of prosecutors. The training of prosecutors is related to the long-term plan of the construction of the procuratorial team in China and is essential to promote the improvement of the cultural and professional structure of the procuratorial team, improve the overall quality of the prosecutor and promote the comprehensive development of the procuratorial cause. With the vigorous development of the procuratorial work in China in recent decades, in order to speed up the construction of China’s procuratorial team to meet the needs of procuratorial work in a new era, to further improve the scientific level of procuratorial education and training and cultivate a high-quality procuratorial team, in accordance with the spirit of the “2010–2020 Cadre Education and Training Reform Outline”22 and the provisions of the Prosecutors Law as well as the actual situation of the procuratorates, in September 2011, the eleventh Party Group of the SPP discussed and adopted the “2011–2020 the Guiding Opinions on the Reform of Procuratorial Education and Training for 2011–2020 (hereinafter referred to as the “Guiding Opinions”) in 168th meeting, which has set new goals for the training of prosecutors and pointed out the direction and path for further improving the education and training system. Moreover, according to several documents, such as the Regulations on Cadre and Training of the CPC Central Committee and the Opinons on Strengthening the Political and Legal Team under the New Situation, the twelfth Party Group of the SPP the SPP also passed the Procuratorial Education and Training Plan during the 13th Five-year-plan on December 26, 2016 (hereinafter referred to as “the Plan”). Since the Guiding Opinions and the plan are still working for the procuratorial education and training work, whose contents are similar and there is no new one made yet though the 14th Five-year-plan of the country began in 2021. So, the following discussions are still on the basis of these two documents, especially the Guiding Opinions. In addition, on January 10, the 15th National Conference of 22

The Central “2010–2020 Cadre Education and Training Reform Outline”, http://www.gov.cn/ jrzg/2010-08/17/content_1681885.htm.

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General Directors of the procuratorates was held in Beijing. The meeting comprehensively deployed the procuratorial development plan during the 14th Five-Year Plan period and defined the objectives and tasks of procuratorial work in the new development stage.23 The following is an overview of the present prosecutor training situations in China, based on these two documents and the general requirements for the development of procuratorial work during the 14th Five-Year Plan period, combined with the practice of procuratorial education and training across the country.

4.3.1.1

Guiding Ideology and Basic Principles of Training

For decades, with the continuous development of procuratorial work and the continuous improvement of education and training, the “Guiding Opinions”, when describing the guiding ideology of training, combined with the current focus of procuratorial work and the new requirements of training, it is expressed as: holding high the great banner of socialism with Chinese characteristics, taking Xi Jinping’s socialist ideology with China’s characteristics in the new era, Deng Xiaoping Theory and the important thoughts of the “Three Represents” as guidance, thoroughly implementing the scientific development outlook, focusing on promoting the construction of a learning party organization and a learning procuratorate, with the goal of establishing and improving the procuratorial education and training system with Chinese characteristics, by paying more attention to improving the quality of training and focusing on the reform of the system and mechanism as well as continuously improving the scientific level of procuratorial education and training, with the purpose of fully implementing the strategic task of training cadres on a large scale and greatly improving the quality of cadres, so as to provide an ideological and political safeguard, talent guarantees and intellectual support for the scientific development of procuratorial work.24 Although there are some differences between the “Training Plan”25 and the “Guiding Opinions” in terms of specific expressions in different periods, the general guiding ideology, that is, the party’s guiding ideology is the guiding ideology for procuratorial education and training is completely consistent, and at the same time, according to different themes and key procuratorial work in different periods, the objectives of training work have been continuously improved, such as from “largescale formal training” to “improving training quality”, from “high-level talent training” to “significantly improving the quality of cadres”, which makes the work 23

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/. 24 For details, see the “Guiding Opinions on Procuratorial Education and Training Reform for 2011–2020” by the Supreme People’s Procuratorate. 25 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.

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of education and training closely related with the development and needs of the procuratorial undertaking. Generally speaking, this guiding ideology is clear and specific, with both macrolevel guidance and micro-level work objectives. For example, during the “Eleventh Five-Year Plan” period, the specific objectives of China’s procuratorial education and training work were determined to strengthen legal supervision and the professional construction of the team. At the same time, the focus of the training was also defined as leading cadres and prosecutors on the frontline of business, and emphasizing the need to carry out regular on-the-job training to promote the cultivation of high-level talents. It also focused on training prosecutors in the local and Western procuratorates so that they could keep pace with the development of procuratorates in advanced regions with comprehensively improving the quality of education, and paying attention to the effectiveness of training in order to meet the talent challenges for the procuratorial work under the new situation. The “Guiding Opinions” sets the training goal for the next ten years (2011–2020) as the establishment and improvement of the procuratorial education and training system with Chinese characteristics with continuously improving the scientific level of education and training and fully implementing the large-scale training of cadres…. Obviously, in the past few years, the training of prosecutors has made great strides and started a new journey in China.

4.3.1.2

Basic Principles

The “Guiding Opinions” issued by the SPP not only establishes the guiding ideology of the education and training work of the procuratorial organs in China for 2011– 2020, but also stipulates several basic principles, which can be summarized as: (1)

Serving the overall situation and putting people first

The goal of education and training is not only to improve the professional level and ability of the procuratorial cadres, but also to continuously improve the political and theoretical quality of the entire procuratorial team since the development of procuratorial work should serve the overall situation of the country and meet the needs of economic and social development. In the training process, we must guide the training and learning with Chinese Marxist ideas, promote the reform of procuratorial education and training based on the overall plan of the development of the party and the country, and integrate the socialist idea of rule of law into the training contents, while emphasizing the professional ethics and professional discipline education so as to make the team of prosecutors in China have a higher professional ethical quality and self-discipline ability. In addition, we must emphasize the prominence of subject position of prosecutors in training and meet the training needs of posts and individuals as well as continuously improve the training satisfaction. The on-the-job training of prosecutors is to improve the procuratorial personnel’s case-handling skills and working abilities, which has a

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strong purpose and pertinence. Different trainees need to improve and learn different knowledge. So, it is appropriate to put people first and impart appropriate professional knowledge and skills, otherwise it will be difficult to achieve the desired results. At the same time, in order to ensure the effectiveness of the training, various types of training should be institutionalized and the corresponding training objects and time should be specified so that on-the-job training not only becomes the right of each prosecutor, but also gives them the right to enjoy a certain amount of on-the-job training or off-the-job training every year. (2)

Adhering to the overall promotion and highlighting the key points

The on-the-job education and training of procuratorial cadres must comprehensively improve the overall quality of prosecutors, which must be “three” facings, that is, facing the front line, facing the grassroots and facing the west, and highlighting the training of leading cadres and young and middle-aged business prosecutors, with speeding up the training of high-level talents, strengthening the law enforcement ability training with case-handling skills as the core, achieving point-to-face integration and highlighting key points and as well as coordinating various education and trainings at all levels. At the same time, we must implement an overall planning and comprehensive development as the basic methods of education and training and vigorously promote the reforms. Only in this way can we promote the coordinated development and common progress of the procuratorial organs across the country. (3)

Adhering to advancing with the times, reform and innovation

In modern society, the development in various fields is very rapid. In order to adapt to the development of procuratorial work and the challenges faced by the new situation, the education and training of prosecutors, on the basis of inheriting the effective systems and successful experiences in previous work, should also determine the training content based on the needs of the development of procuratorial work and the actual needs of procuratorial personnel with reflecting forward-looking. At the same time, in order to improve the training effect, we must also solve the systemic, institutional and safeguarding problems in the procuratorial education and training by reform and innovation. In terms of educational methods, we must broaden training channels, constantly explore new training models and new teaching methods in order to fully mobilize the enthusiasm of trainees and learning initiative, and being good at learning and drawing on advanced education and training experiences in foreign countries with actively and steadily promoting the reform and innovation of education and training as well as promoting the scientific development of training. (4)

Quality first, stressing efficiency

The training of prosecutor is different from the mass production of industrial products. In order to achieve the real achievement, we must pay attention to the quality of teaching, cultivate brand teachers and excellent courses so as to make the classroom teaching both informative and vivid, but also targeted and rich. The trainees have

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different positions and different experiences, and their needs for training contents are also different, and even very different. If we hope the prosecutors to learn something and use it after a short period of concentrated training, they must be tailored in the course arrangement and teaching contents. In short, the quality of teaching is the life of training and a key factor in establishing a good reputation. Otherwise, it will only cause a huge waste of manpower, material resources and financial resources. In addition, while emphasizing the quality of teaching, we must also pay attention to efficiency and fully implement the task of training prosecutors on a large scale.

4.3.2 Training Institutions and Main Objectives There is a very close relationship between the training institutions and the main objectives of training. In other words, the level of training institutions directly determines whether the main objectives of training can be achieved or not. Since the management level of training institutions, teachers and training venues are very important to improve the quality of training, so in China, there are clear provisions in relevant laws on what kind of institutions is qualified to hold the training programs for Chinese prosecutors.

4.3.2.1

Training Institutions

The article 34 of the Prosecutors Law in 2019 clearly stipulates that the training institutions for prosecutors shall undertake the task of training prosecutors in accordance with relevant regulations. In China, there is National Prosecutors College in Beijing and other branches of it in each province. So, these colleges are responsible for the education and training of prosecutors in China. In order to adapt to the characteristics of the vast territory, large number of prosecutors and heavy training tasks in China, the specific training institutions can be divided into national and local levels. At present, the national-level training institution is National Prosecutors College under the supervision of the SPP, which mainly trains the prosecutors with leading positions and those backbones (outstanding prosecutors). The local-level prosecutor training institutions mainly refer to locally established prosecutor training institutions in each province as the branches of National Prosecutors College, such as Tibet Branch of National Prosecutors College, Zhejiang Branch of National Prosecutors College. They are mainly responsible for the training of prosecutors in their jurisdiction, sometimes, some well-known training colleges may hold commissioned training programs for those prosecutors from other provinces. For example, in May, 2018, Zhejiang Branch of National Prosecutors College held a training class for the prosecutors from Henan Province. Since On April 3, 2018, the Supreme People’s Procuratorate issued the “Provisions of the Supreme People’s Procuratorate on Several Issues Concerning the Appointment and Engagement of Persons with Special Knowledge

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to Participate in Handling Cases (Trial)”,26 the prosecutors were eager to know how to invite a suitable expert witness to engaging in dealing with cases involving special knowledge, how to judge the admissibility of expert evidence in such case and so on, therefore, it was specially necessary to hold such training class in order to provide the prosecutors with a chance to learn how to accurately applying the latest laws and provisions. Such training based on demand naturally had a good effect. During this training programme, I was invited to give a lecture on the topic of expert witness and expert evidence”,27 which was well received by those prosecutors. In addition, the business departments of the SPP and China Society of Prosecutors also hold some training programs with special topics each year, for example, the topic of supervision on investigations and skills of handling cases, skills of interrogation and the protection of human rights, etc. Usually, China Society of Prosecutions holds two training classes each year with the cooperation of foreign institutions, such as Danish Institute of Humans Rights, U.S.-Asia Law Institute at NYU School of Law. So, generally speaking, from the perspective of the establishment and distribution of prosecutor training institutions, it is rather in line with specific national conditions in China.

4.3.2.2

Main Objectives

According to the provisions of the “Guiding Opinions”, the main objectives of the training are: to establish and improve an education and training system with procuratorial characteristics that meets the requirements of the scientific outlook on development, adapts to the cause of socialism with Chinese characteristics and can give full play to its basic, leading and strategic role, and has a solid foundation, sufficient resources, sound training system with science mechanism, which is still the main goals to be achieved in the next few years. Specifically, it mainly includes: In terms of the training institutions, we should establish and improve a threedimensional and open training system with the national prosecutor’s college and 26

On April 3, 2018, the SPP issued the “Provisions of the Supreme People’s Procuratorate on Several Issues Concerning the Appointment and Engagement of Persons with Special Knowledge to Participate in Handling Cases (Trial). With the purpose to meet the requirements of the outline of the development plan for procuratorial work during the "Thirteenth Five-Year Plan" period: building an open expert database of scientific and technological talents, exploring and advancing the application of remote assistance of experts in handling cases, and standardizing the testimony of persons with expertise in court. 27 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”.

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its branches, provincial procuratorial education and training institutions as the main channels, supplemented by municipal procuratorial education and training institutions, colleges and universities and other training institutions, and widely used the network training. Especially after the outbreak of the Covid-19 at the beginning of 2020, the network training has been playing a vital role in training prosecutors. For example, after the promulgation of the Civil Code of P.R.C,28 National Prosecutors College held a week-long online training program for those prosecutors engaged in civil procuratorial work all over the country at the beginning of July, 2020. In terms of the operation mechanism, we should establish and improve a standardized, orderly, sound and efficient education and training operation mechanism guided by the training needs, closely connected with training plan generation, organization and implementation, assessment and evaluation by combining with incentives and constraints. In terms of the training mode, we should establish and improve an education and training mode that follows the law of cadre growth and education training with advanced training idea, rich content and scientific methods as well as the targeted, effective and interesting training model. In terms of the management system, we should establish and improve a macro management system that promotes to make the procuratorial education and training scientific, the unity of guidance and service, the combination of planning and supervision with clear responsibilities, sound system, strong guarantee and remarkable efficiency. In terms of the training objects, it is mainly for local procuratorial personnel and absorbs all kinds of excellent talents to participate, especially during the 14th FiveYear Plan period, the guidance of strengthening the local organs is an important aspect of the overall requirements. The training work should also take such guidance as the guiding ideology, fully strengthening the training of prosecutors from the local procuratorates and improve their working ability and level. In terms of the teachers, we should establish a scientific and reasonable mechanism for the selection, training and evaluation of teachers. Particularly, those senior prosecutors and Directors of the procuratorates at all levels with rich practical experiences should be invited to give lectures for the training classes. At the same time, the excellent judges, police and lawyers should also be invited to give lectures so as to further promote the practice of joint training of the public security organs, the procuratorial organs, the courts and the judicial bureaus.29

28

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. 29 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.

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4.3.3 Training Contents The training contents of the prosecutor directly determine whether the training objectives are achieved or not, and also determines the effectiveness of the training. In order to meet the different needs of different training objects, the training contents should be colorful. At the same time, in order to achieve the satisfactory results, it is also crucial for the trainees to learn industriously and study hard. The article 33 of the Prosecutors Law in 2019 also stipulates the training of prosecutors as one of the basis for their appointment and promotion, which shows that the training of prosecutors is a necessary condition for their appointment or promotion. On the other hand, it also shows that the training is not a formal walk through, it needs to learn true knowledge and true skills. At the same time, this provision also makes the training of prosecutors become an important part of prosecutor management, and is a specific embodiment of the institutionalization of prosecutor training, which is of great significance to promote the training of prosecutors, to improve the training institutions and implement the training plans. Due to the large number of prosecutors and historical reasons in China, the quality and level of prosecutors are uneven. Quite a number of prosecutors have relatively low levels of education, theoretical literacy and professional knowledge. The task of on-the-job training is particularly arduous. Since the implementation of the unified judicial examination in 2001,30 this situation has gradually been improved, and the overall quality of prosecutors has been continuing to be improved. The contents of the prosecutor training have also changed from the previous education mainly based on academic qualifications to the job-based training, which means from basic training, supplementary courses, emergency training to professional, systematic and standardized training, from knowledge-based training to quality-based and abilitybased training, etc. In order to directly improve the prosecutor’s case-handling skills and the ability to use laws to solve practical problems, the professional skill training will become the focus of future prosecutor training in China, while the theoretical training should focus on the research dynamics and frontier issues in the legal field related to procuratorial business so as to improve the prosecutor’s theoretical quality, strengthen his ability to use theory to guide the practical work and analyze difficult problems, with the purpose to cultivate expert talents who have rich practical experiences and can also carry out the legal theory research. In the words of the Attorney General Zhang Jun of the SPP, in the new era, the prosecutors should strive not only to become a “artisan” who is sensitive to think how to handle a case well, but also strive to become a “polymath” who grasps and applies the judicial and procuratorial policies well.31 30

The unified judicial examination in China means the examinations of qualifications for judges, prosecutors and lawyers, which began in 2001. 31 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.

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In order to better cope with the challenges faced by the procuratorial work in China in the new era, improve the training methods for talents and accelerate the construction of procuratorial talent teams focusing on high-level talents, it is necessary for us to further improve the work pattern of talent training with a unified planning, hierarchical organization, training with division of labor, combination of blocks and complementary advantages. Therefore, the Procuratorial Education and Training plan during the “13th Five-Year Plan”32 period (hereinafter referred to as the “Plan”) issued by the SPP emphasizes that the overall objective of education and training is to build a procuratorial team with firm beliefs, justice for the people, dare to take responsibility and integrity, and to provide strong ideological and political guarantees, talent guarantees, and intellectual support for the comprehensive and coordinated development of procuratorial work. These objectives are still the goals we should continue to strive to achieve during the 14th Five-Year Plan period. At the same time, we should pay more attention to the concept of system, the thinking of the rule of law, the orientation of strengthening the local organs with stressing politics, taking into account the overall situation, seeking development and focusing on self-improvement. The “Plan” requires that through five years of hard work, the procuratorial education and training work will achieve a significant improvement in the overall quality of the procuratorial team, a significant increase in the level of professional training and regularization, a more efficient and standardized training management operation and a more complete system of the procuratorial education and training. So, as to the training contents, it should explore the team training model with the case-handling group as the basic unit and organize the trainings by focusing on organizing training around the case-handling model, case-handling responsibilities, case-handling organization, case-handling process as well as supervision and management, etc. With regard to the training of procuratorial talents, the “Plan” particularly stresses the need to strengthen the training of leading talents, high-level talents, young procuratorial talents and talents in urgent need. At the same time, regarding the help and support of the western regions of China, the Plan calls for an increased counterpart support and support for education with implementation of precision assistance to enhance self-blood-making ability and focus on help and assistance to Tibet, Xinjiang, and southern Gansu by strengthening the bilingual education training and bilingual talent training.33 Then, these goals will be realized at the end of 2022.

32

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

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Actually, each five-year plan is made according to the current situation and development needs of the procuratorial work at that time.34 For example, the Procuratorial Education and Training plan during the “11th Five-Year Plan” period issued by the SPP made a plan that “the SPP will train and select 100 national procuratorial business experts, each provincial-level procuratorate will train and select about 20 provinciallevel procuratorial business experts, the municipal-level procuratorates around the country will train and select about 30 regional procuratorial business experts, and county-level procuratorates will focus on training a batch of cases experts.”35 These detailed aims have already been realized by the procuratorial organs in China.

4.3.4 Training Methods In order to achieve the overall goals and main tasks of the procuratorial education and training during the Plan period, the Plan divides the training methods of the prosecutors into four types: leadership training, qualification training (qualification trainings for primary prosecutors and prosecutors with promotion to senior ones), special business training and post skill training. In addition, it should conduct classified trainings for the prosecutors, procuratorial auxiliary personnel and judicial administrative personnel, and vigorously strengthen the post competence training, which includes main contents, such as ideological politics and the idea of rule of law, professional ethics and professional discipline, general literacy and general abilities, professional literacy and post-abilities and other general knowledge. It is particularly worth mentioning that in the 11th Five-Year Plan, the following contents were specifically stipulated: the domestic training is the mainstay, implementing a combination of domestic training and overseas training, “inviting experts to come in” and “encouraging prosecutors to go out” in order to play the supplementary role of overseas training correctly. Moreover, there were various ways combined for training, such as the centralized training and on-the-job training, doing research topics and getting practical exercises, and etc., so as to promote a personalized training, highlight the role of the main channel for training talents, discovering talents, testing talents and improving talents in practice, and give full play to the role of business departments in training professional talents.

34

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

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As to the training of talents in the local procuratorates, in order to increase the training strength, we must base on the actual situation of local work and talent team, combine the guidance and training of the superior colleges and the autonomous training of primary colleges with organizational training and the cultivation with personal practice, through business practice, post-training, business competitions and other channels, in order to focus on training and discovering a large number of local experts in handling cases and other practical talents in urgent needs.

4.3.5 Training Situations of Prosecutors in Other Jurisdictions In order to continuously improve the professional quality, professional ability and ethical standards of the prosecutors and ensure the elite of the prosecution team, all countries in the world conduct a planned and organized training for the prosecutors according to the actual needs of the prosecution work, and impart legal expertise and special work skills to the trainees. However, due to the differences in the historical traditions, judicial systems and education systems of each country, they have their own characteristics in specific training measures. Throughout the training modes of prosecutors in various countries in the world, there are mainly three modes: concentrated, decentralized and rotation. The centralized training model is divided into short-term and long-term. The long-term centralized training model is mainly applicable to the training before the prosecutor takes office. Most Civil Law countries adopt this training model. Due to the long history of the procuratorates in these countries, they also have extensive experiences in training prosecutors. “In order to ensure that the level of law enforcement of judges and prosecutors meets the needs of the development of the situation, France and Germany attach great importance to the on-the-job business training of judicial personnel. All French judges and prosecutors should receive training once a year. Before they are promoted every time, they have to pass the corresponding professional training. Once a new law is issued in France, all judges and prosecutors must learn to understand it.”36 For example, the National School of the Judiciary of France specializes in the centralized training of prosecutors. The centralized training of British prosecutors is organized by the Royal Prosecution Service, and training courses are set up according to work needs or the requirements of prosecutors, such as training in digital upskilling, whose purpose is to increase digital capability, and trainees are prosecutors across the country, including assistant prosecutors and department heads of various prosecution agencies.37 36

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.

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The decentralized training model is also a more commonly used training method, which is organized to make up for the insufficiency and inconvenience of centralized training and can meet the different needs of prosecutors in various regions for training. For example, in France, in addition to the centralized training organized by the National School of the Judiciary of France, it also adopts a decentralized training model to train prosecutors from all over the country. The rotation training method is a major feature of the training system of prosecutors in Japan. The following is a brief introduction to the prosecutors training of main countries in the two legal systems, mainly from a comparative perspective.

4.3.5.1

Training Situations of Prosecutors in the Common Law System

In movies and televisions, people often see the defense lawyers of Britain and the United States talk eloquently in the courts, and the prosecutors against them were unwilling to show weakness and equal in match. How is such an excellent prosecutor trained out? The prosecutors in the United States are often referred to as the head of the local law enforcement system. They not only are responsible for the prosecution of criminal cases, but also have direct investigation functions for corruption cases of official. They can also instruct or even direct the police’s investigation of crimes. Due to the experienced lawyers in the court and their ability to speak well, to be a prosecutor, in addition to being proficient in relevant criminal and evidence laws, he must also have good comprehensive qualities, such as negotiation skills, writing skills and level of legal documents, language skills and management skills. Therefore, the training methods of prosecutors in the USA are flexible and diverse, but there are mainly two basic forms: One is on-the-job training, and the second is short-term resignation training, which mainly focuses on on-the-job training. The contents of on-the-job training are: one is to hold lectures, and the prosecutors with strong professional skills and experiences give lectures on the application of relevant laws and litigation skills; the other is that the more senior prosecutors and assistant prosecutors watch the court trial video together and jointly discuss cases or solve some lighter cases collaboratively in order to give direct help and guidance to achieve the effect of teaching by example. Here, I’d like to take the training of newly recruited assistant prosecutors in Bronx County District Attorney’s Office of New York city as an example (hereinafter referred to as the Office). This training program was held for 54 assistant prosecutors who were newly recruited in Sep., 2014. So, the Office organized a centralized short-term legal education training program for them with two weeks.38 During the training time, every day there were lectures given by the bureau heads or deputy heads with rich practical experiences. They gave an overview of their functions, everyday work and colleagues. At the same time, they also invited the judges who had the most contact with the courts in the work, the 38

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).

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judges in the criminal courts, and the heads of criminal defense law firms. They briefly introduced their work content and characteristics so that the trainees had a comprehensive understanding of the work to be done and the people they would contact. The main courses were “Structure of the Bronx County District Attorney’s Office”, “Overview of the Criminal Justice System”, “Criminal Court Bureau Overview”, “Introduction to the Criminal Procedure Law”, “Introduction to the Criminal Procedure Law”, “Introduction of Community Speakers” and how to draft indictments, traffic crime prosecutions, alternatives to imprisonment, community solutions, etc. At the same time, the activities such as meeting witnesses and visiting court trials were also arranged. I have to say, such training program is really necessary for those assistant prosecutors to begin their work after graduating from the law school. The other is the short-term training for leaving the job, which is to concentrate the trained prosecutors in a training base, such as the Washington training base, etc., for a period of 3 to 4 weeks. A law professor or senior prosecutor teaches the theoretical knowledge of law related to prosecution work, and the methods and experience of obtaining evidence, prosecution and court debate, whose training contents are very rich. In the UK, although the Crown Prosecution Service was established late in 1986, it has rather perfect training system for prosecutors. Its training methods are centralized training and decentralized training, whose purpose is to train prosecutors to adapt to different posts. The Crown Prosecution service is responsible for the centralized training and set up the training courses according to different needs and requirements of the prosecutors. Usually, the trainees are newly employed prosecutors across the country. The decentralized training is organized by the regional prosecution services themselves, focusing on short-term concentrated learning, which lasts about a week so that the trainees can learn professional knowledge, court defense skills and the technology of computer and network by watching videos and panel discussions. However, the trainees are different, the contents of training will be different and the courses include legal professional training, management and skill training and development course training, etc.

4.3.5.2

Training Situations of Prosecutors in the Civil Law System

In the countries of Civil Law System, due to the long history of the procuratorates, they are even more experienced in training prosecutors. In France, the training institution for prosecutors is the National School of the Judiciary (the School). The prosecutors must not only receive a certain period of training in the school before taking office, but in order to continuously improve the professional level in handling various cases, they must also continue to receive continuous training after taking office, which is not only a right for a prosecutor, but also an obligation. Since in France, both prosecutors and judges are called judicial officers, and their qualifications are also interchangeable, both judges and prosecutors are trained in

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their only training school––– the National School of the Judiciary. Since the 1970s, the training time of French judicial officers in the School has been shortened, but its scale has expanded rapidly. At present, about 60% of judicial officers receive at least one training course every year. Before the 1990s, a mandatory training system was stipulated, that is, the newly graduated judicial students must receive 1 month of education and training every year for 4 years. Later, due to the extension of study time in the School, the mandatory training system was canceled. Decree No. 92–189 of February 25, 1992 stipulated that the continuing training is a right of judicial officers and he has the right to receive at least 5 days of training each year. French judicial officer training methods are divided into centralized training and decentralized training. The decentralized training is mainly to make up for the lack of centralized training to meet the needs of local judicial officers. However, whether it is centralized training or decentralized training, the training contents must consider the intention of the judicial officer, the training that has been received and the functions he/she performs. While Japan, a country that flourished only after the Second World War, because it is particularly good at learning the advantages of other countries, it is also unique in training prosecutors. In order to improve the legal expertise of prosecutors and the level of handling business, Japan attaches great importance to the on-the-job training of prosecutors. The training is mainly divided into the following three types: The first is the prosecutor research training system, which is under the special responsibility of the “Institute of Legal Affairs” affiliated to the Ministry of Justice of Japan. It sets up general research training for prosecutors, special training, economic crime training, management training, deputy prosecutor training and clerk training. Prosecutors who have served for 2–3 years participate in general training for 40 days; prosecutors who have served for 7–10 years participate in special training for 26 days. The purpose is to cultivate the work experience and professional ability required for key prosecutors. The personnel participating in the management training are the prosecutors who have worked for 12–14 years, and the time is 1 week, mainly to solve complex problems and to train the management knowledge and working ability that should be possessed by the organizing supervisor. The second is the rotation system of prosecutors, which is a characteristic of Japan’s training of prosecutors. The specific method is the prosecutor must rotate to another procuratorate at the same level after working in the procuratorate for one year, and rotate again after 3 years. The rotation starts from the district procuratorate, and after 5–7 years of rotation between the local and higher procuratorates, the best candidates are selected to serve as prosecutors in the highest procuratorate. This system helps to coordinate the unity and fairness of procuratorial work across the country. The third is to conduct international exchanges. The Ministry of Justice of Japan regularly sends prosecutors to study in the United States, Britain, France and China. In addition, the Ministry of Justice of Japan and the Ministry of Personnel also conduct short-term (generally 1–6 months) or long-term (some up to 2 years) research work every year.

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4.3.5.3

Characteristics of Training Systems of Prosecutors in Other Jurisdictions

Judging from the training of prosecutors in the above-mentioned major countries in the world, due to different national conditions, although the main institutions of training, training methods, time and contents are different, but generally speaking, these trainings have several features just as follows: (1)

The purpose of training is clear and the training is highly targeted

Whether it is pre-service training or post-service training, the purpose is to enable the prosecutors to be better qualified for their work and perform their responsibilities well, especially the continuing training and education after serving. Due to the rapid development of modern society and the rapid update of knowledge, in order to keep pace with the times and continuously improve the level and skills of handling cases, the prosecutors must constantly learn new knowledge and new methods, especially after the new laws and regulations are issued. In order to grasp the spirit and essence of the laws so that the prosecutors can accurately apply them in practice, France requires that all judicial officers must learn to understand them. Only when the law enforcers have the same understanding of the legal provisions can they further apply the law impartially. (2)

The training methods are flexible and diverse

In accordance with the training purpose of the prosecutor, in order to maximize the effectiveness of training, each country considers the most suitable training method according to its own national conditions. The centralized training has the advantages of large scale and wide range of beneficiaries, but because of the concentration of personnel, on the one hand, it may place higher requirements on the training venue and teachers; and on the other hand, it may cause problems such as backlog of work and increased costs since the prosecutors have to stay away from his organization. Some prosecutors may even worry that their positions will be replaced and do not want to leave their jobs for a long time. For example, in France, because the judicial officers are not willing to participate in a centralized training, the Organic Law issued on March 5, 2007 stipulated that it was the duty of judicial officers to receive continued training. The decentralized training has the characteristics of flexibility and pragmatism, such as making up for the shortcomings of centralized training by adapting to local conditions, setting up classes on demand flexibly, which can meet the different needs of various regions and solve local unique problems, and the most importantly, the prosecutors can take part in training and study nearby and discuss legal and social issues with other local judicial professionals. They don’t delay work and can recharge themselves in time. Therefore, at present, most countries adopt a combination of centralized and decentralized training methods to establish a training system centered on the country’s highest training institution or college, or a standardized rotation and exchange system in various domestic occupations such as between courts and procuratorates, or interactive training with corresponding foreign institutions or colleges.

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At the same time, they choose the appropriate method to train different prosecutors according to different training objects, content and time. In addition, in Japan, there is a system of rotation of prosecutors, which is particularly conducive to the improvement and comprehensive development of the prosecutor’s work level and professional quality, and also reflects the fairness of job opportunities in the procuratorial system. As to the training mentioned Above in Bronx Office, the trainees were mostly concentrated in the classroom, besides listening to the lectures on relevant knowledge involved in the future work, they watched case videos, visited the court, attended court hearings and met witnesses. When hearing the court trials, the organizer first printed out the nature, time and location of the case being heard by the court on the day and distributed it to the trainees, who could choose to listen to the case according to their own willing. Observing the court trial, it can allow trainees to have a more intuitive feeling and understanding of how the prosecutor should behave during the court trial. It is also a very important training method for the trainees to interview witnesses. In Bronx training, the witnesses in cases were played by those senior prosecutors. They showed the most difficult situation and tricky behaviors they had encountered in their careers, such as some witnesses bargaining with the prosecutor and said: “What information do I tell you, what benefit can you give me?” Or say: “I’m sorry, I really don’t remember anything. “The training teachers would try to make the trainees present in the situation physically, brainstorm and think about how to deal with it. Undoubtedly, the field drills and simulated induction training are more practical and vivid than those reading the texts, and they are more effective and more impressive. (3)

The training contents are practical and rich

Since the training of prosecutors is set up to meet the needs of prosecutors in their daily work, with the rapid development of modern society and the rapid development of science and technology, the various criminal cases have occurred, which involve more and more professional knowledge. Generally speaking, if prosecutors want to improve their ability to handle cases, they must always pay attention to learning new things, such as computer network knowledge, application of big data, newly promulgated laws, emerging crimes, etc. The prosecutors are from different departments, different posts, different positions with different training purposes, so the training contents should be rich and unique, which are not only the teaching of legal theory and the research of frontier issues of law, but also the discussion and exchange of practical experiences as well as the training of professional ethics, ideas of ethics and the learning of advanced experiences in other countries. In addition, the contents are practical. For example, in Bronx, the training courses for local prosecutors were mainly concentrated lectures, with the focus on criminal law, criminal prosecution law, and prosecution and trial issues, which are closely related to the handling of criminal cases. The teachers were not only experienced in practice, but also good at lectures. The teachers enumerated the laws frequently used in practice and analyzed their characteristics one by one, especially if the provisions of the laws were inconsistent with the case law, they explained them in detail. Combined with their years of work experience, they reminded the trainees of how to verify the

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evidence and how to effectively interview the witnesses when preparing for the cases, and told the trainees in detail how they did their daily work, what they needed to pay attention to, and which links must spend more time, and so on. At the same time, the leaders of each bureau came to the classroom to introduce the work of their bureau, including the technical bureau, the domestic violence department, the appeal bureau, etc., so that the trainees had a preliminary understanding the work of each bureau and the overall impression. In the future, they knew which bureau should go to for what kind of problem. In addition, the Office also invited some senior experts from other units related to handling criminal cases to give lectures, such as judges at the local courts and the staff of the Bar Association, whose contents were also very practical. In addition to explaining in detail how to do a good work and how to deal with different types of cases, the lecturers also told the new assistant prosecutors how to deal with all kinds of trivial matters in life according to their own personal experiences and life experiences, such as where should the trainees apply for parking and how to fill out the corresponding form in order to directly deduct the repayment from the salary for their loans during school in the future, and how to avoid contact with the media. At the same time, the trainees were also told how to get along with their colleagues. These senior prosecutors set a good example. Before the formal lecture, they always praised the work of the training supervisor and said which colleague was one of their best friends and told these new colleagues: “How great to be able to work with this person! At all times, please protect your colleagues.” Undoubtedly, from the details of these senior prosecutors’ speeches and behaviors, trainees can deeply feel the cohesion of a team and the friendly atmosphere of a big family. Perhaps this conceptual power is more important to newcomers than those specific legal knowledge. (4)

The training objects are universal

The vast majority of countries in the world attach great importance to the initial training and on-the-job training of prosecutors. Not only does each prosecutor receive a certain period of training during the initial term, but also receives on-the-job education and training from time to time after a certain period of work so that the prosecutors can update and supplement knowledge, understand the latest laws and skills and constantly improve their ability to handle cases so as to keep pace with the times. Moreover, regardless of the short-term training or long-term training, no matter what training method is used, the time is clearly fixed, but the longest is not more than two years.

4.3.6 Perfection for the Training System of Prosecutors in China Although judging from the provisions of the Plan, the training of prosecutors in China looks inspiring, exciting, colorful in content and varied in form, but this is just a gorgeous blueprint described in the “13th Five-Year Plan”, there is a long

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way to go before it can be put into practice and the blueprint becomes an effect in reality. However, this plan also shows that our government and society have realized the speciality of the prosecutor’s profession. In order to meet the needs of the development of the times, especially the SPP identified 2022 as the year of quality construction to comprehensively improve the level of procuratorial work in a new era, the prosecutors are required to constantly update and enrich new legal knowledge and constantly improve law enforcement skills and case-handling levels. It has become a consensus in society to implement a systematic, standardized and compulsory vocational training and education system. However, compared with developed countries, China’s judicial officer system is still in the formative period. The education and training system for prosecutors as part of the judicial officer system is also in the process of development and maturity. From the perspective of actual training, there are mainly problems existing in the training system of prosecutors in China, such as the training method is rigid and the content is single, the training funds are short and the training teachers are insufficient, and so on. Therefore, there are some suggestions to improve and perfect the training system of prosecutors in China, which are as follows.

4.3.6.1

Expanding the Influence of Training and Letting More Prosecutors Get Trained

It should be said that for decades, the training for prosecutor in China has been greatly improved and perfected with constant attention from leaders at all levels. However, due to the huge team of Chinese prosecutors and the heavy training tasks each year, as well as the society of China is in a period of transition, the development and changes in various aspects are extremely rapid, the various reforms are superimposed and the reform in the procuratorial system is being constantly advanced, the new laws are constantly being issued, the training work for prosecutors is becoming more and more important, such as the Civil Code of P.R.C was just issued on May 28, 2020. How to apply the Civil Code accurately to the civil procuratorial work of the procuratorial organ requires an accurate understanding and grasp of the relevant provisions. In order to allow a great deal of prosecutors engaged in civil prosecution work to learn the Civil Code deeply, thoroughly and comprehensively, it is very important to hold the trainings timely since the Civil Code has 1260 articles. Therefore, at the beginning of July, 2020, the National Prosecutors College (the College) has organized large-scale centralized training with two classes for 5 days. One was to train those teachers from all over the country, the other was due to the epidemic impact of Covid-19, the college used the method of centralized online training, so my colleagues and I could attend such training in our office, too. One class could hold more than 1000 people, which was a great advantage for the online training. In the past, a large classroom could only allow 300 people to attend the class. So, in order to expand the influence of training and let more people attend the class, in the future, even if there is no restriction on the epidemic situation of

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concentration of people, we can also take the form of online training so as to give full play to the power of the network.

4.3.6.2

Adjusting and Enriching the Teaching Contents in the Teaching Process, Exploring and Changing the Teaching Methods Timely

Although the large-scale centralized training can expand its influence and let more people have a chance to learn new knowledge, this method is most suitable for learning newly enacted laws. But this kind of training is not normal after all since the new laws are not available from time to time. The training of prosecutors is to improve their ability and skills in handling cases and to grasp the application of the law. So, the contents of the training must be highly targeted, and we should pay attention to the effectiveness. The higher the consistency of the training objects, the better the training effect. Therefore, in the training, firstly, the training for prosecutors should be classified. Prosecutors with different backgrounds and wok types should apply different training contents and methods. Secondly, the methods should be rich and changeable in different trainings. For example, the prosecutors engaged in the investigation of duty crimes should receive the training contents which are related to duty crime, such as the characteristics of duty crime committed by the judicial personnel, investigative skills and criminal psychology, etc. For prosecutors engaged in prosecution, the training contents should focus on the knowledge of criminal law, evidence law and national criminal policy, which will undoubtedly help them to improve their ability and level of work by understanding, grasping, and accurately applying these knowledge. In addition, during the training, these prosecutors can discuss some key cases in order to understand the stipulations of law and its application deeply besides listening to those lectures delivered by professors or leaders. Just as above mentioned, Japan applies different training contents and forms for different levels of prosecutors.

4.3.6.3

Cultivating a Comprehensive Team of Teachers

From the perspective of maximizing the overall quality and professional level of prosecutors, we must cultivate a comprehensive team of teachers since the level of teachers may directly affect the effectiveness of training. The comprehensive team of teachers, I have to say, will include not only those law experts who are proficient in law, but also some experienced prosecutors, besides a certain number of full-time teachers, such as law professors who work in the colleges of prosecutors across the country, there are part-time teachers by inviting some university professors who are expertise in some fields, senior civil servants, or experienced prosecutors and judges who have expertise as part-time teachers, or just temporarily inviting them to give lectures in training classes, so that the training contents can take into account both theory and practice, which not only solves the problem of insufficient training teachers, but also enables the teachers to learn something and the trainees can learn

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more, and helps to increase the training’s influence, popularity and effectiveness. For example, the present training classes of the Civil Code, the organizer of the College invited some professors from the Law School of China Renmin University, Tsinghua University, Chinese Academy of Social Sciences, two teachers from the College itself, one teacher from the Legislature organ and the leader, an experienced prosecutor, from the N0 6 Department of the SPP. These teachers gave lectures on different topics which cover all aspects involved in the Civil Code. Undoubtedly, such arrangement is very useful for prosecutors in doing civil procuratorial work and others who are eager to learn civil knowledge. In addition, due to the imbalanced economic development in China, the more developed provinces in the southeast coast are relatively adequate in training funds and have done a good work in training. In contrast, those less developed western regions are relatively scarce of training funds and training teachers. Therefore, in recent years, like the Society of Prosecutors in China, it sometimes arranges the training classes in the western regions, such as Xinjiang, Tibet and other cities, and the National Prosecutors College also hold the training classes in Tibet Branch College which is located in Linzhi city every year. Such practice undoubtedly helps to alleviate the shortage of training resources in the western regions, which has also provided the local prosecutors with the opportunity to receive necessary training timely. At present, with the rapid development of high technology and network technology, the online training can easily solve the problems of training funds and teachers. It should be said that the outbreak of Covid-19 is a good opportunity to explore and expand the methods of training prosecutors.

4.3.6.4

Establishing a Unified Judicial Training System

A unified judicial training system can be constructed as a conventional training model, such as the approach in France. At present, the education and training of judges and prosecutors in China are usually conducted independently in the court system and the procuratorial system. There are National Judges College in the Supreme Court and National Prosecutors College in the Supreme People’s Procuratorate, and at the provincial and municipal levels, there are both a judge training center responsible for the education and training of judges, and a prosecutor training branch college responsible for the education and training of prosecutors. Therefore, implementing a unified judicial officer training system can not only conserve the judicial resources of education and training, solve the problem of shortage of training funds, but also promote the mutual learning and exchange between judges and prosecutors, and reach a consensus on the understanding and application of the law. It can also reasonably match instructors and judicial officers to achieve the training objectives more effectively. For example, in order to further study and implement the spirit of the Fourth Plenary Session of the 19th Central Committee of the CPC and implement the lenient system of accepting confession and punishment, from Nov. 18 to 21, 2019, the SPP organized the training class on such system both for judges, prosecutors and lawyers at the National Prosecutors College.

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The highlight of this training class were the three-person talks of prosecution, defense and trial, namely Zhang Jun, the Attorney General of the SPP, Jiang Wei, Vice General Director of the Supreme People’s Court, and Tian Wenchang, a wellknown barrister in China.39 From the perspectives of prosecutors, judges and lawyers, three of them conducted in-depth and detailed discussion on the key issues in the application of the lenient system of accepting confession and punishment. They made a wonderful elaboration and arguments on various problems that the system will have in practice due to the application of the system. More than 600 participants of judges, prosecutors, lawyers and professors from the College who took part in this training course benefited a lot and had a deep impression. Three and a half hours of feast of thought, the door of thinking opened suddenly, the harvest was full and the aftertaste was long. From this, we can say the joint training of judicial officers is a good choice in the future. In addition, on Junuary 17, 2022, at the National (expanded) Conference of Genearl Directions, the Attorney General Zhang Jun emphasized the necessity to strenghted the joint training for judges, prosecutors and lawyers in the same room in order to enhance the conceptual concensus among the professional community. Finally, it may be possible to change the traditional prosecutor’s training idea and transform the prosecutor’s passive training into the prosecutor’s active researching. The traditional prosecutor training system emphasizes the cultivation of the overall quality of the prosecutor team. It is a vocational education with the goal of matching the ideological and political quality, professional quality and professional ethics quality of the prosecutor with the professional identity. Therefore, the prosecutor training is usually more macroscopic and overall, which tends to adopt the “one-way output” teaching model. The prosecutor researching means that the prosecutor has “based on a certain degree of business knowledge and accumulated experiences in handling cases, with combing, studying and thinking about the problems found in the process of dealing with business to achieve a quantitative to qualitative transformation”, which is a microscopic (or individual) and dynamic process that can help to make up for the inherent shortcomings of the traditional “one-way output” education model for the prosecutor training. After these years of practical exploration by the 39

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.

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procuratorial organs of Shanghai at all levels, the prosecutors researching system has achieved a leap from scratch to coarseness.40 Therefore, under the current national conditions in China, to take the above improvement measures of education and training will not only help to build a team of teachers with excellent quality, reasonable structure, combination of full-time and part-time work and distinctive characteristics, but also will strengthen the intensity of training proseutors and improve the training effects for prosecutors with effectively promoting the improvement of the cultural and professional struture and overall quality of the procuratorial team. Finally, it will help to speed up the cultivation of a high quality professional procuratorial team with firm belief in politics, proficiency in business, fine style of work and fair enforcement of law.

4.4 Prosecutor’s Professional Safeguard System The prosecutor is the master of the procuratorial organ and the subject exercising the procuratorial powers. The level of professional safeguard of the prosecutor not only reflects the judicial idea of a country, but also shows the status and dignity of the prosecutor in the whole society, which is also a direct carrier of the professional honor of the prosecutor. Whether the safeguard is in place directly affects the sufficiency and effectiveness of the exercise of procuratorial power and the realization of judicial justice. The prosecutorial systems of different countries in the world are showing colorful phenomena due to the differences in historical traditions, political systems and judicial systems. The powers granted to prosecutors by different countries vary in strength and independence, and the level of professional safeguard of prosecutors varies. However, in order to enable prosecutors to better perform their duties in accordance with the law and achieve judicial justice, the state must provide prosecutors with professional safeguard so that prosecutors can enjoy their due independence in exercising their powers without having to obey orders from others or subject to other factors. At the same time, they can live decently and have enough resistance to refuse impersonal temptations and avoid slipping into the abyss of corruption. Therefore, on September 7, 1990, Article 6 of the Guidelines on the Role of Prosecutors adopted by 40

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.

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the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders states: “Reasonable conditions of service of prosecutors, adequate remuneration and, where applicable, tenure, pension and age of retirement shall be set out by law or published rules or regulations. So, most countries in the world provide the necessary impersonal conditions and personal safeguard for prosecutors to perform their duties, although the specific treatment varies widely. Through a comparative study on the professional safeguard of the prosecutors in major countries in the world in recent years,41 to my surprise, the broadness of the powers enjoyed by prosecutors is not directly proportional to the level of safeguard they can enjoy. In other words, it is not that the greater the power of the prosecutor, the higher the various treatments he enjoys”. The prosecutor’s professional safeguard is very rich in content. From a relatively macro perspective, it can be divided into two categories: personal safeguard and impersonal safeguard.42 The personal safeguard mainly refers to the independence of the prosecutor to exercise the powers and the lifelong system of occupation. In order to ensure that prosecutors can deal with criminal cases objectively and justly, most countries like to provide the independence of prosecutors in law clearly. In addition, in order to ensure that the independence of the prosecutor can be realized in reality, many countries have also further stipulated the life-time system of prosecutors after appointment and the generous impersonal treatment for them. That is to say, if the prosecutor exercises the powers in accordance with the law, he won’t get any punishment and his prosecutor’s identity cannot be changed arbitrarily, such as the prosecutor should be appointed in accordance with the legal procedures strictly, and he should not be removed, demoted, dismissed or punished for reasons other than the legal reasons and legal procedures; while the impersonal safeguard mainly includes salary, subsidies, vacations, housing and office conditions. The following is a comparative perspective to explain the issue of professional safeguard for Chinese prosecutors at present.

41

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. 42 As to “Jiˇ anchá gu¯an de sh¯enfèn bˇaozhàng hé wùzhí bˇaozhàng”, 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 (sh¯enfèn bˇaozhàng) and impersonal safeguard (wùzhí bˇaozhàng). 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.

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4.4.1 The System Background of the Professional Safeguard of the Prosecutor Due to the complexity of the origin and development process of the procuratorial system in China, established with the Soviet Union as a template, the current procuratorial system is also quite extensive in terms of power allocation. Compared with most countries in the world, the prosecutors in China enjoy the functions and powers which are still relatively broad, and they have been constantly improving for decades. At present, a socialist procuratorial system with Chinese characteristics has been formed. Although for decades, the basic issues, such as the nature of the procuratorial power in China, the relationship between the position of the procuratorial organs and legal supervision and so on, have been controversial in the academic field,43 after years of arguments, the theoretical field in China has basically formed a consensus on “adhering to the constitutional position of the procuratorial organs.”44 Since the Constitution of China clearly stipulates: the People’s Procuratorate is the state’s legal supervision organ. Regardless of the academic circles’ definition of the nature of the procuratorial organs in China and the specific contents of the power of legal supervision, in practice, the prosecutors are undoubtedly the specific exercisers of the power of legal supervision. As one of the important contents of the legal supervision power, the procedural supervision power, that is, “the procuratorates implement the legal supervision on the investigation activities of the public security organs and the criminal trial of the people’s courts, the review of the death penalty and the execution of the death penalty”, which is a distinctive feature of the prosecution system in China. In particular, the newly revised “Criminal Procedure Law” in 2018 formally established the “lenient system of accepting confession and punishment” as a basic principle and system in the criminal procedural system. The system “not only fully reflects the development trend of modern criminal justice, and promotes the modernization of the national governance system and governance capabilities effectively, but also makes the prosecutor’s dominant position in the criminal proceedings more prominent.”45 In order to give full play to the leading role of prosecutor in the procedure of admitting confession and punishment by proposing the precise recommendations of sentence, the workload of prosecutors in handling such cases has multiplied, and whose sense of responsibility has also increased significantly.46 In corresponding to this, the level of professional safeguard of prosecutors should also be raised to a new level. Chapter 7 of “the Prosecutors Law” of China, which was revised in April 2019, specifically stipulates the issue of professional safeguard for prosecutors, which is undoubtedly the best comment on this necessity, and also 43

See Xu Jimin and Zhang Chengsi (2020, p. 28). Zhu (2018, p. 5). 45 Jia (2020, p. 1). 46 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%. 44

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shows the importance attached to this issue at the legislative level. However, there is still a long way to go from the provisions of the law to the reality.

4.4.2 Current Status of Professional Safeguard for Prosecutors in China Judging from the actual safeguard situation, there are still many rooms for improvements in the current professional safeguard system of prosecutors in China. On the one hand, in the judicial reforms in recent years, especially since the implementation of the judicial responsibility system and the reform of quota control of prosecutors system, China has paid more and more attention to the issue of professional safeguard for prosecutors. The most typical one is that after the post-system is implemented, the salary of the post prosecutor is 50% higher than that of civil servants at the same level. At the same time, the professional and elite construction of the procuratorial team is also accelerating. But on the other hand, for many years, due to various factors, the procurator’s occupational security has not received enough attention. After an empirical research, it is found that the current reality in China is:

4.4.2.1

Rather Higher Salary

It should be said that the current wages of prosecutors in China are quite good, especially after the reform of the post-system, the salaries of the prosecutors have been greatly increased, which is about 50% higher than before, and other procuratorial personnel’s salaries have also increased. Take the salary of a county-level procuratorate in the north as an example, you can see the whole situation clearly of the current salary treatment enjoyed by the local prosecutors in China47 : The salaries of procuratorial staff of the procuratorate include: duty salary, work allowance, living allowance, special professional allowance, basic performance salary, hardship and remote allowance, etc. Duty salary, the fourth level of senior prosecutors, is the highest with about 5,000 yuan(RMB) a month; from the thirdlevel prosecutor to the first-level prosecutor, the salary drops from 4,200 yuan to 3090 yuan, the lowest is a staff member, 780 yuan, but within the same level, due to different work years, there is a small difference; the work allowance is the same at the same level, from 840 to 440 yuan, the difference between the highest and the lowest is 400 yuan; the living allowance, from 1255 to 875 yuan, which is also 400 yuan of difference from the highest to the lowest; the special professional allowance, from 473 to 240 yuan, the difference is not big; and the basic performance salary is the same, all is 300 yuan; the hardship and remote allowance, belonging to the prosecutor series, is divided into two levels, respectively 280 yuan and 235 yuan. 47

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

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It can be seen that the highest salary that the senior prosecutor of fourth level in this procuratorate can get is usually 8328 yuan per month, while the salary of the third prosecutor is 5700 yuan per month, which is less than 3000 yuan of difference. Obviously, if they are all prosecutors, the difference of salary is not too big. However, there are some administrative staff, the minimum monthly salary is only 4064 yuan, which is less than half of the maximum one. I haves to say, such difference of salary, in a sense, also reflects the original intention of the reform for the quota control system of prosecutors which is to allow prosecutors who have the willingness to handle cases, strong ability to handle cases and high efficiency to deal with procuratorial work, which is conducive to improving the quality and effect of handling cases significantly, and can bring a strong sense of personal honor and mission to the prosecutors meantime. The differential treatment of salary is undoubtedly an important measure of attracting those outstanding procuratorial talents to the frontline positions of handling cases.

4.4.2.2

Rather Weaker Personal Safeguard

However, from the perspective of personal safeguard, the treatment received by the prosecutors in China is relatively weak. From a global perspective, due to the large basic population of China, the prosecutor team in China can be said to be the largest one in the world. After the prosecutors of anti-corruption transferred to the organs of supervision, there are still more than 210,000 procuratorial personnel in China, of which, more than 80,000 are post prosecutors.48 With such a huge team of prosecutors, it is not easy to imagine how difficult it is to do all aspects of logistics support. Compared with the salary increase of post prosecutors, there has been little improvement in the personal safeguard of prosecutors in these years. The personal safeguard can be further divided into the independence of prosecutors in handling cases and the professional lifelong system. In order to ensure that prosecutors can handle cases objectively and fairly, most countries clearly stipulate the independence of prosecutors in law, some of which actually enjoy relatively rather independence in practice, such as in Germany, there is almost no difference between the independence of prosecutors and the independence of trials for judge, and the prosecutors is considered to be “as independent as judges”.49 In China, the law expressly stipulates the independence of the procuratorate. For example, Article 4 of the Organic Law of the People’s Procuratorate, which was amended on October

48

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. 49 See Wan (2015, p. 003).

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26, 2018 and shall come into force on January 1, 2019, provides: The people’s procuratorate independently exercises its prosecutorial power in accordance with the law and should be interfered by the administrative organs, social groups and individuals. Of course, the independence of the procuratorate cannot be directly equated with the independence of the prosecutor in handling cases. But undeniably, after the implementation of the reform of quota control of prosecutors, the prosecutors in China can independently handle about 60% of criminal cases according to the prosecutor’s power list,50 whose independence has been greatly strengthened. However, compared with the degree of independence in most countries in the world, there is still room for continued expansion in the future. In contrast, in terms of prosecutor’s personal safeguard, there has been little improvement in reality in recent years. I say this since there are already provisions in the laws, but it is difficult to implement in practice, including judges. Therefore, some scholar emphasized, “from the most basic significance of judicial personnel’s professional safeguard, it must be fully and effectively safeguard for the judicial personnel to perform their statutory duties so that they dare to assume responsibility without favoritism and can achieve strict and fair justice.“51 The most fundamental aspect of professional safeguard is the personal safeguard. It can be said that so far, China has not established a real prosecutor’s personal safeguard system, there are only a few articles with general rules in the law. For example, the “Prosecutors Law” issued in 199552 regulates the qualifications of prosecutors, dismissal, demotion, punishment, etc. In 2007, the SPP issued the Regulations on Prosecuting the Responsibilities of Prosecutors for the Faults of Law Enforcement (Trial), which further stipulates the immunities of prosecutors.53 Undoubtedly, these provisions constitute the basic contents of the prosecutor’s personal safeguard and the legal basis of the prosecutor’s professional safeguard. However, these regulations are too simple, too general and lack specific operating procedures, in addition, there are no corresponding supporting measures. Another practical problem is that, whether it is prosecutors or common people, once they encounter unfair treatment, it is very difficult to get an effective

50

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. 51 Wang (2014, p. 003). 52 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. 53 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.

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relief in time, or don’t know how to get such relief or to complain, which is also an indisputable fact.54

4.4.3 Improvement Suggestions from a Comparative Perspective Look around the world and compare the common characteristics of prosecutors’ powers and professional safeguard in the main countries of the world, especially the various characteristics of the professional safeguard system for prosecutors in Austria, Germany and Belarus, and examine the current success or failure of the reform of the professional safeguard for prosecutors in China from the common development principles displayed by the prosecution service system in the world, I believes that it can be further strengthened in the following aspects:

4.4.3.1

Transparency of Wages and Benefits with Enhancing Expectation

Among all the elements involved in the professional safeguard of prosecutors, the salaries and benefits are undoubtedly very important. In an industry, salaries and benefits can be said to be the primary standard for most people to choose a profession. After all, this is the main source of ensuring the quality of life of ordinary practitioners. The key value of the transparency of salary and treatment is to attract talents who really like this profession and join in the prosecutorial team. For example, Article 1 of the Federal Public Service Law of Germany stipulates that the “salary” of civil servants (prosecutors) includes basic salary, family allowances, allowances and rewards, and then the grades of basic salary are stipulated in Articles 37 and 38. The Articles 39 to 41 stipulate family allowances in various situations, and Article 42 stipulates the details of allowances and rewards, which makes all clearly at a glance. In fact, the realization of the value of life, in addition to salary, also has personal preferences, expertise and professional honor, which is why those are law graduates, some like to be lawyers to make big money, and some to be prosecutors, judges who like to have more opportunities to dedicate their blood and talents to realize the fairness and justice of a case. As a Chinese saying goes: There are 36 trades, and every trade has its master. If you want to be outstanding, you need a little talent besides diligence. And the so-called talent refers to the ability to excel in certain things or fields or the natural obsession (great enthusiasm). To use this ability or obsession to 54

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.

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engage in the procuratorial work, to be honest, it is not difficult to be outstanding in daily work. As the well-known German philosopher and mathematician Leibniz said: The mind is “as a pattern of marble”.55 If a person can engage in an occupation that he likes and is gifted in this respect, he can have the opportunity to exert his initiative in the mind. The selflessness and outstanding performance in work are undoubtedly expected.

4.4.3.2

Strengthening the Safeguard of the prosecutor’s Personal with Avoiding Worries

The safeguard of the prosecutor’s personal right is an important part of the prosecutor’s professional safeguard system, just like a pocket clause. With this guarantee, the prosecutors can only handle cases in accordance with the law without any care in their daily work by eliminating the interference of various external forces, and at the same time, they needn’t have to worry about losing their jobs. Therefore, the most of countries in the world clearly stipulate in the law that the prosecutor is a lifelong occupation, and is not dismissed without legal reasons according to the legal procedure as well as the professional immunity. The Federal Civil Servants Law and Federal Disciplinary Law of Germany and other laws make quite complete provisions, including: the prosecutor’s position is life-long, which shouldn’t be removed from office or subject to other disciplines without legal reasons and due to legal procedures. Article 30 of the Federal Civil Servants Law of Germany stipulates that after becoming a civil servant, the civil servant status can be terminated only under the following four situations: dismissal, loss of civil servant position, and cancellation of civil servant status under the Federal Disciplinary Law (i.e., “expulsion from public office”) and retirement. Then, the Federal Civil Servants law further stipulated the details of each situation in Articles 31, 32, 33 and 41. In Australia, the Director of Public Prosecutions Act 1983 and the Crown Prosecutors Act 1986 of New South Wales also provide: the Director, the Associate Director and Crown Prosecutor(including the Senior Crown Prosecutor and the Deputy Senior Crown Prosecutor) are all statutory tenure positions. Once appointed by the Governor, they will be retired until the age of 72. Only when the appointed person appears insane, incapable, criminal, abandonment of office or bankruptcy, etc., may be dismissed from office.56 Another example is Belarus, where its economy is not so developed and its treasury is even less substantial, but the prosecutors in that country not only enjoy abundant impersonal conditions and a long life career, the state also provides prosecutors

55

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.

56

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with superb personal security.57 In fact, whether a country’s prosecutors enjoy rich treatment does not seem to be directly proportional to the country’s economic development level, but it is closely related to whether the government attaches importance to the construction of the prosecutorial team. Fundamentally speaking, the purpose of personal safeguard is to relieve prosecutors from worries so that they don’t have to fear the political interference and threats when handling cases, but only make decisions on whether to prosecute or not to prosecute in accordance with the law, which will help to realize the justice of individual cases and help to improve the overall judicial credibility ultimately.

4.4.3.3

Improving the Relief Procedures and Unblocking the Appeal and Complains Channels

“Litigation is the last barrier to justice.” Whether it is a prosecutor or an ordinary person, once they feel that their rights have been violated, if there is a smoother way to get help, their emotions will not accumulate and become much worse and it is unlikely that they will eventually move toward to commit crimes, otherwise the situation may be quite serious, such as, in early January of 2020, the case of Zhang Koukou of the death sentence decided by Hanzhong Intermediate People’s Court in Shaanxi Province.58 If when the fighting and killing case happened between neighbors, Zhang Koukou could get corresponding psychological counseling or the channels for complaints were unblocked at that time, and there was a reasonable explanation for him and his family, such tragedy of revenge after many years may be avoided. Another tragedy just happened a week ago59 on July7, 2020, which was the beginning day of the college entrance examination. A bus driver in Anshun city, Guizhou province drove the bus down into the lake. As a result, 21 people were killed and 15 injured, including some students who were on the way to take college entrance examinations. The reasons are as follows: the driver was assigned to a 40square-meter self-managed public house while working in the diesel engine factory. In 2016, it was included in the shantytown renovation. On June 8, 2020, the driver signed an agreement with the Housing and Urban–Rural Construction Bureau to compensate more than 70,000 yuan. But the driver didn’t get it, he regretted it. The driver applied for a set of public rental housing, but failed to get approval. His Hukou (Chinese identity account) was posted with his sister’s family. On the morning at about 8:30 of July7, 2020, the driver came to the house and found that the house had been demolished. Then, the driver called the government service hotline and 57

For details of the professional safeguard of prosecutors in Belarus, please see Ji Meijun and Saciko Paul (2012, pp. 153 ~ 154). 58 For the specific details of this case, please refer to Liu (2018, p. 56). 59 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.

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expressed dissatisfaction with the application for public rental housing which was not approved and the self-managed public housing was demolished. At 9:04, the driver bought liquor and drinks and put the liquor in a beverage bottle. After handing over the shift in advance at 10:55, he drove the bus from the east passenger station to the terminal of the railway station and all passengers got off at 11:37. At 11:39, the driver contacted his girlfriend to express his weariness by WeChat. At 11:47, he drove the bus away from the East Railway Station. At 12:09, when the passenger got on and off the car, he drank the white wine in the beverage bottle. At 12:12, he decreased the speed of the bus, suddenly turned to accelerate, crossed 5 lanes, crashed the guardrail and rushed into the lake. I described what had happened to the driver and what he did in the last several hours of his life in detail so that people can see what may learn from such tragedy. What we need to reflect on and be alert to is that the protection of a person’s “home” and the protection of legal private property and personal freedom are the basic ethics of a society. Who in our society is constantly creating all kinds of conflicts which are unnecessary for the country because of selfishness or insensitivity? Who is constantly causing all kinds of evil? Who doesn’t care about the consequences? Why did the driver become an anti-society person? If his house had not been demolished, if the public rental housing he applied for had been approved or if he had been comforted well by his complaint phone, then such serious tragedy might be avoided. So, we can see the importance of relief from the occurrence of these two tragedies. In fact, the relief procedure is a strong backing for professional safeguard. No matter how perfect the provisions are, the problems will always occur in the actual implementation. When the problems arise, if the remedies can be obtained in time, then the provisions will take a root in reality. Otherwise, the so-called treatment and personal safeguard will become the moon in the water, which looks beautiful. While the breeze blows and a pool of water waves will merge, nothing will happen. Undoubtedly, the professional safeguard system of prosecutors is an important part of deepening the reform of mechanism of procuratorial work comprehensive in China. It is of great significance to ensure that the prosecutors independently exercise their powers, exclude interference from various external factors and achieve judicial justice. Of course, each country makes the corresponding provisions on the prosecutor’s professional safeguard system according to their national conditions, there are super-strong types, such as Belarus, etc., in addition to lifelong job security, it is also equipped with perfect personal safety protection measures; there are also common ones, such as Germany, Australia. What kind of safeguard model should be adopted is not only closely related to the economic force of a country, but also inseparable from whether the government of the country pays importance to the procuratorial work. In fact, in terms of welfare treatment, in view of the arduousness, complexity, professionalism and importance of the procuratorial work, most countries attach great importance to it and provide the prosecutors with relatively rich impersonal conditions and corresponding welfare treatment. China is no exception. “Over the past 40 years, the procuratorial team has been working hard and growing in the tide of reform and opening up. It has always been accompanied by the same development

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of the procuratorial cause and walked in the same direction, providing strong organizational safeguard and talent support for the people’s procuratorial cause.“60 From a historical perspective, with the continuous deepening of procuratorial reform in China and the further strengthening of the national force, as a part of the social elite and also shouldering the important task of achieving the judicial justice, the prosecutors should enjoy more generous impersonal treatment and more comprehensive and powerful personal safeguard. Perhaps we can expect that tomorrow will always be better, just like the salary of the post prosecutor.

References Bian Jianlin (ed.) (2006) Organic law of the people’s procuratorate of the People’s Republic of China. China Prosecutorial Press Wang Guanghui (2019) Procuratorate team growing with reform and opening up. Procuratorial Daily, January 14 He Jiahong (ed.) (2005) Criminal judicial trends-from the perspective of EU criminal justice integration. China Procuratorial Press He Weifang (2001) Who are not the family members don’t enter a door -------the meaning of the unified judicial examination. Legal Daily. July 9 Jia Yu (2020) The lenient system of accepting confession and punishment and the leading position of prosecutors in the criminal proceedings. Law Review (3) Jiang Hong (2019) Prosecutors should not only be “artisans” but also “polymaths”. Procuratorial Daily. April 10 Ji Meijun (2010) Study and analysis on the selection and appointment system for prosecutors. Justice of China (3) Ji Meijun, Saciko Paul (CawekoPavel) (2012) Development of the procuratorial system in belarus. Journal of National Prosecutors College (6) Ji Meijun (2015) Training and enlightenment of local prosecutors in the united states. People’s Procuratorial Semimonthly (17) Ji Meijun (2013) Comparative study on the system of prosecution service between China and Australia. Peking University Press Ji Meijun, Saciko Paul (2015) Belarus gives the prosecutors a broad powers and safeguards. Procuratorate Daily. February 3 Ji Meijun (2015) An empirical research on the generation of prosecutors of the district prosecution service in the united states and professional safeguard. The Chinese Procurators (19) Ji Meijun, Li Xin (2017) On the powers and professional safeguard of australian prosecutors. Journal of Comparative Law (1) Li Tianhui (2017) The activity of mind and the relationship of mind and body——Leibniz’s philosophy of mind. The Northern Forum (3) Liu Yousheng (2008) Study on the quality and professional training of judicial officers. People’s Procuratorial Semimonthly (12) Liu Xing (2018) A reflection on the Zhang Koukou case. Tianfeng (4) Tong Jianming, Xiong Shaomin, Zhang Wei (2004) Main features of management for procuratorial personnel in Japan. People’s Procuratorial Monthly (2) Wan Yi (2015) German prosecutors are “as independent as judges”. Procuratorial Daily. June 23 Wei Wu (2008) French–German procuratorial system. China Procuratorial Press

60

Wang (2019, p. 003).

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Wang Guiwu (ed) (1991) Research on the procuratorial system of the People’s Republic of China. Law Press Wang Minyuan (2014) Strengthening the construction of the system for procurator’s professional safeguard. Procuratorial Daily. December 30 Xu Jimin, Zhang Chengsi (2020) Logic reconstruction of legal supervision and prosecutorial power from the perspective of constitutionalism. Journal of Sichuan Normal University (Social Science Edition vol 2) Xu Yingyan (2011) Let the mechanism be more scientific, let the competition be more fair and let the process be more transparent------the record of the work of the spp in deepening the reform of the cadre and personnel system and promoting the competitive selection and appointment of cadres. Procuratorial Daily. January 5 Zhu Xiaoqing (2018) Consolidation and development of the procuratorial system after the reform of the national supervision system. Chinese Journal of Law (4)

Chapter 5

The Reform of Procuratorial System

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 vitality to the judicial system, and the two goals of judicial reform must be realized in each jurisdiction. Judicial justice embodies the fairness and justice of the spirit of law, while judicial efficiency refers to minimizing litigation costs as much as possible, improving litigation efficiency and realizing the unity of legal and social effect. In order to achieve these two goals in the process of judicial reform, each country has done its best to improve the judicial system within the scope of national conditions. The procuratorial system, which is the link between the investigation and trial within criminal proceedings, plays an important role in the realization of judicial justice and efficiency. It is an important part of the judicial reform, especially the socialist procuratorial system with extensive functions and characteristics in China. So, under the background of globalization of judicial reform, in this chapter, I would like to discuss the tendencies toward reform and the main trends of the prosecution service systems of major countries of the world in recent years, combining with my thinking and research on the historical development and reform practices of the procuratorial system in China. From world legal practice, I will provide some valuable experiences and enlightenments for the further reform and improvement to China’s current procuratorial system. This will allow foreign readers to well understand the procuratorial reforms China has carried out to the present and what it aims for in the future.

5.1 The Reform of Prosecutorial Systems in Other Countries So far, the prosecutorial system is still not as mature as the trial system. It can be said that the trial systems of countries all over the world are similar, but the prosecutorial systems are diverse, especially the powers of prosecutors are very varied in different © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 M. Ji, Brief Introduction to the Procuratorial System in China, Understanding China, https://doi.org/10.1007/978-981-16-8611-5_5

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countries. The differences in different countries within the same legal system are almost as big as those between the two legal systems. However, the prosecutorial reform in recent decades shows that the development of the world prosecutorial system presents two major trends: first, the power of prosecutors is increasing more and more greatly; second, the prosecutorial accountability system is becoming more and more perfectly.1

5.1.1 Background All things are in the process of development and change, as illustrated in the book of Changes of the Zhou Dynasty in ancient China, “The image is formed in heaven, the shape is formed on the earth, and the changes can be seen.” With the everchanging social factors, there remains a need for reform. However, it is impossible for a country’s judicial system to exist in isolation from its own economic and cultural reality or to be completely separate from its own historical tradition. These factors, like an invisible hand, regulate the direction and process of judicial reform, regardless of whether people are aware of it or feel it unconsciously.2 From the 1970s, the United States and Germany began the prosecutorial reform; in the mid-1980s, Britain and Australia carried out the criminal justice reform by separating prosecution from investigation and then established the prosecution service with public prosecution as its basic function; Japan and Russia also launched a comprehensive judicial reform movement in the 1990s. In addition, the process of EU harmonization has been accelerating, and it has penetrated into politics, military, culture, law and broadening from the economic field. In order to promote the formation of the legal system of the European Community, the judicial reform of European countries is in full swing. As the Italian jurist Mauro Cappelletti pointed out, “up to now, for many countries, there are still remnants of the old litigation procedure, and the direct verbal principle and litigation efficiency of the procedure are still to be solved. At the same time, there are three trends in European Legal Reform: constitutionalization, internationalization and socialization.”3 Therefore, it can be said that reform has become the main theme of the times, which undoubtedly conforms to the laws and needs of social development. From the perspective of the global procuratorial reform, there are some similarities in the pursuit of value and specific measures in different countries. At the same time, due to the differences in backgrounds and national conditions, these vary by degree.

1

Stenning et al. (2019, p. 15). See Jin and Wan (2008, p. 493). 3 Li (2017, pp. 124–132). 2

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5.1.2 The Expansion of Prosecutorial Power The prosecutorial reform is an important part of judicial reform; the functions of prosecutorial organs are mainly related to criminal proceedings. The prosecutorial reform in other countries may be found in the issues of the criminal procedure reform. Although from the origin, the criminal procedure in modern Western countries can be divided into two models: the Civil Law System and the Common Law system. However, in recent decades, the reform of criminal procedure in other countries of the two legal systems has appeared as a trend toward mutual adopting and integration in value selection, such as pursuing the unity of crime control and human rights protection, paying attention to the balance between the protection of victims and the protection of the rights of defendants, and the balance of the relationship between prosecution and defense and the proper role of judges as well as the realization of equal emphasis on justice and efficiency.4 In order to improve judicial efficiency and the function of handling cases, each country has also taken corresponding measures in their prosecutorial reforms. For example, in order to improve the protection of human rights of criminal suspects, the United States, Canada, Japan and the EU countries have strengthened the standardization and informatization construction of the prosecutorial work, and some countries have established synchronous audio and video recording systems for the interrogation of criminal suspects. In order to prosecute crimes and protect social public interests, France, Germany and the United States have given the prosecutorial organs the litigation power in civil and administrative litigation and supervision and inspection responsibilities in other aspects of society. For example, Germany once stipulated that the federal prosecutors, as representatives for publice interest, reprented and safeguarded the social public interest in the administrative proceedings.5 Alternatively, many countries have given the prosecutorial service investigative power for duty crimes, to protect the independence of prosecutors from interference and allowing them to impartially enforce the law. The prosecutorial service in Germany, France, Italy and Russia, which not only enjoy the power of investigation for duty crimes, but also stipulate that the prosecutors have the power to direct the police investigation. Italian procuratorial service can even use the power of the police and at the same time adopt the centralized vertical leadership system in internal organization so that the investigation of duty crimes can reflect the characteristics of a direct, fair and fast investigation in order to ensure the fairness and efficiency of the investigation.6 In addition, in order to better realize judicial justice and establish judicial authority, many countries have established and improved a number of systems to supervise the exercise of prosecutors’ powers, for example, the amendment of the Law of the Procuratorial Review Council in Japan, and the improvement of the grand jury system in the United States. From a global perspective, both Civil Law countries 4

See Song (2010, p. 5). See Ji (2020, p. 007). 6 See Xiong (2017, pp. 43–44). 5

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and Common Law countries have given and expanded the discretion of prosecutors to advocate the diversification of criminal case solutions, such as restorative justice, criminal reconciliation and simplified trial procedure in European countries, the plea bargaining system in the United States, and the charge negotiation system in Australia. In this wide application of these reform measures, the prosecutors have the decisions of power for jurisdiction in some criminal cases, and the prosecutorial power has been expanded. In criminal procedures, the expansion of the prosecution service’s authority is mainly manifested in the expansion of the prosecutor’s discretion. The discretion of prosecutors refers to the power of prosecutors to make the decision whether to prosecute or not to prosecute, to prosecute with conditions or to withdraw the prosecution on examination of criminal evidence. The main purpose is to ensure justice of a case, save litigation costs and improve litigation efficiency.7 Prosecutors are empowered with certain discretion so that they can use their own judgment to deal with cases according to the specific circumstances and special aspects of the case. This kind of practice is very necessary in the new century when the voice of safeguarding the rights of the accused is rising, the humanitarianism of punishment is emphasized and the criminals are impelled to return to society as soon as possible. At the same time, in the face of the accumulation of criminal cases and the shortage of judicial resources, it can only become the ideal like the moon reflected in water or a flower seen in mirror that all cases are tried through the strict application of due process. The traditional principle of compulsory prosecution is gradually replaced by the principle of discretionary prosecution because it cannot meet the needs of social reality. It is natural for reform to adopt different procedures to deal with cases of different types and severity. In the decades of reform of criminal procedure, both the criminal reconciliation procedure in Civil Law jurisdictions and plea bargaining procedure in Common Law jurisdictions have made cases efficiently handled or simplified in the case of reviewing prosecution. In these procedures, the discretion of prosecutors is expanded, as such power plays an important role in judicial efficiency. Germany, in recent years, has expanded the scope of non-prosecution cases by stipulating that negotiation, punishment order system and confession negotiation in minor crimes can be discretionary. Moreover, the strict principle of compulsory prosecution has allowed more exceptions reviewing the severity of the criminal acts. In practice, the mandatory prosecution has been greatly reduced,8 under the guidance of procuratorial reform, whose goals are to improve the efficiency of litigation and make the judicial process more just. France has also stipulated two restorative judicial methods: criminal reconciliation and criminal mediation. On March 9, 2004, the Law on Adapting Justice to the Development of Crime stipulated that the criminal reconciliation procedure should be extended to all minor crimes that may be sentenced to less than five years 7

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. 8 See Boyne (2014, pp. 91–92).

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and all crimes of police violation. Here, the scope of non-prosecution made by the prosecutor’s decision has been broadened. In addition, prosecutors in the Netherlands, a Civil Law jurisdiction, also enjoy extensive discretion of prosecution. According to the specific situation of the case and the public interest, the prosecutor can decide to cancel a case, handle a case out of the court or prosecute a case. If the prosecutor decides that the evidence is insufficient, or in the consideration of criminal policy, such a criminal act is minor and the accused has compensated the victim’s loss, the case can be revoked. In minor cases handled out of court, the prosecutor may directly impose a fine on the accused, and if the accused accepts, the case is no longer prosecuted. It can be seen that the discretion of Dutch prosecutors in prosecution is rather extensive. Besides deciding not to prosecute a case, they can also deal with the case substantively by imposing a fine. If the accused do not accept the fine, the case will be prosecuted in court without any room for bargaining, which is different from “plea bargaining” in the United States. By contrast, the prosecutors in the United States enjoy the most extensive discretion in the world, even though in the United States, where case law is applied, there is no legal provision for the principle of discretionary prosecution. However, within the plea bargaining procedure, the prosecutor can decide not only who of the suspects to be prosecuted, but also decide which kinds of criminal crimes should be prosecuted. They also have the power of altering prosecution, withdrawal of prosecution and refusal to prosecute. The prosecutor cannot only discuss charges with defendants and defense lawyers, but also discuss the sentence with them. However, in Australia’s charge negotiation, the Crown Prosecutor can only negotiate the charges, not the specific sentencing range. But, the prosecutor has the power to decide whether to start the charge negotiation or not, and can also agree not to charge a certain crime, or decide to only charge the crime when the accused agreed to plead guilty. In the United Kingdom, the main function of its prosecution service is to initiate public prosecution. In recent years, in order to realize the modernization of justice, reduce crimes, and ensure justice and ultimately establish a safer society, the goal of prosecutorial reform, starting with the establishment of the Crown Prosecution Service in 1986. Its commitment is to realize “the search for a criminal justice process that is manifestly fair to defendants, but which also ensures the fair treatment of victims and witnesses, and which serves the wider community inspiring public confidence by securing justice,”9 In the meantime, the 2.7 of the Code for Crown Prosecutors stipulates that “when making decisions, prosecutors must be fair and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity of the suspect, defendant, victim or any witness influence their decisions. Neither must they be motivated by political considerations. Prosecutors must always act in the

9

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.

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interests of justice and not solely for the purpose of obtaining a conviction.”10 As a prosecutor, one of his or her important responsibilities is to follow the principles of fairness and justice. “The prosecutor has a heavy responsibility, the responsibility to hold the balance between the public, the victim and the suspect in a fair and just way. The prosecutor is a Minister of Justice. His decisions will have a major impact on the confidence which the public has in the justice system.” In other words, “Independence is a state of mind. It is nurtured by a culture of independence within the organization, and a history of acting independently. It can be reinforced by training, and it is of course assisted by publicly stated policies and transparent decision-making processes.”11 In the UK, in addition to the Crown Prosecution Service, there are other agencies that also have prosecution powers, such as the Serious Fraud Office, Her Majesty’s Customs and Excise, the Department of Trade and Industry, and the Health and Safety Executive. Of course, they only prosecute crimes related to their jurisdiction, but this situation of sharing prosecution powers affects the efficiency of prosecution, requiring further coordination to achieve prosecutorial reform. On May 9, 2007, the British government reorganized the Ministry of the Interior and established two independent departments: the Ministry of the Interior and the Ministry of Justice. Since then, the criminal justice system in Britain has been composed of the Home Office, the Ministry of Justice and the Attorney General’s Office at the central level so as to achieve the three goals of “preventing and investigating more crimes, supporting more victims and witnesses, and punishing and saving more criminals,” the three departments are jointly responsible and cooperate to promote and reform the British criminal justice system.12 In addition to the expansion of discretion, the power of investigation of prosecutors in some countries has been expanded. Among them, the most striking example is the system of pretrial judges in Civil Law jurisdictions. In 1974, Germany has abolished the system of pretrial judges in their criminal justice reform and established the position of prosecutors to lead and direct the police investigation. However, in France with the establishment of the pretrial judge system in the “Pretrial Code of Felony” in 1808, it has been a major feature in judicial system in France. In January 2009, French President Nicolas Sarközy proposed to abolish the system, and the judicial committee issued the relevant reform report in September of the same year. The 10

See the Code for Crown Prosecutors, published on October 26, 2018, https://www.cps.gov.uk. 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. 12 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. 11

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existence or abolition of such system once again aroused a strong opposition in both the French judicial community and the whole of French society. Since the pretrial judge plays the dual role of investigator and judge in French criminal justice system, it plays an important role in the whole judicial system. The abolition of the system undoubtedly means that the complete separation of investigation power and judicial power has become a trend in the development of judicial power. In order to improve the successful rate of accusations, other countries have endowed prosecutors with the power to direct the police investigation in order to integrate the prosecution and investigation for combating organized and transnational crimes more effectively, which has gradually become a major development trend in the past few years. For example, the procuratorial service in the Netherlands has the power of investigation and supervision of criminal matters, and the system of “integration of prosecution and investigation” is implemented. The investigation activities should be carried out under the instructions of prosecutors and they are ultimately responsible for them, so as to ensure that the police abide by the substantive and procedural provisions of the law. At the same time, according to the needs of handling cases, the prosecutors can also authorize the police to use certain investigative measures, such as arresting suspects who have not been caught at the scene. In addition, some countries even allocate the investigation power of duty crime to the prosecutorial services, giving them the power of compulsory collection of evidence, technical investigation and secret investigation, such as in Sweden, Romania and Japan. In China, in recent years, both the theoretical and practical circles advocate that the procuratorial services should guide the investigation. However, the integration of procuratorial work requires that the lower levels follow the orders from upper ones, with the linkage between the left and the right, which has a strong administrative color; this stands in opposition to the independence of prosecutors, which requires the exclusion of all external interference and checking. There are serious conflicts between the two in essence.13 Therefore, how to deal with the relationship and balance between the two and overcome the abuse of power and defects brought about by the independence of prosecutors is also a big problem in the process of prosecutorial reform.

5.1.3 Limitation and Weakening of the Prosecutorial Power In recent decades, the expansion of prosecutorial power has become the main trend in the judicial reform in most countries in the world, and the diversification of prosecutorial functions is an inevitable trend of the development of prosecutorial system. However, in order to promote judicial justice to the maximum extent, some functions and powers of the prosecutorial services have been restricted or weakened.

13

See Chen (2006, p. 5).

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Historically, in the process of investigation, the prosecutorial organ has the power to approve or decide to adopt compulsory measures. In recent years, some countries have transferred this power to judges, who exercise the power to issue writs, such as in Germany and France. In addition, Taiwan has also restricted the power of prosecutors to a certain extent of its reforms. For example, according to the provisions of the amendment to the “Safeguard and Supervision Law of Communication” promulgated on July 11, 2007, the power of the prosecutor to approve and issue the communication letter of supervision should be changed to the prosecutor’s application and the judge’s approval; if being rejected by the court, no objection can be declared. This is undoubtedly a weakening of the prosecutor’s power to deal with compulsory measures. In Russia, the new Russian Criminal Procedure Law establishes the principle of judicial review and modifies the functions and powers of the procuratorial services. It stipulates that the court shall decide whether to search a house or to remove articles, or to restrict the citizens’ communication or to monitor the telephone calls. At the same time, the procuratorial organ’s criminal trial supervision function has been cancelled, and some restrictions have been imposed on its supervision scope, although this has not changed the legal supervision status of Russian procuratorial organs.14 The main trend of development has been to give prosecutors certain discretion to ensure the correct exercise of the prosecutor’s power of making decision of prosecution and prevent the prosecutors from abusing their powers. Other countries in the world have designed the corresponding supervision and restriction measures, such as the pretrial procedure in Britain, the grand jury system in the United States and the compulsory prosecution procedure in Germany and Japan,15 which is naturally a weakening of the prosecutor’s power. However, in order to avoid unnecessary waste of human and financial resources brought about by wrong and inappropriate prosecution decisions of the parties and the state, some weakening of restriction is necessary. Procuratorial reform is one of the core contents of judicial reform. Each country has set different reform goals, adopted diversified value choices and has had their own focus in specific reforms necessary for their own national conditions, criminal status and social needs. The development of the prosecutorial system can be described as diverse, but will eventually lead to the same outcome. For example, the prosecutorial system in the United States has experienced the development process of transition from private prosecution to public prosecution, from centralized prosecution to decentralized prosecution, from prosecutor appointment system to an election system, and the power of prosecutors has changed from limited to almost unlimited.16 Finally, because of the unlimited discretion of prosecutors in plea bargaining procedure and the continuous expansion of the prosecutorial authority to combat terrorism, 14

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. 15 For details, see Ji (2003, pp. 107–113). 16 See Worrall (2008, pp. 5–9).

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it has attracted extensive criticism from the American people. However, under the threat of terrorism, the federal, state and local prosecutors in the United States must be reorganized in terms of decentralization and the execution of various functions. It is imperative to expand the powers of the federal prosecutorial service. In order to maintain the security of local neighborhoods, the local prosecutorial service also needs to be strengthened, and the state prosecutors do not want to remain idle. In the face of various challenges to the prosecutorial services, some scholars in the United States believe that the future reform of the prosecutorial function should achieve two goals: the first is to eliminate the arbitrary acts of the prosecutor’s discretion; the other is to establish a prosecutorial accountability system.17 In contrast, the prosecution services in Australian, which have only been established for more than 30 years, are not facing challenges like those in the United States. There has been little change in all aspects over the years. However, they also have their own inefficiencies. For example, the trend has been for government to allocate less money with which to operate, which places increased demands on staff. In prosecuting cases of new areas, they must have more sophisticated professional knowledge, to face the pressure placed on them. In addition, judging from the cases handled by the Commonwealth Director of Public Prosecutions of Australia, they are faced with the following problems: more and more cases are involved, the caseload of complex matters continues to expand and evolve. It includes: criminal cartels, foreign bribery, online child exploitation, sophisticated revenue and benefits fraud, complex tax fraud, fraud by company directors, breaches of directors’ duties, large-scale and cross-border organized crime activity including drug offenses, human trafficking, slavery and terrorism offenses. In practice, when prosecuting cases in these key areas, the work is quite complicated. In many cases, it also involves very profound legal knowledge and the need to find quick solutions to practical problems. Many crimes are international, which requires to go abroad for investigation and evidence collection in order to successfully prosecute them, sometimes they have to invite foreign witnesses to testify in court.18 In fact, no matter what the reform measures the prosecutorial services of various countries take, their ultimate goal is still inseparable from the core themes of justice and efficiency.

5.2 The Reform of Procuratorial System in China The procuratorial organ is an important part of the judicial system. From the beginning of its establishment to the current state, it has been found suitable for China’s economic and social development. However, there are some problems in the operation of procuratorial power, especially after the reform of the supervision system and the reform of the judicial accountability system. So, in recent years, there are 17

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/.

18

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various reforms have taken place in the procuratorial system in China. However, all these reforms have to follow the guiding ideology.

5.2.1 Guiding Ideology and Practical Significance of Procuratorial Reform The guiding ideology of procuratorial reform is the fundamental issue to be solved in the procuratorial reform, which is a key factor to determine the direction and path of the reform. Only under the guidance of correct ideology can the reform achieve the expected results and promote the realization of judicial justice and the improvement of efficiency. The practical significance of the reform is that the specific reform measures taken can help to better achieve judicial justice and improve judicial efficiency with the ultimate goal that the people can feel fairness and justice in every judicial case.

5.2.1.1

The Guiding Ideology of the Reform

At the beginning of the founding of the People’s Republic of China, the general supervision principle was inherited from the Soviet Union and combined with the specific conditions unique to China. A procuratorial system was identified and established and then has been developed for China’s requirements. In the course of the decades of development, the procuratorial system in China has experienced “three ups and three downs of devastating disasters and setbacks,” but history has proved that the choice of a procuratorial system is correct. The people’s congress developed a prosecutorial system that achieved the following advantages: firstly, the procuratorial system in China has a unique nature in the national constitutional system; the legal positioning of the procuratorial organ stipulated in the Constitution conforms to the current trend of the construction and development of China’s socialist legal system and also conforms to the direction of the reform and development of China’s judicial system; secondly, the constitutional basis of the procuratorial system in China is the people’s congress system, which is widely popular. The procuratorial power in China comes from the people and serves the people. This concept of people’s sovereignty has become an important part of the constitutional system of a modern country with rule of law; thirdly, the procuratorial system in China embodies the essential attribute of legal supervision which has judicial justice. The legal supervision system of procuratorial organs in China has its own distinctive characteristics, and its supervision is national, specialized, statutory, compulsory and extensive.

5.2.1.2

Practical Significance of the Reform

The emergence and development of any system cannot be chosen at will by those who are in power. It must take into account the political and economic system,

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social and cultural background, public affordability, practical operating conditions and the development trend of the judicial reform in other countries in the world. Although the procuratorial system in China is established under the political and economic system of a socialist country, which has with it, a historical inevitability rationality and superiority. The development of China’s legal reform has allowed the continuous evolving of political reform, and the continuous completion of economic reform, the procuratorial organs of the 40th anniversary of the restoration and reconstruction needed to meet new challenges of new social development. In such an era, the main social contradictions of the socialist country with Chinese characteristics have been transformed into the contradiction between the people’s growing need to fulfill their lives and the progress of development. The transformation of this major contradiction means that the people’s demands for democracy, rule of law, fairness, justice, security and environmental protections are growing as a consequence of the people’s material and cultural life satisfaction. The impact and requirements of this on the procuratorial organs are all-round, both in terms of ideology and in the way of work. The procuratorial organs must change the judicial and procuratorial concepts and reform the operation mechanism of procuratorial power in order to adapt to the higher requirements of the people for fairness and justice in a new era and to give full play to the supervision function of the procuratorial services and provide more and better procuratorial security for the people. In addition, from the perspective of scientific construction of the system and the ultimate value goal of fairness and efficiency, the problems of operation existing in the procuratorial system of China are mainly reflected in the following aspects: the allocation of procuratorial power is not reasonable, the leadership system is not straight forward, the management of human and property resources is subject to the local authorities, the decisions of internal management administration is serious and the quality of prosecutors is variable. Therefore, since the 1980s, the reform has always been a goal to development of procuratorial work in China. The functions of the procuratorial organs have been substantially adjusted from the established dictatorship. Through the amendment of the Criminal Law and the Criminal Procedure Law of China, the supervisory function in criminal proceedings has been strengthened and the mode of exercise has also been adjusted. Since 1998, the procuratorial reform has entered a critical stage. With the knowledge that judicial reform has become the main theme of the times, the procuratorial organs have begun to consider and explore the management system and work mechanism in line with the characteristics of the procuratorial work and put forward the development idea of “strengthening legal supervision and maintaining fairness and justice.” Especially since 2018, after the power of investigating duty crimes of the procuratorial organs has been transferred to the newly established supervision committee, people from all walks of life have paid great attention to the procuratorial reforms. Scholars are concerned about the legal status and system construction of the procuratorial system, while the prosecutors are more concerned about the development of the procuratorial cause and the effective allocation of the procuratorial powers, and what the common people are concerned about is how to ensure and realize judicial justice and curb judicial corruption. How

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to respond to these demands through the procuratorial reform is undoubtedly an important issue faced by all prosecutors in a new ear. As an important part of the reform of judicial system, how to grasp a correct direction, clarify the key points of reform, break through the difficulties of reform and achieve the actual results of reform in accordance with the deployment of the central government on promoting the reform of judicial system, the reform of procuratorial system is not only related to whether the socialist procuratorial system with Chinese characteristics can be improved; at the same time, it also involves whether the socialist judicial system can play a better role in ensuring the realization of fairness and justice of the whole society and building a socialist harmonious society.

5.2.2 The Principles and Goals of Reform From the historical background and development path of the procuratorial system, there is a natural relationship between the procuratorial system and the political system of a country. The principle of procuratorial reform refers to the basic path that should be followed while deploying the procuratorial reform under the country’s political and constitutional system. The goal is the destination through such a path. While choosing the basic path, what factors must be considered to help achieve the goal? And the goal can be divided into the final goal and more specific smaller goals. The realization of each smaller goal will achieve the final goal by integrating them together. The ultimate goal of procuratorial reform is naturally to achieve justice and efficiency at the same time. The specific objectives will be diverse, such as improving the professional quality of prosecutors, stimulating the initiative of prosecutors and the effective use of procuratorial resources. Therefore, the choice of the path should consider these various factors. In the choice, we should not only follow the macroprinciples, but also consider the specific principles that directly guide the reform program. The following is a detailed description of the specific principles and goals of the reform.

5.2.2.1

The Principles of Reform

As to the principles of procuratorial reform, under the current constitutional system of China, on the macro-level, when deepening the procuratorial reform, we must adhere to the party’s leadership over the procuratorial reform, adhere to the constitutional status of the people’s procuratorate, adhere to the mass line and adhere to the principle of promoting according to law on the basis of the national condition. Because the procuratorial power is the key content of procuratorial system, the operation of the procuratorial power must follow several basic principles, such as the rule of law, the principle of justice, the principle of independence in accordance with the law, the principle of integration of procuratorial power, the principle of openness as well as the principle of rationality. Therefore, the direction of procuratorial reform should also

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be conducive to the realization and implementation of these principles in practice. Therefore, I believe the current procuratorial reform should first follow the following specific principles: (1)

Taking the Full Exercise of Procuratorial Power as the Core

The procuratorial power refers to the general term of various powers enjoyed by the procuratorial organs or prosecutors. It is an important part of state power and the key content of the procuratorial system. The effective exercise of procuratorial power plays a very important role in the construction of the rule of law and the fight against corruption. However, what kind of functions and powers the procuratorial organs should enjoy, how to set the division of labor, whether to adopt the centralized leadership system or the decentralized leadership system, and how much discretion should the prosecutors enjoy are all important issues. How to solve these fundamental problems reasonably is closely related to the political and judicial system of a country. First of all, it must be conducive to the construction of the procuratorial power. The first standard is to make full play of the role of the procuratorial power in building a harmonious society and maintaining social equality and justice. Nowadays, the procuratorial systems of other countries of the world have their own characteristics and differences which are related to their historical and cultural traditions and judicial systems. The characteristics of China’s procuratorial system are as follows: In nature, the people’s Procuratorate is not only the judicial organ of the state, but also the legal supervision organ of the state; in the management system, the implementation mode is the “double leadership and one supervision”; in the way of exercising the procuratorial power, the people’s procuratorate exercises the procuratorial power independently in accordance with the law; in terms of internal leadership, a leadership system combines unified and collective leadership. Although these characteristics are unique to the procuratorial system in China, not all of them are advantageous. At present, the allocation of procuratorial power in China is both rational and scientific. But it is undeniable that there are many problems in operation and practice. The reasons are various, such as imperfect legislation and nonstandard factors in law enforcement. At the same time, the understanding of the legal supervisory function of the procuratorial organs is neither clear enough nor comprehensive enough. According to the provisions of the Constitution and relevant laws of China, the procuratorial organs mainly enjoy the following functions and powers: the power of investigation in 14 kinds of crimes19 committed by judicial staff, the power of approving or deciding arrest, public prosecution, procedural supervision (including supervision of filing criminal cases, investigation, trial and execution) and judicial interpretation, etc. Over the years, among these powers, the most controversial issues are the power to approve or decide arrest, the power to investigate duty crimes and 19

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.

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the power to initiate the public interest litigations. After the reform which leads to the establishment of the State Supervision Commission in 2018, the dispute over the investigation power of duty crime of the procuratorial organ has become a question of whether the investigation of the Supervisory Commission should comply with the provisions of the Criminal Procedure Law. The dispute over the power to approve or decide on arrests has become a dispute over reasonableness and of the integration between arrest and prosecution in recent years. The public interest in litigation has been initiated by the procuratorial organ and has been become a bright spot in the procuratorial work since June 2017, when the Standing Committee of the National People’s Congress revised the Civil Procedure Law and Administrative Procedure Law of China. It formally established the public interest litigation system of the procuratorial organs. These specific changes will be discussed in detail later. The rational allocation of procuratorial power directly affects the realization of judicial justice. Therefore, in the development and improvement of the current procuratorial system in China, we must pay full attention to the specific national conditions of China, combined with the practice of procuratorial work, starting from the advantages of exercising the procuratorial power more efficiently on prosecution of criminal crimes and protection of human rights. More effectively, we should also learn beneficial experiences from foreign procuratorial systems and make the allocation of procuratorial power more scientific and reasonable. (2)

Paying Attention to the Role of Local Resources

Although the trial systems of most countries of the world are basically similar, the procuratorial systems are rich and diverse, which can be proved not only from the origin and development track of these procuratorial systems, but also from the basic framework and power nature of the procuratorial systems of other countries. The reason why there are such huge differences in the procuratorial system of different countries is closely related to the social, political and legal systems of those countries. However, it is not to say that it is impossible to learn the specific measures of the procuratorial systems of these various nations. On the contrary, with the development of the times and the continuous integration of the two legal systems, it is possible for them to learn from each other on how to combat crimes, protect human rights and the operation of procuratorial power. However, from the perspective of legal transplantation, the reform of China’s procuratorial system can only be introduced from other countries’ procedural system and procedural modes, China’s procuratorial system cannot copy them entirely. This is because “even if those good formal rules can be learned from foreign countries, the local informal rules are hard to change due to the inertia. New formal rules and the old informal rules are bound to be in conflict. As a result, the system that is accessible may be difficult to implement or be effective.”20 Actually, the legal transplantation has been an old topic since ancient times, but it still plagues those countries and regions which are relatively backward in their legal system. The direct transplanted modern Western legal system is not suitable because of the way China has developed its own legal system. The usual 20

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

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way is to regard the “modern legal system” as “a reason to be realized tomorrow and regard the local situation as an unavoidable reality existing in today’s world; thus, we are faced with a dilemma between the impossibility of rationality and the unwillingness to compromise in reality.”21 Therefore, as to the procuratorial system, while we would like to learn from the advanced experiences of foreign countries, we should also pay attention to the role of local resources in China. The procuratorial system of new China was established on the basis of the socialist system, with its own characteristics and advantages. After decades of judicial practice and continuous improvement, it has gradually been recognized and approved both by the international community and the legal community in China. On the basis of learning from and absorbing the successful experiences of foreign countries, while exploring the path of reform from the perspectives of both theory and practice, the procuratorial organs in China have accumulated rich practical experiences through various reforms, such as the reform of chief prosecutor,22 the reform of suggestion power for sentencing23 and the reform of the lenient system of accepting confession and punishment.24 As a special state legal supervision organ, China’s procuratorial organs should further improve their own characteristics in the reform and give full play to their own advantages. China’s procuratorial power has its own unique connotation, such as the large size of the Chinese procuratorial team, extensive procuratorial power and so on. Instead of just looking at the surface, according to a legal system or a country’s model, China’s procuratorial organs should be reformed into a pure prosecution service or an investigation leading organ with adequate powers. In fact, whether a system or practice can germinate and grow after transplantation or reference depends on whether or not it can adapt to the environmental factors such as other countries have addressed soil and climate. In other words, whether the whole legal environment of the country is suitable for the effective operation of a new system or method. For example, the British jury system was introduced to France, but it was eventually abolished because the French society found it was not suitable in its operation. At present, the participation system in France works very well. In the reform of the procuratorial system, countries all over the world are in the same situation. The most fundamental point is to attach importance to local resources, because “the Constitution of society cannot rely on a single system at any time, what is needed is a set of mutually restricted and complementary systems; these systems not only include those clearly stipulated in the written Constitution and laws, but also,

21

Su (1996, p. II). See Deng (2013, p. 26). 23 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). 24 For details about the lenient system for accepting confession and punishment and its difficult problems, please refer to Wang (2017, pp. 17–34). 22

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more importantly, include some informal systems such as conventions, habits, morals and customs which are constantly forming, developing and changing in society.”25 In fact, in corresponding systems of different countries, the same legal system does not exist, basically they are the same: in their differences, there is compatibility. Therefore, as far as the system itself is concerned, especially when it is connected with the traditional cultures, there is no distinction between advantages and disadvantages, but only whether it is suitable or not. Therefore, in the reform of China’s procuratorial system, some scholars believe that all powers of the procuratorial organs in criminal proceedings are specific procedural powers, which are not necessarily related to the so-called legal supervision organs and legal supervision powers. The basic function of the procuratorial organ is public prosecution; from this, it manifests its power. The procuratorial public prosecution power is the administration of justice. We should reform the judicial system according to the idea that the procuratorial organ establishes the pretrial procedure within the public prosecution.26 But in fact, to some extent, this view ignores the particularity of the constitutional system in China and the diversity of procuratorial systems in the world. It is true that public prosecution is the most important function of the procuratorial organs both in China and other countries. However, due to the differences in the history and origin of these procuratorial systems in other countries, as well as the differences in the social, political and legal system, not only are the development process and formation mode of the procuratorial systems diverse, but the procuratorial systems of various countries also present a variety of characteristics. Therefore, it is difficult to use a unified standard to make a general evaluation of the procuratorial systems of humanity, nor can it be positioned by a kind of natural power.27 In the traditional custom of China, the procuratorial organ is always regarded as a judicial organ, and the prosecutor is regarded as the main force that maintains social fairness and justice. “The establishment of legal supervision organs in China is not the whim of the founding leaders of the People’s Republic of China, nor the arbitrary decision of the constitutional makers, but it is the result of the state system, political system, national conditions and institutional tradition of China.”28 Therefore, in the reform and improvement of China’s current procuratorial system, we must pay full attention to our original local resources. (3)

Paying Attention to the Matching Systems

From the perspective of historical experiences, no matter whether it is the macrosystem reform or the change of micro-operation system, we must pay attention to the matching of relevant systems. Otherwise, the most perfect reform plan will be difficult to be effectively implemented and become like the moon in the water or the flower in a mirror. For example, in the amendment of the Criminal Procedure Law in 1996, China absorbed some adversary factors of the defense litigation system of the Common Law countries. However, due to the lack of relevant supporting 25

Su (1998, p. 71). See Chen (2002, p. 3). 27 See Liu (2007, pp. 77–81). 28 Zhu (2007, p. 108). 26

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systems in practice, such as the low rate of witnesses appearing in court, judges rarely pronounce decisions in court, and so the transfer of files is only changed from before the trial to after the trial,29 the change has not really brought into play the advantage and role of the adversarial litigation to better discover the truth of the case through the mutual inquiry and cross examination between the prosecution and the defense. From the perspective of historical tradition and judicial practice, both the adversarial litigation mode in Common Law System countries and the inquisitorial litigation mode in Civil Law System countries are compatible with the whole judicial system. “A system, practice or rule often works with the cooperation of other factors. Without the corresponding system, practice or rule, it is difficult to maintain its value.” “Any successful experience has its own special source for growth and matching conditions. Without specific historical conditions and cultural background, and without the corresponding social foundation and humanistic environment, even the successful experiences may lead the reform astray. It will eventually lose the national characteristics to emphasize the integration and result in simply copying.”30 Therefore, when we learn from some specific provisions and practices of foreign procuratorial systems, we should first understand that China’s criminal procedure system. By the introduction of adversarial factors in the court trials of Common Law countries under the mode of super authority, and there is still a big gap between China’s criminal procedure system and the pure adversarial litigation system. It is worth noting that the choice of any litigation system is the product of history, not the result of arbitrary choice at a specific point in time, but accumulated over decades or even hundreds of years of development. Although in its formation process, it does not rule out the coincidence of many similar factors. “The components of different litigation systems are connected to each other, thus forming a set of unique tendencies. When a specific system is integrated into a model, the addition of any new system should not only have the abstract purposiveness, but must be tested to see if it conforms. In the design of the system, the latter factor is even more important and at any time may be full of risks.”31 Therefore, in the reform of China’s procuratorial system, should not only consider the current litigation mode, but should meet the purposiveness, internal logical relations to achieve a harmonious state of effectiveness. In addition, it is also necessary to consider the coordination among various departments within the procuratorial organs and to improve the system of selection, appointment, evaluation, promotion and training of prosecutors. These provisions should be compatible with the criminal procedure and the whole judicial system, and they should also have inherent rationality to make the procuratorial work smoothly and let prosecutors give full development to their intelligence by constantly improving their professional quality and work skills. This would effectively promote the improvement of the cultural and professional organized structure and the quality of the procuratorial team. Finally, this will make the procuratorial

29

See Chen (2006, pp. 64–65). Liu and Zhang (2000, p. 12). 31 Wang (2006, p. 86). 30

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system play a powerful role in ensuring the social fairness and justice and building up of a harmonious society.

5.2.2.2

The Goal of Procuratorial Reform

Generally speaking, goals have the function of motivating peoples’ struggle. The development of appropriate goals can help to mobilize people’s enthusiasm and initiative and become the driving force. Naturally, the goal of procuratorial reform is no exception. As a goal, it should be not only challenging and attractive, but also be feasible. However, it is not a simple and easy thing to set up an appropriate goal for the reform of procuratorial system seen from the perspective of China’s national understanding. The reasonable goal design sets the arrangement of various systems and the choice of specific reform measures. It can also avoid the conflicts of various contradictions arising in the process of reform. All kinds of forces can be accumulated in order to steadily promote the reform and achieve the expected goals. Because the goal of procuratorial system reform is closely related to the reform of both judicial system and political system, we must adhere to the correct political direction. The reform of procuratorial system is an important part of the reform of judicial system and political system. It is closely related to the political power construction of the people’s democratic dictatorship, social fairness and justice, the people’s legitimate rights, interests and social stability. Fundamentally speaking, we must adhere to the four basic principles and adhere to the organic unity of the party’s leadership, the people’s ownership of the country and the rule of law.32 With the development and change of social situations and the continuous advancement of judicial reform, the specific objectives of judicial reform proposed by the Communist Party of China in its report are different. For example, in November, 2002, the report of the 16th National Congress of the Communist Party of China clearly put forward in the section dealing with political construction and political system reform: “Promote the reform of judicial system. The socialist judicial system must guarantee the realization of fairness and justice in the whole society. In accordance with the requirements of fair justice and strict law enforcement, we should improve the institutional setup by the division of functions, powers and the management system of judicial organs to further improving the judicial system by defining clear rights and responsibilities, mutual cooperation, restriction and operate efficiently. The judicial and procuratorial organs should be guaranteed to exercise their judicial and procuratorial powers independently and impartially in accordance with the law. We should improve the litigation procedures and protect the legitimate rights and interests of citizens and legal persons as well as effectively solve the problem of difficult implementation. We should also reform the work mechanism of judicial organs and the management system of human and financial resources, and gradually separate the judicial trials and prosecutions from judicial administrative affairs. We should strengthen the supervision of judicial work and punish corruption in the 32

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

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judicial field. A judicial team by engaging in firm politics, proficient in business, good work and fair law enforcement will arise.”33 Undoubtedly, it pointed out the direction and practices of the reform of judicial system in China. Identified is the need for macro-goal reform. After decades of exploration and practice, the reform of judicial system in China has achieved certain results and accumulated quite rich reform experiences. In addition, at that time, “the world situation, national and the party situation have been changed significantly. Consequently, we are faced with unprecedented development opportunities, risks and challenges. The whole Party must bear in mind the heavy trust of the people. Conscientiously harder work must continue to promote the scientific development, promote social harmony, improve people’s lives and enhance the people’s well-being.” Therefore, on the basis of the original reform, the report of the 18th National Congress of the CPC put forward higher requirements for the reform of judicial system by “promoting the rule of law comprehensively. The rule of law is the basic way to govern the country…... We should further deepen the reform of judicial system, adhere to and improve the socialist judicial system with Chinese characteristics and ensure that courts and the procuratorial organs exercise their judicial and procuratorial powers independently and fairly in accordance with the law.”34 Then, the Third Plenary Session of the 18th CPC Central Committee put forward specific requirements for judicial reform, which is reform of the judicial management system, promotion of the unified management of human resources, finance and property in the local courts and procuratorates at the provincial level by exploring the establishment of a judicial jurisdiction system that is properly separated from the administrative divisions so as to ensure a unified and correct implementation of national laws. We should establish a judicial personnel management system in line with professional characteristics, improve the operation mechanism of judicial power and promote the openness of trials and procuratorial affairs with recording and retaining the materials and documents of the whole trial. In addition, we should improve the judicial safeguard system of human rights. The state must respect and safeguard human rights. The law should further standardize the judicial procedures of sealing up, detaining, freezing and handling property involved in the case. We should improve the mechanism of preventing, correcting and investigating wrongful cases, strictly prohibit the extortion of confessions by torture, corporal punishment and maltreatment, strictly implement the exclusionary rule of illegally obtained evidence and gradually reduce the application of death penalty. In future faced with a weak external environment, world economic recovery, frequent local conflicts, turbulence and intensified global problems together with China’s economic development, China is entering a new normal. China and the Chinese Party have gone through an extraordinary five years of development process and judicial reform with facing many new challenges. As was pointed out in the report

33

The report made by Comrade Jiang Zemin at the 16th CPC National Congress comes from http:// news.xinhuanet.com/ziliao. 34 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

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of the 19th National Congress of the CPC: We must uphold the rule of law in an allround way. The rule of law is the essential requirement and importantly guarantees the socialism with Chinese characteristics. We must implement within the Party’s leadership the whole process of and all aspects of the rule of law by unswervingly following the path of socialist rule of law with Chinese characteristics, by adhering to this combination of the rule of law and of virtue, which will organically unify the rule of law and the Party, deepen the reform of judicial system, and improve the legal literacy and moral quality of the whole nation. “We will deepen the practice of ruling the country in accordance with the law. We must adhere to the rule of law, promote thorough legislation, strict law enforcement, fair justice to achieve law-abiding of the people. We will deepen the comprehensive reform of the judicial system, fully implement the judicial responsibility system and strive to ensure the people feel fairness and justice has been achieved. We should strengthen the popularization of law by all the people, build a socialist culture of rule of law and establish the idea of rule of law within the Constitution so everyone is equal before the law.”35 It can be said that the comprehensive rule of law is a profound revolution in the national governance. First of all, we should adhere to the rule of law, promote amended legislation, strict law enforcement, fair justice and law-abiding by the whole people. At the same time, we should deepen the reform of judicial system, comprehensively, fully implement the judicial responsibility and strive to make the people feel fairness and justice has prevailed. Undoubtedly, the report pointed out the direction and road for the reform of judicial system in China which identifies the specific problems and the need for macro-goals. In fact, while discussing the goal of the reform of the procuratorial system in China, there is a fundamental problem that must be solved first, that is, whether the reform of the procuratorial system should be carried out within the existing legal framework, or whether it should break through the limitations of the current constitutional framework by reforming our current procuratorial system from the perspective of realizing the rule of law and the operation of the judicial law in line with the international standards. There have been two different voices in the academic circles of China for more than fifteen years and these voices still exist today. One view is that we should take into account the particularity of China’s national system and political system, meaning that the reform of the procuratorial system should be within the constitutional system of the people’s democratic dictatorship and the people’s congress system, on the premise of adhering to the procuratorial organ established by the Constitution as a legal supervision organ. The defects existing in the current procuratorial system need reform to conform to the development of society in order to give full play to the role of legal supervision of the procuratorial organs in the protection of social fairness and justice and provide a strong judicial safeguard for the construction of a harmonious society in all aspects. The other view is that in order to realize the rule of law, we must break away from the shackles of the current constitutional system, examine China’s procuratorial system from a global and open perspective and seek fundamental changes of the system. Otherwise, the reform will 35

Xi (2017, p. 22).

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have obvious limitations, being a patched up and difficult to achieve substantive breakthroughs and results.36 As an academic argument, these two views seem to have some truth, but the reform of the procuratorial system is only a part of the reform of judicial system, and the reform of judicial system is inseparable from the political system of a country. Under the present situation, the current national system and the political system cannot be changed. However, when designing the goal of the reform of the procuratorial system, we should not only broaden our horizons by understanding the practices and international general rules in foreign countries with selectively learning from their judicial ideas and experiences, but also proceed from the reality of our country, help to solve the practical problems in the procuratorial work of China and guide the current reform practice of reform scientifically and reasonably. Since “the reform of the judicial system and the reform of the procuratorial system is related to the reality of the national system, the political system and the construction of a socialist country rule of law, the realization of social fairness and justice and the vital interests of the people as well as the social stability and the long-term stability of the country. It is impossible to stay on paper and these reforms be discussed in the ‘academic salon,’ but ultimately it is up to the politicians to make decisions and put them into practice through the existing state powers.”37 Therefore, the overall goal of procuratorial reform should be determined in accordance with the general spirits and requirements of the central government on the reform of judicial system, that is, the reform of judicial system should be the self-improvement and the development of the socialist judicial system with Chinese characteristics. In determining the goal of the procuratorial system reform, we must proceed from China’s national conditions, conform to the four basic principles, conform to the people’s democratic dictatorship and the people’s congress system, and conform to the operation law of the socialist modern judicial system. Because the current procuratorial system in China was established in accordance with the Constitution and laws, it is guided by the Marxist theory of state and laws in order to meet the consolidating of the people’s democratic dictatorship and the people’s congress system of China. This must meet the needs of punishing crimes and protecting human rights while maintaining judicial justice and ensuring the unity of the legal system, and on the basis of fully learning from and absorbing the beneficial experiences of human civilization of rule of law and the construction of rule of law at home and abroad with continuous reform and exploration as well as the historic choice made for establishment and development by a new China in the process of political power and legal construction, whose emergence has a scientific theoretical basis, solid political and profound practical foundation. Therefore, generally speaking, China’s current procuratorial system is in accordance with the national conditions and the four basic principles of the primary stage of socialism in 36

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

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China and also adapts to the nature of China’s political power and political system, which has its own inherent rationality, realistic vitality and its own characteristics and advantages. Since its establishment, it has played a good role in the aspects of punishing crimes, protecting the people and maintaining judicial justice as well as in ensuring the smooth progress of reform and opening up modernization of the socialist state. China’s political system, that is, the people’s congress system, also has its own advantages. In theory, it not only emphasizes the horizontal restriction and counterbalance of powers (among administrative power, judicial power and procuratorial power), but also emphasizes the vertical supervision and coordination of powers (among them, legislative, administrative, judicial and procuratorial power). This kind of state management mode, takes democracy and efficiency into consideration, is conducive to overcoming the disadvantages of separation between the legislature and the executive. Previously, there were disjointed and quarreling malpractices under the mode of separation of three powers. As Deng Xiaoping pointed out when he talked about the superiority of China’s political system: “what we have implemented is the unicameral system of the National People’s Congress, which is most in line with China’s reality. If the policy is correct and the direction is correct, this system will benefit a lot, contribute to the prosperity of the country and avoid a lot of involvement.”38 Therefore, the goal of procuratorial reform should be to improve and develop the procuratorial system with Chinese characteristics on the premise of adhering to the four basic principles, organic unity of the party’s leadership, the people being the masters of the country and the rule of law, that is to say, in accordance with the requirements of fair justice and strict law enforcement. In view of the actual problems and defects in legislation and practice, we should improve the institutional setup, division of powers and management system of the procuratorial organs so as to ensure that the procuratorial organs can exercise the procuratorial power independently and impartially in accordance with the law, give full play to the legal supervision function of the procuratorial organs, punish corruption in the judicial field, promote the coordinated development of the four kinds of procuratorial functions. A procuratorial team must be built to become such team with firm faith, implementing the law for the people with courage to take responsibility and integrity in order to ensure the realization of fairness and justice for the whole society. In other words, “in order to build a socialist procuratorial theoretical system with Chinese characteristics, we should adhere to the legal supervision nature of the procuratorial power in China, respect the general law of the development of the procuratorial power and further expand its extension according to social needs and judicial practice. It is necessary to comprehensively coordinate and fully develop from “highlighting the criminal work and despising the civil work” to “four kinds of procuratorial functions,” and realize the dynamic adjustment of the procuratorial power through external expansion in timely manner.”39

38 39

Deng (1993, p. 220). Xie and Chen (2021, p. 003).

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To be specific, there are still some problems and defects in China’s procuratorial system, which are manifested in the following aspects: firstly, the responsibility of legal supervision is not specific, the approach of supervision is single, and the scope of supervision is not comprehensive. There is a lack of an understanding mechanism and channel for discovering illegal behaviors in litigation activities and its investigation; secondly, the legal procedure is not perfect or over principled, or lacking specific operability. For example, the new criminal procedure law does not direct the behaviors of investigative organs, failing to investigate immediately or to make timely decisions, which makes the procuratorial organs lack sufficient basis for legal supervision; the third is the lack of independence in the exercise of procuratorial power under a strong administrative management mode. For example, the local party and government leaders illegally interfere in the procuratorial organs to handle cases to accord with the law from time to time, especially in those western regions with relatively undeveloped economy. Because of the bureaucratic and administrative modes, prosecutors lack independence and discretion, and the management of prosecutors has been completely applied the administrative management mode for a long time. Through the lack of identity protection, the privilege protection system and the procuratorial funds, these problems seriously affect the effective development of the procuratorial work and restrict the full play of the legal supervision function. As former Attorney General Jia Chunwang said: “At present, the contradiction between the legal supervision ability of procuratorial organs and the requirements of maintaining national security and social harmony and stability is more prominent, which is incompatible with the growing judicial demand of the whole society and the people’s desire for fairness and justice. To improve the ability of legal supervision, we must accelerate the reform of the procuratorial system and working mechanism, fundamentally solve many problems that restrict the development of procuratorial work, and promote the procuratorial organs to better play their role in ensuring the realization of fairness and justice in the whole society.”40 Now, more than fifteen years later, the original problems have not been properly solved and new problems are constantly emerging. As the socialism with Chinese characteristics has entered a new era, the main social contradiction in China has been transformed into the contradiction between the people’s growing need to better their lives and the imbalance of inadequate development of the nation. The transformation of this main contradiction means that after the people’s material and cultural lives have been greatly satisfied, their demands are increasing elsewhere, such as for democracy, rule of law, fairness, justice, security and environmental protection. Then, it also puts forward the higher requirements for the work of procuratorial organs and procuratorial procedures. How to better adapt to the changes of this era, the only way is for the procuratorial organs to continue the reform of the procuratorial system and working mechanism.

40

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.

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5.2.3 Key and Difficult Points of the Procuratorial Reform in China The so-called key focus of procuratorial reform refers to the important areas and links that must be reformed with the goal of strengthening the legal supervision function of the people’s procuratorate and strengthening the supervision and restriction of the procuratorial organs’ own law enforcement activities. The difficulty refers to the areas and aspects that involve many interests reconciliation and encounter many obstacles in the process of reform. The key points and difficulties sometimes overlap, but are not completely consistent. The following is a detailed analysis.

5.2.3.1

Key Issues of the Procuratorial Reform

The reform is not only the main theme of our times, but it is also a great driving force for the development of procuratorial work. Although China’s current procuratorial system is basically in line with China’s national conditions and the needs of socialist modernization, through the deepening of reform and opening up and changes of social and economic life and the judicial environment, as well as the improvement of people’s safeguarding of legitimate rights and interests and ensuring the realization of fairness and justice through judicial means, the procuratorial work is nowadays facing unprecedented challenges. In order to better meet these challenges, the procuratorial organs have carried out many arduous explorations over the past decades and achieved certain results in these reforms. However, in summing up these achievements, we can clearly see that the procuratorial reform in the past few years is basically a mechanism innovation at the working level within the current system and legal framework, without touching the deep-seated problems and institutional obstacles that restricting the development of procuratorial work. Moreover, there still exists a separate phenomenon between the reform of procuratorial organs and the reform of other departments, which lacks unity and coordination and has also prevented the formation of a joint force. The achievements in punishing judicial corruption also fall far behind the requirements of the Party and the people. Modernization promotes the opportunity to fulfill the wishes of the people, to deepen the reform of procuratorial system, to promote the rule of law and to provide a strong judicial guarantee for the construction of a harmonious society. As a special legal supervision organ, the procuratorial organ’s fundamental task and responsibility are to strictly enforce the law, supervise the correct implementation of it and maintain social fairness and justice. It carries the public’s expectations and demands for fairness and justice. The central government requires that the reform of the judicial system should start by addressing the fundamental interests of the overwhelming majority of the people. The problems of judicial injustice strongly reflected by the people and from the problems with which the people are most dissatisfied. Therefore, the key points of deepening procuratorial reform are to strengthen the legal supervision function of the people’s procuratorates and to strengthen the supervision and restriction of the procuratorial organ’s own law enforcement activities. Specifically:

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(1)

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The Reasonable Allocation of the Procuratorial Power

The procuratorial power is the general powers of the procuratorial organs. All activities of the procuratorial organs are carried out around how to exercise the procuratorial power scientifically, and the reasonable allocation of procuratorial power is undoubtedly a major difficulty in procuratorial reform. Due to the different positioning of the procuratorial organs in different countries, the functions and powers enjoyed by the procuratorial organs vary greatly. But generally speaking, the functions and powers enjoyed by the procuratorial organs in Civil Law countries are far more extensive than those in Common Law countries, which basically serve as pure public prosecution services. However, the procuratorial organ of China copied the mode of the Soviet Union’s procuratorial organ when it was established. So, it is more similar to those of the Civil Law countries in terms of functions, but there are many differences in the specific allocation of the procuratorial power. The report of the 17th National Congress of the CPC clearly proposed to deepen the reform of the judicial system and optimize the allocation of judicial functions and powers and also to ensure that the courts and the procuratorial organs independently and fairly exercise their judicial and procuratorial powers in accordance with the law. In the current procuratorial system reform, questions exist on how to conform to the historical trend, how to follow the rules of judicial operation and how to allocate the procuratorial power in China reasonably and scientifically, which has led to the existence of several different views. These related issues need to be furher studied with combining the actual situations of China in the future.41 (2)

Quality of the Subject Exercising Procuratorial Power

Prosecutors are individuals who exercise various powers and functions of the procuratorial organs and implement fairness and justice. The knowledge and legal experience of prosecutors directly affect the level of legal supervision and the effect of law enforcement. At present, there are more than 200,000 prosecutors in China, but their qualities are uneven. In order to improve the comprehensive quality of prosecutors, we must reform from the following aspects, such as improving the selection system of prosecutors, reforming the management system of prosecutors, reforming the rank system of prosecutors and optimizing the training system of prosecutors.42 The problem of the prosecutor management system of China is also one of the key points of the current reform. The main reason is that for many years, China has adopted the administrative management mode, which is not in line with the law of procuratorial work, and therefore is not conducive to the talents developed while lacking rationality and reasoning. In the past, the most serious problem was that the prosecutor’s management mode had a strong administrative color. Prosecutors all take the single wooden bridge of prosecutor, and the prosecutors also took the single wooden bridge of an administrative position. This kind of management system was not conducive to the professional construction of the procuratorial team and 41 42

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.

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seriously restricts the development of procuratorial work. So, in order to change such a management mode by removing the administrative color, since 2016, the reform of quota control of prosecutors has been implemented and this situation has changed a little. However, new problems have emerged after the prosecutors and the auxiliary procuratorial personnel are managed by classification in the process of operation, such as the relationship between them has become more complicated due to differences in pay; some assistant prosecutors lack dedication because of the limited promotion possibilities and their work attitude is lacking. On the contrary, with reduced prosecutors, the contradition between “the fewer people and more cases” has become more acute since the assistant prosecutors now can no longer handle cases independently as they did before. The reduction of personnel between departments is becoming difficult causing the number of cases handled by numerous different departments to vary greatly. The decision of whether the leaders should get a post and whether they should handle cases themselves after they get posts has also changed. In addition, there is yet another problem of how to scientifically and reasonably evaluate the performances of the prosecutors so as to achieve the best person for the position. All these problems can only be solved through further reform and improvement of the organization’s operation. (3)

The Guarantee of Funds for the Operation of the Procuratorial Power

Although the procuratorate is a state judicial organ in China, the problem of budget guarantee has been a big problem for the procuratorate for a long time. Because the shortage of funds is difficult to solve, it seriously restricts the effective running of the functions of the procuratorial organs. The problem of funds is mainly manifested in two aspects: firstly, the financial allocation is too small to meet the needs of procuratorial organs to perform their duties; secondly, the funds are imbalanced, that is to say, some local procuratorates are funded by local funding, which is closely related to the local economic development level and the ability of the director of the procuratorates. The directors in some poverty-stricken areas put most of their energy in trying to get more money to support the operation of the procuratorial organs and the procuratorates then are unable to focus on business construction at all. In recent years, this problem has been solved to a certain extent, but it is still a reform focus that needs to be resolved, particularly for local procuratorates in regions with a backward economic development level. Because the prosecutors are public servants of the state, who perform arduous, complex, professional and important procuratorial work with limited employment security, Western countries usually pay great attention to the post-security system of their prosecutors. In addition to stipulating that the expenditure of the procuratorates should be fully funded by the state, it also provides the practical personal security and better employment conditions for prosecutors. Generally speaking, due to the importance of procuratorial work, the salary of prosecutors is higher than that of civil servants at the same level, especially in Russia, which not only stipulates that the state should provide a special protection for the prosecutors from various organizational and legal aspects, but also provides a set of specific measures to ensure the safety of prosecutors and their families so as to prevent their personal safety

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from being threatened by the criminals. In addition, it also provides convenience for the prosecutors to perform their duties in various aspects, such as carrying guns, changing their work, or living places or changing their appearance. At the same time, they also provide favorable treatment for prosecutors, such as residential treatment and medical treatment social security and continuing education. Therefore, Russian prosecutors enjoy a high sense of professional honor and prestige in society. Belarus is also comparable to Russia’s level of protection for the prosecutors.43 Compared with the procuratorates’ funding guarantee system in Western countries, some local procuratorates in China are not only having difficulty guaranteeing their business funding (including case handling funds and equipment costs), but also are forced to deal with relatively low salaries and poor welfare levels for prosecutors. In fact, from the perspective of international general practice, in order to maintain their independence, impartiality and unity of the judiciary, the funds needed by the prosecutors and to perform their duties should be allocated by the national funding, reaching the courts and procuratorates at all levels step by step, such as in France and Germany. The only thing that judges and prosecutors at all levels need to think about is how to handle cases fairly in accordance with the law and safeguard the legitimate rights and interests of the state, the public and the parties with their own practical actions, without having to waste their brains trying to figure out how to make money for the interests of their own departments or to maintain their own decent standard of living. Of course, after the reform of the quota control prosecutor system, the salary of a post prosecutor has increased by 50%, and the salary of other staff members has also increased correspondingly. However, the level of professional security of prosecutors has still not been substantially addressed or improved. In order to ensure the sufficient and stable supply of funding for procuratorial organs, someone put forward the following solutions more than ten years ago: “… we believe that according to the needs of the procuratorial organs to perform their functions within characteristics of the management system of the procuratorial organs, it is appropriate to carry out the procuratorial fund management system of ‘the provincial overall planning of business funds and budget of other funds’ for those procuratorates below the provincial level at present, that is to say, the operational funds (including case handling funds and equipment costs) should be coordinated at the provincial level, The personnel funds and administrative funds should be guaranteed by finance at the same level; the infrastructure construction should be included in the local economic and social development plan, with the local government as the main solution, supplemented by financial subsidies from the central and higher authorities.”44 Undoubtedly, this solution takes into account the current specific national economies and the actual situation of imbalanced economic development in various 43

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. 44 Tong and Wan (2008, p. 13).

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regions in China. At the same time, it is also in line with the central policy spirit that the provincial financial departments should gradually establish an effective funding guarantee mechanism for political and legal organs in the actual situation of their own regions. Emergency funding measures may also be needed. However, from the essence of exercising the procuratorial power, the solution once and for all should also be a unified and full allocation of the central finance so as to solve the problem of imbalance of the financial security of the procuratorial organs in China. Only in this way may such a fundamental problem be solved to guarantee funding for the procuratorial organs, which will effectively eliminate the brain drain caused by the poor treatment in economically backward regions and get rid of the dependence of personnel shortages and fear of poor law enforcement caused by the localization of funds. A rational distribution of resources is needed in the national procuratorial system to improve the efficiency of the use of funds. The solution of the problem of funds and the guarantee of the prosecutor’s adequate salary are not only conducive to the guarantee of the prosecutor’s independent and fair performance of procuratorial power, but also conducive to attracting talented individuals from society to join the procuratorial team and also conducive to improving the quality of prosecutors and speeding up the professional development of the procuratorial team.

5.2.3.2

Difficulties in Procuratorial Reform

Since 1978, 40 years have passed since the procuratorial organs were restored. With the background that reform and opening up have become the main themes of the times, the national procuratorial organs have developed around the theme of building a socialist procuratorial system with Chinese characteristics, in order to give full scope to their functions in building a harmonious society, over decades carrying out many arduous and beneficial explorations, ranging from the system of chief prosecutor, the system of sentencing proposal, the system of people’s supervisor, to the system of judicial accountability and the system of quota control of prosecutors as well as the lenient system of accepting confessions and punishments and so on. The exploration of these reforms has undoubtedly helped to promote the comprehensive improvement of the procuratorial system and strengthen the credibility of the procuratorial organs. But generally speaking, these reform measures are basically mechanism innovation at the working level within the legal framework of the current system and do not touch the fundamental problems in the procuratorial system. At present, China’s procuratorial reform has reached a critical stage. In my opinion, in order to achieve real improvements, we must work hard on the key points of procuratorial reform, some of which are just the difficulties in the reform itself. Therefore, we must also solve the following difficult problems: (1)

The Optimal Allocation of Procuratorial Power

The optimization of procuratorial power involves the allocation, operation and supervision modes which not only depends on the position of procuratorial power in the

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national constitutional structure, but also depends on the distribution and management of powers within the procuratorial organs themselves. Therefore, the optimization and distribution of allocation of procuratorial power has naturally become a difficult problem in the reform. “The organ to which a certain power is allocated mainly depends on whether the nature of the power is consistent with that of the allocated organ.”45 Actually, the development of the procuratorial organs is not that the greater the power, the better. The key is that on the basis of the existing power framework, we should exercise all the powers given by the current law, really handle the cases well, and try our best to achieve the goal of fairness and justice. This is a pragmatic way of development. Although the procuratorial organs in China have experienced more than 90 years of development since the foundation of the people’s procuratorial sysem in 1931 and 40 years of reform and innovation from 1978, especially after the reform of the supervision system in 2018, the scope of the procuratorial power must be reestablished. In addition, the theoretical system of the original legal supervision of the procuratorial organs has not been really established, and the reasonable allocation of procuratorial power has not been completed, which is manifested in the limited amount of legal supervision, the weakness of supervision and the lack of an adequate means to supervise. In order to effectively safeguard judicial justice and improve the supervision ability, it is necessary to improve the scope, procedures and measures of legal supervision and strengthen the legal supervision of litigation activities while deepening procuratorial reform. Therefore, we can start from two aspects: one is the improvement of the external aspect, which is mainly to align the external relationship of the procuratorial organ, that is, through macro-judicial system reform by standardizing the relationship between the procuratorial organ and the ruling party, the state power, the administrative and other judicial organs, and strengthening the legal supervision functions of the procuratorial organ so as to guarantee the independence of the procuratorial organ and the procuratorial system. The second is the improvement of internal procedures, that is, starting from the inside of the procuratorial organs, we should establish a procuratorial management system in line with the law of judicial operation, improving the quality of law enforcement of supervision subjects, enhancing the ability to discover illegal acts and improving the level of correcting illegal acts. The specific plan is as follows: A.

External Improvement

Because the procuratorial power is only a connecting power in the criminal procedure, the reform of the procuratorial system, to improve the procuratorial power, is necessary by involving the power of the public security organ and the court. Any change in its external aspects is bound to require the cooperation and coordination of the two organs, which is also the key reason why optimizing the allocation of the procuratorial power has become the key difficulty in the reform. At present, after the reform of the supervision system, what is necessary is the reform of the supervision commission in its handling of duty crime cases. From the current existing problems 45

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

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in the operation of criminal prosecutorial power as identified by an empirical field study, the procuratorial power in China can be mainly improved from the following aspects: (A)

Perfecting the Supervision of Filing and Investigation Activities.

There are various problems existing in the process of the investigation of criminal cases which have long been of concern by certain people, particularly extorting confessions by torture, the abuse of the arrest power. The provision of a special legal supervision department will immediately strengthen the detection of illegal behaviors in the process of investigation. The supervision of filing a case is mainly to establish a mechanism for the public security organs to inform the people’s procuratorates in the investigation of a criminal case. In the process of investigation, it is necessary to implement the principles of legality, necessity and adaptability into the application of the criminal coercive measures. This is a difficult and complex problem. The criminal coercive measures are an important part of the criminal procedure system, which are directly related to the personal and property rights of all the parties. It is an important performance of a country’s judicial culture and human rights protection level. However, to improve the compulsory measures to make the criminal investigation a more standardized procedure, suitable legislation must be enacted. In view of the problem of arrest, the most serious compulsory measure in practice, some scholars have proposed legislative amendments to the arrest system. They suggest that the conditions of “detain” (Juliu拘留) stipulated in the original criminal procedure law should be changed to “arrest.” Accordingly, the original “arrest” should be changed to “detention for trial.” The main purpose of such amendment is to clarify the temporary nature of arrest, the difference between arrest from custody, and to implement the principle of separation of arrest and custody.46 In addition, some scholars suggest that arrest should be divided into arrest with and without a warrant. The main reasons are as follows: firstly, it is a common practice in many countries to distinguish arrest with or without a warrant; secondly, it effectively balances the relationship between the citizens’ personal freedom from arbitrary rights infringement and investigation efficiency.47 However, the amended criminal law in 2012 does not make corresponding amendments to this issue, but strictly limits the exception of not notifying the family members after taking compulsory actions. The CPL in 2018 has not been further amended. In fact, from the system level, in order to apply the arrest measures correctly and be effective in the investigation, it is necessary to divide the act of arrest and the decision of custody into two different independent procedures. This is also the common practice of countries and regions in the world. Whether it is necessary for the suspect to continue in detention after being arrested is to be re-examined and independently approved. In view of the fact that the approval of arrest is exercised by the procuratorial organ at present, in order to save judicial resources and avoid duplication of labor, the power of approval of detention can also be exercised by the procuratorial organ. It should be allocated to another officer and 46 47

Xu (2005, p. 56). Tian and Chen (2007, pp. 358–359).

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not the person in charge of prosecution. This avoids the phenomenon of abusing the power of approval of detention.48 (B)

Improving the Supervision of Criminal Trial Activities

The public prosecution of criminal cases is the main power of the procuratorial organs, which is closely related to the criminal trial system. As a special organ of legal supervision, it is faced with the difficult problem of supervision responsibility and how to improve the supervision of criminal trial activities. Over the years, the academic field has launched a heated discussion on this issue. In the face of the query that the procuratorial organ is “both an athlete and a referee,” the procuratorial organ must theoretically explain the rationality and legitimacy of the separation of supervision of trial activities and the function of prosecution. In addition, besides the theoretical support procedure, it must be implemented through legislation. From the practical point of view, it is mainly to standardize the scope and procedures of supervision measures, such as the people’s procuratorate’s access to trial files, investigation of illegal behaviors in trial activities, correction of illegal behaviors, availability of changing case handler and proposal of retrial prosecution. It is necessary to improve the system of General Director’s attendance at the trial committee meeting and criminal appeal system of the people’s court. Further, it should establish special procedures of trial supervision, and reforming the system of criminal retrial procedure, the system of reviewing death penalty and the system of legal supervision system. In fact, these are old problems that haven’t changed a little over the years. (C)

Perfecting the Supervision on the Serving of Penalty

There are many problems in the supervision of penalty service in China, such as weak means of supervision, weak measures of supervision and rough procedures for supervision. In addition, during the process of supervision, the main focus is on the protection of the retaliatory function of punishment, and which relatively ignores the respect and protection of the individual rights of prisoners. Therefore, the phenomenon of maltreating and punishing criminals, infringing on the legitimate rights and interests of criminals, mutual harm among criminals and prison bullies, and even causing the disablement or death of supervised personnel. As this occurs from time to time in prison, it limits the effectiveness of the supervision function of the procuratorial organ in the serving of penalty. Within the current legal framework, the procuratorial organs can consider alternate methods of supervision by setting up a supervision committee within the procuratorial organs. In addition to the internal staff of the procuratorial organs, their members can also follow the practice of appointing “people’s supervisors” and employ people who are willing to be trained and be employed in criminal supervision. 48

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.

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In addition to setting up a supervision committee, there is another way to establish the Prison Supervision Bureau. The work style of such a bureau is mainly to carry out the planned inspections with supplementation of temporary inspection, whose members include experts in management and health. In this way, we can find the problems in a timely manner by checking the operation of the prison and can put forward targeted suggestions. When the supervision bureau gets information and suspects a prison has problems in certain aspects, it can carry out a surprise inspection at the prison. Whether it is a planned inspection or an unannounced inspection, an evaluation report should be written. The conclusion of the report should play a decisive role in the evaluation of the prison warden’s performance and whether he remains employed.49 (D)

Perfecting the Supervision System of Civil and Administrative Litigation

The supervision system of civil and administrative litigation in China was established in the late 1980s and early 1990s, within the judicial system of China. For several decades, the practice has proved that such system accords with the actual national conditions in China, which has played a very important role in ensuring judicial justice. However, many years ago, some scholars had thought that the supervision system of civil and administrative litigation, especially the system of civil appeal put forward by the procuratorates, had a series of negative effects and advocated the fundamental abolition or weakening such a system; some have also suggested that the provisions of the courts and the procuratorial organs to start a retrial procedure should be abolished.50 Actually, the basic contents of the civil appeal system put forward by the procuratorates are reasonable. The key problem is how to perfect the main problems existing in the supervision of civil and administrative litigation so as to make it reasoned and more effective in maintaining judicial justice, such as asymmetric information, a single supervision mode, limited supervision range, unclear civil appeal scope and complicated procedure of filing an appeal, which are the key issues we should pay more attention to in deepening the reform of the procuratorial system in recent years. Generally speaking, it can be reformed from the following aspects: improving the civil and administrative appeal procedure, reforming the retrial system of appeal cases, improving the scope of civil litigation supervision and establishing the administrative public prosecution system. B.

Internal Improvement

The so-called internal improvement mainly refers to the self-improvement of existing procuratorial power, which can be started from three aspects:

49

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.

50

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(A)

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Rational Allocation of Procuratorial Powers

The procuratorial power is not as simple as judicial power. The scope and specific contents of procuratorial power are different in every country in the world. The procuratorial power in China should be allocated according to its own national conditions and actual needs. In fact, in China, the greater the procuratorial function entrusted by the Party and the state, the greater the responsibility of the procuratorial organs in the country’s governance. At the end of 2018, after the reform of supervision system, there was a great change in investigative power of the procuratorial organ, but the specific types of procuratorial power have only changed a little. At the same time, the power of public interest litigation is endowed to the procuratorial organs. So, at present, the procuratorial power can be divided into four basic functions: the power of investigation, the power of public prosecution, the power of procedural supervision and the power of public interest litigation. (B)

Operating the Procuratorial Power Correctly

The fundamental duty of the procuratorial organs is to exercise the procedural supervision to achieve fairness and justice. Therefore, the allocation and operation of procuratorial power should highlight the function of procedural supervision. Externally, we should get rid of the misunderstanding of “competing for power and profit” with the public security organs, the people’s courts and the supervision commission. Internally, we should correct the deviation of despising the work in prison, civil and administrative departments which has the nature of supervision, and consider whether it is conducive to the performance of legal supervision duties and the maintenance of fairness and justice. At present, we should consider the coordinated development of the four kinds of procuratorial functions, that it is to say, we should do criminal procuratorial work better, make civil procuratorial work strong, make administrative procuratorial work solid and make the work of public procuratorial litigation good.51 (C)

Improving the Internal Restriction Mechanism

Each business department should form a real mutual restriction mechanism within established procedure and produce an actual supervision and control force. For example, the supervision department of investigation should not only supervise the case filing and the investigation activities of the public security organ, but should also review the case filing and investigation of the self-investigation department in the procuratorial organ. Only in this way, can we prevent the abuse of procuratorial power and avoid being questioned by “who will supervise the supervisor”; meanwhile, we should fully implement and constantly improve the lenient system of accepting confession and punishment.

51

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

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On the Management System of Prosecutors

Influenced by the idea of a culture centered around officials and civil servants, which has existed for thousands of years in China, there is a strong atmosphere in the procuratorial organs that only the officials are superior and authoritative. As a prosecutor, nearly all of them hope to be promoted in their posts because only when they become officials can they have the power of command and control. In addition, all other aspects related to employment are improved as well, such as salary level, housing standard, car allocation and medical treatment. All vital interests are closely related to the position and rank of officials. In such an atmosphere, if a prosecutor remains a prosecutor all his life and has not been promoted to be a director of the section, the director of the department or the general director of the procuratorate, it is difficult for him to have any sense of honor and achievement. Since in reality, if there is no promotion of contrast at the administrative level, there is basically no voice and decision-making power for a prosecutor in his or her daily work. However, after the reform of the system of judicial accountability and the reform of quota control of prosecutors in recent years, this situation has improved a little. For example, in accordance with the provisions of the newly revised Organic Law of the People’s Procuratorate, senior prosecutors may participate in the composition of the procuratorial committee.52 In addition, in the process of handling cases, the prosecutors also lacked the independence and autonomy they had in the past. In practice, there was a set of strict administrative examination and approval procedures in the process of handling cases. The prosecutors must handle cases according to the opinions of the head of the section (department), the Deputy Director in charge, the General Director of the procuratorate and the superior procuratorate. All of these people had a say, instead of paying attention to the personal opinions and roles of the prosecutor who handled the cases. This kind of case handling procedure basically obliterated the judicial attribute of independence, neutrality and authority that the procuratorial power had and transformed it into pure administrative power. Since the prosecutor had no power in hand, he or she could not play a decisive role in handling cases. In the country where the idea of civil service is serious, the prosecutor in question naturally could not gain the favor of the common people, and the prosecutor’s own sense of superiority is also out of the question. Such a situation is very different from the status of prosecutors in Western countries. For example, in France, the prosecutor is a “standing” judge; in Australia, the prosecutor is a respected and envied profession and the prosecutor is very proud of their career. To change such an administrative tendency of management, is easier said than done, because once the reform involves their own vital interests, it is very difficult 52

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.

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for the officials at all levels to continue the reform. However, any reform in the procuratorial system must be supported by them; otherwise, everything will be in vain. This is also the reason why for many years, scholars have proposed to reform the administrative management system of prosecutors in China, but in reality, it has changed little. Undoubtedly, it has become a sensitive issue in the current procuratorial reform and also is one of the difficulties hindering reform. However, reform of the system of judicial accountability and the reform of quota control of prosecutors in recent years are giving the prosecutors greater responsibility and enhancing the dominant role of the prosecutors in handling cases. However, with the advancement of these two reforms, the following reform difficulties have emerged: how to strengthen supervision while delegating power by means of the judicial responsibility system? How to standardize and legalize security treatment corresponding to the separate duty sequence of the prosecutors? And how to fully stimulate enthusiasm of the judicial administrators? To solve these difficulties in the reforms, the only way in the future is to further deepen the procuratorial reform. (3)

Funding for the Procuratorial Organs

As mentioned above, the lack of funds and security for the procuratorial organs in China has become an important factor, which has restricted the functions of the procuratorial organs. Since the funds of the local procuratorial organs depend on the local financing and the development level of local economy to a great extent, the economic independence eventually leads to the personnel’s employment and promotion of the local procuratorial organs subject to the local Party and government organs; meanwhile, it also makes it difficult for the procuratorial organs to avoid the influence of local demands when exercising the function of legal supervision. If such a situation does not change, the legal supervision function of the procuratorial organ can only become a decoration and cannot be really implemented. However, it is not the procuratorial organ itself that can solve the problem of funds, which is also the main reason why it is such problem and difficulty in the current reforms. In order to solve the problem, we must undertake an overall consideration of the reform in the whole judicial system. Starting from the goal of building a fair, efficient and authoritative socialist judicial system and ensuring that the procuratorial organs independently exercise their procuratorial power in accordance with the law, it must be stipulated that state finance should allocate funds to the procuratorial organs at all levels. This is the only way to safeguard adequate funds once and for all. However, under the current national conditions of China, this kind of reform cannot be carried out in one step, especially under the severe impact of the COVID-19 epidemic; the financial allocation of the SPP this year has a decreased by 80 million yuan compared with 2020, causing difficulties to other local procuratorates. Therefore, under the condition that the current fiscal system of eating in separate stoves is basically unchanged, someone has put forward the proposal that a minimum safeguard system of funds is necessary. The SPP and the Ministry of Finance should formulate a unified minimum safeguard standard for procuratorial funds nationwide, and the procuratorates at the city and county levels must realize the minimum allocation standard in the budget. This can be regarded as a feasible

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measure to solve the problem of funds, but it is not easy to achieve this. It must be coordinated by the state.

5.2.4 The Path and Way of Procuratorial Reform To promote the reform of the procuratorial system, in accordance with the requirements of the Central Committee, we must proceed from the reality of judicial work, start with the elimination of the links and aspects that restrict and affect fair law enforcement and the seek to change the role of legal supervision that the procuratorial organs plays, and work hard to achieve actual results and implement the spirit and requirements of the Central Committee as well as truly make full play of the functional role of the procuratorial system in ensuring social fairness and justice and the construction of a harmonious society. But whether it is to achieve the overall goal of procuratorial reform, or the specific goals, must be realized through a specific pathway. As an important part of judicial reform, the procuratorial reform has all kinds of connections with the economic and political system reforms in China. Under the current specific national conditions in China, whether it is the reform of the economic system or political system, we must fully consider the current situation of China. We constantly seek improvements and innovations within the framework of the socialist constitutional system, so it is with the procuratorial reform. Since the Third Plenary Session of the 11th Central Committee, China’s economic system reform has gradually formed a system change mode with distinct Chinese characteristics in the process of transformation from a planned economy to a market economy. Such a gradual reform mode provides a new idea for developing countries to realize their economic and social modernization. As a superstructure, the reform of judicial system must also be coordinated with and adapted to the reform of economic system, and some successful experiences in the economic system can also be used as a reference. Some scholar has summarized the characteristics of China’s gradual economic system reform as “first villages then cities; first increment, then stock; first experiment, then spread; first partial breakthrough, then overall promotion.”53 The goal of the judicial system reform in China is to optimize the allocation of judicial functions and powers, standardize judicial behaviors, build a fair, efficient and authoritative socialist judicial system and ensure that the courts and procuratorial organs independently and fairly exercise their judicial and procuratorial powers in accordance with the law. At present, in a new era of socialism, the main contradiction of Chinese society has been transformed into the contradiction between the people’s growing desire to better their lives and the unbalanced and inadequate development of the nation. This has caused the procuratorial organs to have encountered a series of difficulties and controversies in practice, which pose unprecedented challenges and tests to the legal supervision ability of the procuratorial organs. It has become one of the important issues in the current procuratorial work to deepen procuratorial 53

Lin (2009, p. 1).

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reform. As an important part of the judicial system reform, the procuratorial reform can undoubtedly get some inspiration and reference from the successful economic system reform.

5.2.4.1

The Choice of Reform Path

As the procuratorial reform is an improvement and innovation within the framework of the socialist constitutional system, its goal is to improve the procuratorial system by improving and reforming the current procuratorial system and the problems existing in the procuratorial work mechanism, to promote the procuratorial organs to better perform legal supervision function, to give full play to the advantages of the procuratorial system in China and to develop the procuratorial cause scientifically. Therefore, the fundamental nature of procuratorial reform determines that the choice of the reform mode must be gradual, active and steady. However, the choice of the specific path is not arbitrary for those power-holders. This choice must also adapt to the essence of procuratorial reform. At the same time, according to the specific content of the reform, we should decide whether to adopt the topdown approach or the bottom-up approach. But no matter what kind of path it is, its basic changes must be gradual. From decades of practice in procuratorial work and reform experience, we have accumulated a lot of knowledge based on alternate methods and understood different aspects and contents of reform. For example, some reforms must take the way of bottom-up, first pilot and then spread, such was the case with the reform of the chief prosecutor system, the integration system of arrest and prosecution and the lenient system of accepting confession and punishment. (1)

The Bottom-Up Path

With the amendment of the CPL of China in 1996, the law addressed new trial procedures, especially strengthening the independence, the responsibility of the prosecutors so as to stabilize the public prosecution team and cultivate high-quality and expert prosecutors. In the late 1990s, some local procuratorates began to explore the reform of case management, for example, the Yangpu District procuratorates of Shanghai and Haidian District of Beijing established a “chief prosecutor system” and “a rank prosecutor system”; these changes achieved good results. Under the mechanism of separation of charge and prosecution, the system of chief prosecutor can better align out the relationship between prosecution and defense, improve the level of public prosecution, enhance the personal responsibility of prosecutors and improve the efficiency and quality of handling cases. In addition, it enables the straightening out of the relationship between the prosecutors and the police, while also strengthening the supervision of investigation. Actually, the achievements and problems found by these local procuratorates in implementing the system of chief prosecutor have allowed the development of essential organizational steps and useful work experiences to facilitate the comprehensive expansion of the system in the procuratorial organs all over the country. Undoubtedly, this is a typical case of taking the path of “from bottom to top, first experiment and then spread” in the process of procuratorial reform.

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For another example, in order to improve the efficiency of litigation, conserve the judicial resources, highlight the focus of attack and safeguard of legitimate rights and interests of the defendant, some local procuratorates have also explored the simplified trial system of the ordinary procedure of criminal cases. This reform has also achieved initial success, such as making the allocation of judicial resources more reasonable, alleviating the lack of judicial resources, significantly improving the efficiency of litigation and also helping to make up for the limitations of the application of summary procedure in the CPL of 1996. However, such reform has also encountered some problems, such as the concern about “determination before trial,” the understanding of this simplification and the improvement of supporting measures. Therefore, it can be said that any reform measure will encounter some difficulties and problems in the process of implementing it because no reform is carried out in isolation, but only when the corresponding measures are matched, can it be smoothly promoted and achieve the desired results. However, whether it is a success or failure, it will provide the corresponding experiences and lessons for the future reform. For example, the recent reform of the chief prosecutor system has provided valuable experiences for the reform of the quota control system for prosecutors. So, once all conditions are met, the reform experiences of the local procuratorates will become the basis for decision-making of the SPP and the driving force for adoption. (2)

The Top-Down Path

Although in the process of procuratorial reform, many specific contents of the reform are promoted from the bottom to the top through the pioneering work of local procuratorates, most reform programs should be formulated and implemented in a top-down way. For example, on January 10, 2021, the 15th National Conference of General Directors of the procuratorates was held in Beijing. At this meeting, the SPP comprehensively deployed the procuratorial development plan during the 14th Five-Year-Plan period and defined the objectives and tasks of procuratorial work in a new development stage, such as overall requirements, basic layout, strategic fulcrum and overall objectives. The decision-making of this conference was made by the highest level of the procuratorial organs, and the procuratorial organs at all levels must take it as the direction and scope of the reform by implementing it within the specific work process. In adopting the top-down reform path, the most important thing to pay attention to is that the guidance of higher authorities must be standardized; otherwise, it will bring the consequences of the lower authorities being tired of coping with the reform to make those same reforms. For example, in recent years, because all departments of the SPP have carried out various reform activities, the SPP has frequently launched several reform programs that have made the local procuratorates unable to cope with them, which in turn affected their specific business work. Therefore, as the leading body of the procuratorial organs, the SPP should, under the premise of adhering to the leadership of the Party, establish judicial standards, values and deploy the nationwide directive of strengthening and standardizing the exercise of the procuratorial power. This can guide the professional work and reduce the menial

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work so that the reform of the entire procuratorial organs can be carried out in an orderly and steady manner. At the same time, the practice over the years shows that “the reform of the procuratorial system should take the path of combining top-down and bottom-up. It is unreasonable to emphasize any path unilaterally, which is not only determined by the multiple paths generated by the rule of law, but also approved by the current practice of procuratorial reform in China.”54

5.2.4.2 (1)

The Mode of the Procuratorial Reform

The Choice of the Reform Mode

As mentioned above, the procuratorial reform in China is an important part of the reform of political and judicial systems, which is of a strong political, policy and legal nature. Under the unified leadership of the Party Central Committee of China, we must adhere to the supremacy of the Party’s cause, the supremacy of the people’s interests and the supremacy of the Constitution and the law. In accordance with the socialist legal idea and the Central Committee’s overall plan for deepening the reform of the judicial system, from top to bottom, we should actively and steadily push forward procuratorial reform. In the specific reform process, “we should not only encourage the people’s procuratorates at all levels to reform and innovate their working mechanism within the current legal framework, but also firmly safeguard the dignity and authority of the Constitution and the law. Any reform measure that conflicts with the provisions of current laws should first be submitted to the legislature to amend the relevant laws and regulations in accordance with the legal procedures, and then be implemented. The major and complex reforms can be piloted first after being reported to and approved by the Central Committee.”55 From these principles of reform, we can see that in the current situation of China, procuratorial reform can only be improved and innovated under the socialist constitutional system and by taking a gradual approach. The main reasons for such approach are as follows: A.

From the Perspective of Characteristics of the Procuratorial System in China

From the characteristics of the procuratorial system, China’s procuratorial system belongs to a part of the socialist system of China. In terms of nature, it is not only the legal supervisory organ of the state, but also the judicial organ; in terms of the management system, it implements “two kinds of leadership and one kind of supervision.” The way of exercising procuratorial power is the independence of the procuratorate. These characteristics are closely related to the political and economic system in China. The procuratorial system is a historical concept. The judicial environment, traditional foundation and cultural background formed by the procuratorial 54

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.

55

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system have occurred in stages dictated by different social structures. The different procuratorial systems have both similarities and differences. So, while perfecting the procuratorial system in China, we should not only follow the general rules, but also proceed from the national conditions and avoid copying inapplicable practices of other countries. B.

From the Perspective of Purpose of the Procuratorial Reform

From the perspective of purpose of the procuratorial reform, the procuratorial reform in China is carried out under the background of judicial reform, whose purpose is to meet the expectations of the broad masses of the people for better justice and realize the fairness and justice for the whole of society, which is not only the fundamental driving force of the reform, but also the purpose of it. Whether the reform is successful or not depends on whether the procuratorial function can be performed better and whether it is conducive to the realization of fairness and justice. The whole world finds itself in a trend of evolving or changing laws, and it is not necessary to change the whole system to achieve justice and fairness for the whole society. In fact, the reform of a system should realize a proper balance between stability and change so that the internal and external systems can promote each other to ensure social stability and harmony. Only in this way, can the reform move forward steadily. C.

From the Perspective of Goal of the Procuratorial Reform

From the perspective of goal of the procuratorial reform, both the specific and overall goals are to meet the needs of social, political, economic and cultural development. The ultimate goal is to achieve the maximum release of legal energy so that the law has greater authority in the entirety of social norms. In order to achieve this great goal, it is not possible to achieve it with a sudden enthusiasm and a little longer passion. On the contrary, it must be based on the current situation of the procuratorial system in China and by learning from applicable reasonable factors of foreign procuratorial systems. This will allow China’s procuratorial reform to continue to develop in depth and reach the final goal on the basis of first achieving specific goals. Since the procuratorial reform in China must consider its own characteristics, the purpose of reform and the overall goal and other comprehensive factors, these factors determine the pace of procuratorial reform. It cannot be too fast, but also must move forward steadily in a step by step development. As mentioned above, the procuratorial reform is only a part of judicial reform, which requires the overall consideration of the state at a higher level, rather than each department running its own affairs, or even fighting for power and profit to fulfill the interests of their own departments. Since the 1990s, the procuratorial reform has been swept by the tide of judicial reform and has been of wide concern by jurists and legal practitioners. The reform practice of the past 30 years has proved that gradual reform is the best choice, whether learning from Western developed countries or the pilot reform of the local procuratorates, for the choice of reform ideas and paths is commendable. In the process of reform, we should not only pay attention to the realization of the great value of truth, but also pay attention to the combination of it with the system and procedures that do not abandon the trivial.

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Characteristics of Gradual Approach

Forty years on from the Third Plenary Session of the 11th Central Committee, China’s reform and opening up has occurred. China’s economic system has successfully changed from a planned economy to a market economy formed from a model of institutional change with distinct Chinese characteristics. One of the important characteristics of such a reform model has been that of a gradual progress. At the same pace, the procuratorial organs in China have been restored and rebuilt over 40 years, the basic framework of the socialist legal system in China and the legal departments have been established. In the current situation, to deepen the reform of the judicial system, it is impossible for China to reform its procuratorial system according to the mode of some other country’s procuratorial system. From the perspective of the procuratorial systems in the world, there are obvious differences in the procuratorial systems arising under different constitutional systems. Therefore, the procuratorial reform in China is based on localization. When we learn from the reasonable factors of foreign procuratorial systems, we should fully consider the compatibility and integration of local constitutional structure and legal culture, and seek the best combination of universal truth that suit local resources in China. As mentioned above, the procuratorial reform in China must be carried out in a gradual way within the framework of a socialist political system and constitutional system, which has the following characteristics: A.

Designing the Reform Plan from the Height of the Whole Judicial System

While researching and pushing forward the procuratorial reform, we must deal with many relationships: the relationship between the procuratorial system and the constitutional system, the relationship between the invisible procedures and the legal rules, the relationship between cracking down on crimes and safeguarding human rights, the relationship between the procuratorial integration and the independent role of prosecutors, and the relationship between the procuratorial organ and the investigation organ as well as the judicial organs and so on. These relationships will reflect the orientation and direction of procuratorial reform. In the process of promoting reform, the optimization and improvement of procuratorial power also involves the power and interests of other state organs. If these relationships are not handled properly, the procuratorial reform will encounter many difficulties. Therefore, under the current system with “one government, one commission and two judicial organs” system in China,56 the procuratorial organ, as a legal supervision organ, paralleling with the government, the court and the commission, shoulders the responsibility of maintaining the unified implementation of national legal system and has a high legal status. The defect is the lack of corresponding authority. In order to change this situation, we must take advantage of the trend of continuing to promote the reform of judicial system, clearly define the extension of 56

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.

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legal supervision and endow the procuratorial organs with corresponding supervision authority and means from the system itself. B.

Making Overall Plans and Considering the Steps of Reform from a Nationwide Perspective

China is a big country with a vast territory, and the situation of local procuratorates in different places varies greatly. In promoting procuratorial reform, we must proceed from the experiences of local procuratorates and should not make it rigidly uniform. For instance, in the reform of lenient system of accepting confession and punishment, the supply of lawyers from all over the country should be considered. In some remote regions, the number of lawyers is very small and it is difficult to have a lawyer on duty to help the suspect in every case. The implementation of such work needs to be promoted gradually. Therefore, no matter which reform, the superior procuratorial organs should give full consideration to the execution and endurance of the local procuratorates in deployment of the said reform; otherwise, the reform will be abandoned halfway and it will be difficult to invigorate reform to achieve the expected goal. C.

Paying Full Attention to the Pilot Work

As stated above, the transformation of China’s economic system has been a gradual reform, as is the radical reform is corresponding to it. Although there is only one word difference between the two, the difference does not lie in the way and speed of the transformation, whether they bear mild or fierce, nor is it mainly caused by the different understanding and arrangement of the speed, way and order of marketization. Rather, it depends on whether it is an improvement or a “revolution.” The “revolution” here refers to the subversion of the socialist constitutional order and the replacement of a socialist system with a capitalist system. Therefore, according with the reform of the economic system, the procuratorial reform in China should also adopt the mode of gradual reform. In fact, the choice of reform mode is not arbitrary, but is determined by the nature of reform. Since the procuratorial reform is the improvement of the existing procuratorial system within the socialist constitutional system, we must pay attention to implementation of pilot projects before allowing their general national implementation. Over the past 40 years of reform, some reform projects have also achieved good results during pilot operation, such as the system of chief prosecutor and the lenient system of accepting confession and punishment. This pilot work involving the lenient system of accepting confession and punishment in criminal cases in some provinces shows that it is not only reasonable in legal theory, but also in line with the characteristics and requirements of the procuratorial activities and the laws concerning judicial operation. Therefore, in October 2018, the newly revised Criminal Procedure Law of China stipulated clearly such a system, and procuratorial organs at each level began to fully implement it at the beginning of 2019. It was presented at the 15th National Conference on Procuratorial Work held from January 10–11, 2021, as an important measure to promote national governance,

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that the lenient system of accepting confession and punishment has been stable at more than 80% during the past two years.57

5.3 The Specific Measures of the Reform of Procuratorial System in China At present, China has entered a new era of historical development, the main social contradictions have undergone historic changes and the social structure is undergoing an extensive and profound adjustment, coupled with the superposition of judicial system reform, national supervision and trial-centered litigation systems reform. The procuratorial organs are also facing this adjustment to the scope of power, the reforms of internal organs and the reconstruction of work patterns. The new situation puts forward higher requirements for procuratorial theory and practice. In order to meet these higher requirements and produce procuratorial outcomes with high quality, the procuratorial organs have carried out a series of reforms at the working level during the past five year. These reforms are the judicial accountability system, the quota control of prosecutors, the internal institutions, the integration of arrest and prosecution and the lenient system of accepting confession and punishment, etc. The detailed descriptions of these reform measures are as follows:

5.3.1 The Reform of the Judicial Accountability System The so-called judicial accountability (responsibility) system, as far as the procuratorial organs are concerned, refers to the problem of bearing judicial accountability for wrong cases in the procuratorial process of handling cases. The purpose of the reform of the judicial accountability system of the procuratorial organ is to aim at the extreme disadvantages of “procuratorial integration,” establish the reasonable relationship between superiors and subordinates within the procuratorial organs and the relative independent status of prosecutors, further clarify the bearing of judicial accountability and properly deal with the distribution of accountability between the prosecutor and the procuratorial auxiliary personnel.

5.3.1.1

Background

In order to implement the strategic plan of the 18th National Congress of the CPC of deepening the reform comprehensively, the Third Plenary Session of the 18th CPC Central Committee made a decision on several major issue. On November 15, 2013, 57

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

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the decision of the CPC Central Committee sought to bring about reform (hereinafter referred to as the “decision”). The decision expounds the great significance of China’s past thirty-five years of reform by summarizing the historical achievements and valuable experiences of China’s reform and enshrining the guiding ideology, overall thinking, main tasks and major measures for further reform by 2020. Then, the decision has become the guiding document and basis for the judicial organs to implement the reform of the judicial responsibility system. In theory, the judicial responsibility system refers to the sum of the system that the specific organs or subjects of the state confirm whether the judicial officer’s behavior should bear the legal responsibility and what kind of legal responsibility, he or she should bear in accordance with the provisions of the law. In other words, the judicial responsibility system means “let the judge judge, let the judge be responsible.” That is to say, while giving judges the leading and decision-making power in adjudicating cases, it emphasizes that the case handling judges should be responsible for the adjudication results. Although the judicial responsibility system emphasizes the responsibility of the judge’s misjudgment, it cannot be simply equal to the responsibility of wrongful decisions. In the process of its implementation, it cannot be separated from judicial neutrality and independence. In China, the procuratorial organs are traditionally regarded as a kind of judicial organ, so the recent reform of the judicial responsibility system is also the key content of procuratorial reform. Therefore, since the 18th National Congress of the CPC, the procuratorial organs have been making efforts to promote the reform of the judicial responsibility system. On September28, 2015, the SPP issued Several Opinions on Improving the Judicial Responsibility System of the People’s Procuratorate (hereinafter referred to as the opinions); in February 2019, the SPP issued the Procuratorial Reform Work Plan for 2018–2022 (hereinafter referred to as the reform plan. These two documents systematically plan and deploy procuratorial reform from the present and over the next few years. Since then, based on the relevant documents of the SPP, the provincial procuratorates have begun to formulate the implementation opinions suitable for the actual situation of the provincial procuratorial organs. For example, as a pilot procuratorate, Beijing Municipal People’s Procuratorate made the Implementation Opinions on the Pilot Work of the Judicial Responsibility Reform of the Beijing Municipal People’s Procuratorate, which was implemented on August 1, 2016. It included ten chapters packed with contents, such as the general principles concerning the goals and principles of perfecting the judicial responsibility system of the people’s procuratorate, organizational forms of handling cases, principles and mechanisms of authorization, division of powers for handling cases, procedures for examination, approval and command, responsibilities of various procuratorial personnel, procedures for reporting cases between the lower procuratorates and the upper ones, division of responsibilities and the determination and investigation of responsibilities. It can be said that the opinions not only point out the reform direction of the judicial responsibility system, but also provide a specific path to achieve the reform goal.

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Objectives and Principles

It can be said that the reform of judicial responsibility system is the “bull’s horns” in China that we must comprehensively and firmly grasp the reform of judicial system. It is the key to the establishment of the operation mechanism of judicial and the unity of power, responsibility, the clarity of power and responsibility and the path to perfect judicial responsibility. It is also the core of deepening the reform of the judicial system, which is of great significance to promote strict and fair justice. So, one of the goals of the procuratorial reform plan is to deepen the reform of judicial system, implement the judicial responsibility system fully, improve the supervising and controlling mechanism of the procuratorial power’s operation. This corresponds to the judicial responsibility system, and highlights the dominant position of the prosecutors in handling cases. In order to form a procuratorial power operation system, it must meet the requirements of “who handles the case, who is responsible, who decides who is responsible.” The judicial accountability system is in line with the law of judicial operation, and to strengthen the judicial responsibility system which is an effective means to overcome judicial malpractice in China. The basic principles of perfecting the judicial responsibility system of the people’s procuratorate are: persisting in following the judicial law, conforming to the characteristics of the procuratorial profession and persisting in the combination of highlighting the procurator’s dominant position in handling cases. There being a need to strengthen supervision, it should persist in the clarity of power and responsibility, which is being the equivalence of power and responsibility within the consistency of subjective fault and objective behavior, and the adaptability of responsibility and punishment.58

5.3.1.3

Main Contents

The first aspect is the allocation of powers, that is, he who handles a case is responsible for the case. In China, the Constitution and law stipulate that the people’s procuratorate independently exercises the procuratorial power in accordance with the law. However, it is not very clear about how the people’s procuratorate exercises the procuratorial power. Therefore, it is a collective power. The reform of the judicial responsibility system directly requires that the case handler be responsible for the case. So, who are the case handlers? At present, the case handlers include a single prosecutor or a case handling team of prosecutors.59 In some special cases, it also 58 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. 59 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.

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includes the procuratorial committee. The case handling team is divided into two types: temporary or fixed. The case handling team of prosecutors shall be composed of two or more post prosecutors. The head of the team is the chief prosecutor. The second aspect is responsibility. Since the power has been given to the case handler, he or she will, of course, be in the end responsible for the case. This issue is closely related to the independence of the prosecutor. Only when the prosecutor makes a decision independently can he be responsible for the decision. We should insist on the consistency of power and responsibility. The third aspect is that once a wrong conviction occurs, it is necessary to start the accountability procedure. The requirement of lifelong accountability was put forward by the decision of the 4th Plenary Session of the 18th CPC Central Committee and Committee of Political and Legislative Affairs. The opinions issued by the SPP were also formulated to implement the opinions of the central government on the judicial responsibility system, which also stipulates the contents of the responsibility to be taken for one’s whole life.60 However, this kind of lifelong responsibility system has put great pressure on the prosecutors. Whether it is conducive to the fair handling of cases remains to be proved in practice. In practice, we should establish the system of prosecutor’s responsibility, exemption can effectively provide a “safe harbor” for the prosecutors. As long as the prosecutors are faithful to the law and act as the guardian of the law, they need not worry about potential repercussion or have no worries in handling cases. The existence of judicial responsibility system should not affect their sense of responsibility and mission. So, it should make clear the specific circumstances of judicial responsibility exemption in the “Prosecutors Law.” It must strictly distinguish the judicial responsibility from judicial defects so that if a prosecutors’ intentional or major violations of law or dereliction of duty in the process of performing their duties occurs should be investigated and punished. Prosecutors who have performed their work with enough care should not have anything to fear. In addition, we must clearly realize that there has been a high tension between the operation logic of the judicial responsibility system and the operation logic of the procuratorial power within China, especially due to the principle of “procuratorial integration.” In the procuratorial system of China, the procuratorial integration emphasizes the leadership relationship of “the lower subordinate to the upper.” However, the reform of the judicial responsibility system emphasizes that “he who handles the case is responsible, and therefore he decides who is responsible,” that is, most cases are no longer subject to the “three-level examination and approval”, but are directly decided by the prosecutors in accordance with the law.61 “Such internal tension is not only a challenge to the reform of the judicial responsibility system, but 60

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

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also the reason why the principle of procuratorial integration has to be adjusted and improved under the background of such reform. Therefore, under the background of the judicial responsibility system reform, the key problem of the procuratorial integration reform is how to find a dynamic balance between the ‘procuratorial integration’ and the independent status of prosecutors so that they can continue to play their role. At the same time, it can highlight the dominant position of prosecutors in handling cases so as to achieve the goal of a fair, efficient and authoritative operation of procuratorial power.”62 So, in recent years, the reform of the quota control system of prosecutors, the reform of the integration of arrest and prosecution and the reform of the lenient system of accepting confession and punishment are all carried out diligently.

5.3.2 The Reform of Quota Control for Prosecutors The reform of quota control for prosecutors is a reform measure matched with the reform of judicial accountability system, which means that among all prosecutors, some prosecutors are determined as post prosecutors according to the standard of both political integrity and excellent ability so that they can become the main force in handling cases. The purpose of this reform is to attract outstanding procurators to become the front-line case handling force so as to improve the quality of case handling of the procuratorial organs.

5.3.2.1

Background

For a long time, the staff and prosecutors in the procuratorial organs in China have been managed in accordance with the management mode of ordinary civil servants. For many years, this kind of management mode has been criticized fiercely because it has caused quite serious consequences, such as the procuratorial organs have a strong administrative color, and all employees are crowded on the single wooden bridge of administrative promotion, which has resulted in a waste of talent. Many outstanding prosecutors have chosen to work in the comprehensive administrative departments to achieve promotion. This has resulted in a shortage of first-line case handlers; in the work mode, it needs to be examined and approved at all levels, which leads to the low efficiency in handling cases and no one can be held responsible for the wrong cases, and so on. However, the nature of procuratorial work is different from ordinary administrative work. In view of the arduousness, complexity, professionalism and importance of procuratorial work, most countries in the world have attached great importance to it and provide prosecutors with better remuneration conditions and corresponding welfare than ordinary civil servants. It can be said that the main reason for the reform of the quota control system of prosecutors is the malpractice brought 62

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

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about by the administrative management of judicial personnel. In addition, in an era of internet and big data, the work of procuratorial organs has also encountered a series of new problems and challenges. For example, the means of cybercrime have been constantly developing new methods of deceit, which puts forward the higher requirements for the professional level of prosecutors. How to promote the special, professional and elite construction of a procuratorial team and reasonably allocate human resources to meet the new challenges is also a motivation of the reform. Therefore, in order to change these disadvantages accumulated over the years, solve new problems and meet new challenges well, the Third Plenary Session of the 18th CPC Central Committee clearly pointed out that “a judicial personnel management system should be established which is different from that of ordinary civil servants.” The “Decision of the CPC Central Committee on Several Major Issues Concerning Promoting the Rule of Law Comprehensively” passed by the Fourth Plenary Session of the 18th CPC Central Committee also proposed that “we should speed up the management system of legal personnel in line with professional characteristics and establish the professional sequence of judges and prosecutors.” Therefore, the courts and the procuratorates have carried out the reform of the quota control system in accordance with the judicial law to allocate judicial human resources and realize the normalization, specialization and professionalization of prosecutors and judges. At the 16th meeting of the reform group of the CPC Central Committee on September 15, 2015, the pilot program for the reform of the sequence of separate posts of judges and prosecutors was passed. The so-called reform of the sequence of separate posts is actually the reform of the quota control system.

5.3.2.2

Specific Measures

In order to implement the spirit of the Central Committee of the CPC and the SPP regarding the reform of the classified management of judicial personnel, all provincial procuratorates quickly formulated implementation plans for the selection and timely appointment of the first batch of post-prosecutors in the province. Here, the People’s Procuratorate of Beijing Municipality serves as a typical and representative example. In 2016, in accordance with the requirements of “The Pilot Work Plan of Beijing Judicial System Reform” and “The Implementation Plan of Pilot Work of Judicial System Reform in the Procuratorial Organs in Beijing Municipality,” the People’s Procuratorate of Beijing Municipality proposed the implementation plan for the selection of the first batch of post prosecutors for all of the procuratorial organs of Beijing.63 Besides the guiding ideology and basic principles, the implementation plan includes the following main contents: work contents, specific steps and

63

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.

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work requirements. Each part has its own detailed provisions regarding the relevant contents. (1)

Work Contents

A.

Posts

Each procuratorate shall allocate the number of post prosecutors to specific procuratorial business, which includes: posts of general directors, deputy directors and members of the Procuratorial Committee; the posts that are engaged in procuratorial business work and undertaking judicial responsibility, such as approving and deciding arrests, prosecution, juvenile prosecution, duty crime investigation, investigation supervision, trial supervision, criminal execution prosecution, civil and administration prosecution, complaint and reviewing the decisions of the courts and other procuratorial professional work. The comprehensive business departments may, according to the needs of their work, be allocated with the necessary number of post prosecutors; other posts engaged in procuratorial business and undertaking the appropriate judicial responsibility are a general stipulation. At the same time, the implementation plan clearly stipulates that the number of post prosecutors should be assigned to the departments undertaking tasks of handling cases. The judicial administrative department does not set up the post of prosecutor. Likewise, the post of director of the political department (section) and discipline inspection team leader does not belong to the post of setting prosecutor. The prosecutors should work in the procuratorial professional posts and the prosecutors who hold leading positions should handle a certain number of cases. B.

Number of Posts

The number of the first batch of post prosecutors in the whole procuratorial organs in Beijing does not exceed 40% of the special posts for the Central Political and Legal Departments.64 The procuratorate of Beijing Municipality reasonably determines and approves the first batch of available posts in each procuratorate according to the number of cases and the authorized posts, while also taking into account the economic and social development, population and other factors in the jurisdiction where each procuratorate is located. The specific number shall be implemented in accordance with the Distribution Plan for the Number of Post Prosecutors of the Procuratorial Organs in Beijing, in which it is made very clear that the number of prosecutors may not exceed that set limits. C.

Qualifications

The applicants should meet some basic requirements, such as good political quality, good professional quality and professional ethics. In addition, there are some basic qualifications, such as the diploma (the present procurators should have a bachelor’s 64

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.

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degree or above, and the present assistant procurators should generally have a fulltime bachelor’s degree or above or a master’s degree or above), age, work years before applying for the post. However, the specific requirements for the posts in the procuratorates at different levels require different qualifications and experiences. D.

Method to Become a Post Prosecutor

The post prosecutors of first batch should take examinations and be evaluated by the Selection Committee. The specific work includes 11 steps, which are: formulating the plan, mobilizing and deploying it, registering and reviewing qualifications, taking examinations, evaluating proposed candidates and reviewing them in cooperation with the Selection Office, discussing and reviewing the applicants in the Selection Committee, determining the candidates by the Party Group of the People’s Procuratorate of Beijing Municipality and appointing post-prosecutors at different levels. Among these steps, the examinations are very important, the examination results are worth 100 points, of which the examination accounts for 30% and the evaluation accounts for 70%. The examination is conducted in written form with a full score of 100. The examination focuses on the relevant procuratorial professional knowledge and judicial ability and is organized and implemented by the Selection Office. The evaluation of actual performances should comprehensively examine the morality, ability, diligence, performance and honesty of the past three years, and focus on the ability of the applicant to handle cases and perform work. The specific evaluation methods should be determined by each procuratorate according to their own actual situations. The work requirements are general guiding, such as attaching great importance to it and organizing it carefully, adhering to standards and strict procedures and strengthening supervision and ensuring serious discipline. The quota control system of prosecutors is not only the basis of the classified management of judicial personnel, but also serves as the cornerstone of improving the judicial accountability system. The success of this reform will determine the success or failure of this round of the reform of judicial system. The recruitment work of the post-prosecutors involves the professional honor and vital interests of the prosecutors. All procuratorates should attach great importance to it and carefully organize it, especially the leading cadres. They should adhere to the people-oriented principles, clarify reform policy, do ideological work and strive to mobilize all positive factors in creating a good environment for the reform of the quota control system of prosecutors.

5.3.2.3

Obstacles and Resistance in the Process of Reform

Although the reform of the quota control of prosecutors is very important for the implementation of the reform of the judicial responsibility system and the deepening of the entire judicial reform. The leaders at each level of the procuratorial organs should also attach great importance to this reform process, because these reforms break the pattern of existing interests and change the phenomenon of the procuratorates eating of the “big wok rice” in the past, which affects the vital interests of

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procuratorial personnel and even calls for a sacrifice of the vested interests of some people, coupled with the unclear policies at the beginning of the reform and the dim future; this reform still encounters lots of obstacles and resistance, which are as follows: (1)

Internal Resistance

Firstly, the resistance came from the administrative staff. At the beginning of the reform of the quota control of prosecutors, the administrative staff of the comprehensive management department was worried that they were not engaged in business work and therefore would not be able to enter the posts. Their vested interests would be broken and they were reluctant to support the reform. The reason is that this group of people was selected to work in the comprehensive department because they were excellent at that time, but now they may not have the opportunity to enter the post. Moreover, after the classified personnel management of “post” and “non-post” is completed, they would be in a supporting position and have significantly smaller pay in the future. Moreover, under the current system of quota control of prosecutors, there is almost no opportunity for those people in administrative positions to enter the posts, which narrows the promotion channels for administrative personnel and inevitably affects their active support and enthusiasm for the reform altogether. For example, the director of the office and the director of the prosecution department were originally at the same administrative level and their salaries were nearly the same. However, after the reform, the director of the prosecution department, as a prosecutor, would enter the rank of “professional posts” and his salary would be significantly improved. This resistance cannot be ignored because the leaders of the administrative departments have the right to speak in the procuratorial organs. Secondly, the resistance also came from the prosecutors who lack the new qualifications required. Before the reform, anyone with the qualification of prosecutor could handle cases independently. Today, only 40% of prosecutors can be post prosecutors, meaning that they are able to handle cases independently. After all, this group is a minority. Once the experienced procurators who have worked all their lives in the procuratorial organs are unqualified to enter the posts, they can no longer handle cases independently and have to be led by young or unqualified people who are now serving as post prosecutors. Besides the salary, there is also a big psychological gap. And as for the young people, how does one direct those senior prosecutors in their work? (2)

External Restrictions

Justice serves the people. The goal of comprehensively promoting judicial reform and fully implementing the judicial responsibility system is to allow the people to experience fairness and justice in every judicial case. The judicial responsibility system is the key to the reform of the judicial system and the reform of the quota control of prosecutors is the cornerstone of implementing the judicial responsibility system. Therefore, the judicial reform must get the strong support of the people in order to advance more smoothly. “As to the judicial environment today, the public

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opinion plays a positive role in promoting judicial justice, perfecting the judicial system, and improving judicial authority as well as promoting the law cultivation of the citizens.”65 However, at the beginning of the reform of the quota control of prosecutors, even the personnel inside the procuratorial organs did not know much about the specific measures of such a reform and the people outside those procuratorial organs also knew little. As a result, this reform has not formed a favorable public opinion. So, on the whole, public opinion did not play any role in supporting this reform.

5.3.2.4

Existing Problems and Solutions

Although at the beginning of the reform of quota control of prosecutors, there were various obstacles faced by the procuratorial organs in China and the task of this reform seemed very arduous with many interests to be balanced, the reform has been pushed forward all the way and will not turn back. However, after the recent implementation of the reform of the quota control of prosecutors in the procuratorial organs at all levels, some new problems have arisen and need to be further solved in practice. (1)

The Contradiction between More Cases and Fewer People

This contradiction has already existed for many years. However, after the reform of the quota control system of prosecutors, only the post prosecutors can independently handle cases and appear in court to support the prosecution. Assistant prosecutors who previously appeared in court can no longer appear in court. As a result, the number of prosecutors who can appear in court independently has decreased sharply. However, with the advent of the era of “big data,” the number of internet crimes and economic crimes has increased significantly, and the contradiction between more cases and fewer people has become more obvious. How do we effectively solve such a contradiction? In my opinion, there are several ways to solve this contradiction: the first is to improve the quality of prosecutors and the complexity of cases handled, then to improve their work efficiency; the second is to let the post prosecutors flow vertically and horizontally; where there are many cases, the prosecutors who can handle cases independently will flow to them; the third is to allocate more qualified assistants for each post prosecutor so that the preparation of cases is basically completed by assistants. The qualified assistants can be recruited from society; the fourth is to make full use of the advanced information and technology by applying artificial intelligence to replace less complex routine work.66 At the same time, we should establish 65

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.

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a data sharing mechanism, implement file digitization, intelligent evidence extraction, interrogation and indictment generation as well as being a multi-dimensional push which includes case classification, relevant laws and regulations.67 (2)

The Candidates of Post Prosecutors are Contrary to the Original Intention of the System

The allocation of 39% for post-prosecutor is the special plan for the judicial personnel set by the central government, which is an “absolute red line” that cannot be overstepped. As a result, the competition to employ post prosecutors is really fierce. Driven by vital interest, some administrative personnel got the chance to be postprosecutors. However, these people are still engaged in the original administrative work, who are post prosecutors in name only and undertake fewer or simple cases, or simply let the auxiliary personnel handle cases for them.68 This phenomenon has also exacerbated the contradiction between more cases and fewer people just mentioned above. A similar situation has arisen regionally, the problem being the handling of cases after the leaders of the procuratorates become post prosecutors. Some leaders are busy with administrative affairs and therefore do not handle cases or only handle a few simple cases by themselves. To solve this problem, there are two countermeasures: one is to regulate and control the qualifications of post prosecutors and strictly control the exiting mechanism of post prosecutors. The other is to make the scientific, objective and fair evaluation standard of the prosecutors and procuratorial personnel by fully applying “big data,”69 which may contain the specific provisions of the type and number of cases handled at each level by the leaders of the procuratorial organs. Just as Attorney General Zhang Jun stressed that “if the leading cadres do not pass the ideological and political standards and have a weak sense of organization, we don’t expect the procuratorial team to have a good situation; if the general directors and deputy directors are not good at their business work, we don’t expect the prosecutors to pay attention to their business work; if the general director doesn’t actively handle cases in a down-to-earth manner, we don’t expect the implementation of the procuratorial management and the judicial responsibility system.”70 (3)

Without Mobilizing the Enthusiasm of Assistant Prosecutors

As stated above, due to the limited number of post prosecutors and the fact that many senior prosecutors have no chance to be recruited, after the reform, they can only 67

As to the detailed application of big data, you may see Ji et al. (2017, pp. 13–17). Wang (2020, pp. 78–79). 69 As to the application of big data in evaluating performances of the procuratorial personnel, you may see Ji and Lai (2018, pp. 165–174). 70 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.” 68

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become assistant prosecutors to assist the post prosecutors in handling cases. This causes the state of mind of these individuals to tilt “out of balance” and it is difficult for them to work with great enthusiasm again. In addition, due to the same reason of the limited number of post prosecutors, some young people who are assistant prosecutors do not know when they will have the opportunity to be promoted as post prosecutors, so their enthusiasm for work is also not high. It can be said that under the current situation, the flow of post prosecutors, assistants and the administrative assistants is something solidified, which has formed different patterns of talent development. In my opinion, there are two ways to solve this problem: one way is to improve the performance evaluation mechanism of the procuratorial organs so that we can clearly distinguish whether to select or not. Selection must gauge the worth ethic and examine performance on how much to do or how little to do, and how well to do or how badly to do, then give them the corresponding rewards retraining. The other way is to improve the entry and exit mechanism of post prosecutors. The post prosecutors who cannot handle cases or are able to only handle a few cases a year should withdraw from the post on the basis of the objective and fair evaluation. The excellent assistant prosecutors and administrative staff will then have more opportunities to become post prosecutors. Only in this way, can the three types of procuratorial personnel progress well and achieve everyone’s enthusiasm. The reform of judicial system is a systematic project, and the reform of the quota control system of prosecutors can be said to be one of the hardest nuts to crack. Only when it is carried out at the same time as the classified management of judicial personnel, the professional safeguard of judicial personnel and the overall management of human and property at the provincial level, can the expected goal of judicial justice be truly achieved. This can only be made possible by attracting excellent prosecutors to handle cases at the front line of the procuratorial work in China.

5.3.3 The Reform of Lenient System of Accepting Confessions and Punishment in Criminal Cases The lenient system of accepting confession and punishment is an important reform and stipulated in the newly revised CPL in 2018 after two years of pilot projects in several provinces. It has learned some experiences from the plea bargaining of the United States and is rooted in China’s negotiation culture, which is a manifestation of the cooperative criminal procedure model. The negotiation between prosecution and defense is a key link in the lenient system of accepting confession and punishment. In China, such negotiation is only applicable to sentencing negotiation in those cases with clear facts and sufficient evidence. The greatest feature and advantage of China’s negotiation between prosecution and defense is that it organically combines handling cases in accordance with the law with the negotiation between prosecution

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and defense, statutory leniency and negotiated leniency, which is beneficial to bothsides.71 So, it can be said that China’s lenient system of accepting confession and punishment is also with Chinese characteristics.

5.3.3.1

Background

Over the past five years, the reform of the lenient system of accepting confession and punishment has been a hot topic both in academic circles and those within the legal and law enforcement professions. It is a major reform plan made by the 4th Plenary Session of the 18th CPC Central Committee held in October 2014 to improve the lenient system of accepting confession and punishment (known as “the System” in rest of this section) in criminal proceedings. Authorized by the Standing Committee of the National People’s Congress, in November 2016, the Measures on Carrying out the Pilot Work of the Lenient System of Accepting Confession and Punishment in Criminal Cases in Some Regions were issued by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of National Security and the Ministry of Justice, which issued and carried out the pilot work in 18 cities including Beijing (the Measures). After two years of reform practice and pilot exploration, the revised Criminal Procedure Law in October, 2018 (the CPL) confirmed the achievements of such a reform and established the lenient system of accepting confession and punishment in criminal proceedings. “This system is of great significance to improve criminal procedure, punish crimes correctly and timely, allocate judicial resources reasonably, improve the quality and efficiency of handling criminal cases and it also has a far-reaching impact on judicial work.” “Nowadays, the criminal prosecution system of the main countries in the world has been developed and improved by the continuous integration of state prosecution and litigation negotiation. The lenient system in China also reflects the trend of integrating state prosecution and litigation negotiation. The System not only fully absorbs the reasonable elements of the system of plea bargaining and confession negotiation, but also highly conforms to the national conditions and the needs of judicial practice in China, which is a system of plea bargaining with Chinese characteristics established to meet the diversified judicial needs of the people and balance state prosecution and litigation democracy.”72 Therefore, how to implement the System has become an important work of the procuratorial organs. The following discusses main issues involved in the System with some disputes.

5.3.3.2

The Concept and Characteristics

The System refers to the legal system that the suspect or defendant voluntarily confesses his crimes and accept the facts of his accusations, agrees to the sentencing 71 72

See Zhu (2021, p. 3). Chen (2019, p. 6).

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proposal and signs a written declaration. In turn, he will receive a more lenient punishment in accordance with the law.73 However, there are some divergent views on how to understand the leniency of accepting confession and punishment. I will discuss them later. First, we look as the characteristics of the System: the first is that the admission of guilt and punishment is not only regulated by the procedure, but also must be adhered to requirements set down by the substantive law. The second is that the premise of admission of guilt and punishment is to determine that the defendant is really guilty, so we must not excessively reduce the relevant standard of proof of admission of guilt and punishment. The third is that from the final result, the people’s court should award the defendant leniency when sentencing him.74

5.3.3.3

How to Apply the System

In according with the stipulations of Article 15 of the newly revised Criminal Procedure Law, the System can be applied to all criminal cases, whether minor or serious. Article 15 in the General Provisions of the CPL stipulates that “the suspect and defendant voluntarily confess their crimes, admit the alleged facts of the crimes and accept the punishment, they can in return receive a lenient punishment that accords with the law.” This is the core and principled provision of the System. It determines the basic connotation and principles of the System. Then, there some other provisions on how to apply the System when reviewing the prosecution and trial practices. In the second paragraph of Article 176, the second paragraph of Article 190 and Article 201, which respectively stipulates what the People’s Procuratorate and the court should do. Since this is a new system, which is not only a principle of criminal justice, but also an important criminal system. It is a substantive, procedural and comprehensive legal system integrating substantive norms and procedural rules, the SPP attaches great importance to the implementation of the System.

5.3.3.4

The Achievements of the System

In August 2019, when holding the National Video-Telecom Conference on Criminal Prosecution by the Procuratorial Organs in Beijing, the SPP proposed to increase the application rate of the System to about 70%. At that time, many procuratorial staff felt that it was too difficult to achieve. But actually, the reason why the SPP proposed such a goal and vigorously promoted the application of the System is based on the following three reasons: first, the proportion of cases sentenced to less than three years of fixed-term imprisonment in China has reached more than 80%. The vast majority of such cases are cases in which the defendant pleads guilty, the original intentions of the system was designed to apply the lenient system to these types of 73 74

As to the details of these issues, you may see Zhu (2019b, pp. 318–319). Liao (2020, p. 102).

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cases. It is in line with the overall trend of quickly handling simple cases and precisely handling difficult ones. Second, through the early pilot and recent promotion of this legislation, it shows that this goal can be achieved and many regions have reached a higher applicable level. For example, from January to September in 2019, the application rate in Chongqing, Tianjin and Jiangsu was 78.8%, 67.6% and 60.3% respectively. In September, there were six provinces with the monthly application rate of more than 70%; 14 provinces with the monthly application rate of more than 60%, among which the provinces of Shaanxi, Guangxi, Heilongjiang, Guizhou and Hebei. Whereas in the non-pilot regions, Sichuan, Yunnan, Shanxi, Xinjiang Uygur Autonomous Region, Hainan and other non-pilot regions also exceeded 50%.75 These numbers show that as long as we change our idea, take the initiative to apply the System and strengthen coordination and cooperation, the application rate of 70% can be achieved. Third, the practice has proved that through the active efforts to carry out the work of accepting confession and punishment, promoting the application rate, which has a positive impact on effectively resolving the social contradictions, and reducing the social confrontation, which causes a corresponding improvement in the acceptance by the parties to the final decisions of handling cases. That is to say, this goal was based on the structure of criminal cases and judicial practice in China, which was reasonable and feasible. The subsequent procuratorial practice has proved that this goal is correct. According to the statistics of the relevant department of the SPP, by the end of 2019, the average proportion of cases in which the national procuratorial organs applied the System has reached more than 83%. In 2020, the application rate of the System of the procuratorial organs in China reached 86.8%, the adoption rate of sentencing suggestions reached 94.9% and the rate of accepting sentences in the first instance was 95.8%, which was 21.7 percentage points higher than that of other criminal cases. As an important measure to promote the modernization of the state governance system and governance capacity, the application rate of the System has been stable at more than 80% over the past two years.76 According to the latest statistics of the SPP, the corresponding figures in 2021 are as follows: the application rate exceeded 80%, the adoption rate exceeded 95% and the rate of acceping the sentencing in the first instance was 96.5%, which was 22 percentage points higher than that of other criminal cases. So, in practice, the System is of great significance to improve criminal procedure, punish crimes accurately and in a timely manner and allocate judicial resources reasonably. This has resulted in improved quality and efficiency of handling criminal cases and has had a far-reaching impact on all judicial work. The System is a typical litigation system designed on the basis of the prosecutor’s performance of leading responsibility in the criminal procedure. Such leading responsibility is stipulated by the newly revised CPL in 2018 criminal procedure law, which is a major requirement for the procuratorial organs in China. Though the satisfactory results have been achieved in applying the 75

Chen (2019, p. 7). The Attorney General Zhang Jun, Speech at the 15th National Procuratorial Work Conference, held in Beijing on January 10, 2021.

76

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System, there are still some problems to be solved and refinements made to improve the quality of prosecutors. Whether the sentencing suggestions put forward by the prosecutors should be a fixed penalty, a range of or summary one. This is still a difficult problem in theory and practice with some disputes. Can the standard of proof be lowered in the case of pleading guilty and accepting the punishment? Does the simplification of the court procedure deviate from the trial-centered litigation system? How do we safeguard the defendant’s right of appeal and how do we ensure that the procuratorial organ’s power of appeal is exercised correctly? And so on.77 These problems need to be further studied and refined in the development of judicial reform in the future in order to further standardize the sentencing suggenstions for handling cases of accepting confession and punishment and improve the quality of application.

5.3.4 The Reform of the Integration of Approving Arrest and Prosecution Under the background of judicial accountability system reform, the internal institutions reform of the procuratorial organs is naturally an important issue in recent years. In the reform of internal institutions, the most concerned topic is whether the power of approving arrest and the power of prosecution should be integrated or separated. Actually, these two operation modes have their own rationality, advantages and disadvantages. How to choose them really depends on the needs of procuratorial practice in China.

5.3.4.1

Background

Under the background of the reform of judicial responsibility system, the reform of quota control of prosecutors of the procuratorial organs has been basically promoted since the beginning of 2018. The reform of the internal institutions of the procuratorial organs is being further improved. How to integrate the internal organs more effectively in order to fully exercise procuratorial power is the topic of most concern within academic circles and relevant professions at this time, and the “hot issue” is whether the arrest and prosecution should be separated or integrated. Looking around the world, the power of arrest and the power of prosecution are two functions and powers set up by each country. The power of arrest is a means to force a criminal suspect to appear in the criminal proceedings. The power of prosecution is to initiate a trial procedure for a suspect and support the prosecution in the trial. However, which specific departments should exercise these two kinds of powers and how to exercise them, either with separation or integration, are very different depending on each particular country’s related provisions. 77

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

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In China, the procuratorial organs represent the interests of the state and society, according to the state principle of prosecution, by initiating public prosecution and supporting the same public prosecution in order to make criminals held their criminal responsibility by maintaining the unified implementation of the national laws. The power of arrest refers to the power of the procuratorial organ to examine the arrest application submitted by the public security organ and decide whether to arrest a suspect in accordance with the law. The power of arrest, which is the most severe compulsory measure in criminal proceedings, shoulders the dual responsibilities of combating crime and protecting human rights. Here, we need to explain the power of arrest in the criminal procedure in China. Although the word “arrest” is used in all criminal cases, the literal meaning is the same, and its substantive meaning is quite different. Arrest in Western countries emphasizes an act, that is, a measure of forcing suspects to appear in the case. Usually, it only brings a short time of personal imprisonment, and the law stipulates that the suspect should be brought to the judge in the shortest time possible. The judge will decide whether to detain the suspect in order to guarantee he will appear in the court. In China, the law stipulates that the arrest shall be applied for and executed by the public security organ and approved by the procuratorial organ. But an arrest in China is very different from that in Western countries because in the procedure design, the arrest and the custody is “integrated” into one procedure. Once the suspect is arrested, it means that he is detained for a long time. This is in contrast to Western countries, where the judge decides whether it is necessary to detain him continuously after arrest and the length of the detention period. Therefore, while discussing how to exercise the power of arrest, the key issue is whether the necessity of continuing custody can be reasonably and strictly examined. In practice, whether the power of examination is exercised by the judge or by the prosecutor is not only the difference in the setting of the state’s functions and powers, but also is compatible with other supporting systems. Which one is superior or inferior, it should not be judged only on a superficial basis. In China, there is both a historical inevitability and a practical feasibility for the procuratorial organs to exercise the power of approving arrest.78 In China, the premise is the two functions and powers are exercised by the procuratorial organs. How to operate the two powers most effectively within the procuratorial organs should be according to the development of the times and changes of the national conditions. From the perspective of historical changes and procuratorial practice, whether it is the integration of arrest and prosecution or the separation of arrest and prosecution, both have their own rationality, the focus is different. It is the internal structure of the procuratorial organ and the specific operation of procuratorial power, which provides flexibility. Therefore, in order to optimize the allocation of powers and ensure the most effective operation of procuratorial power, the Supreme People’s Procuratorate proposed 78

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).

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the reform of the integration of arrest and prosecution in early 2018. Previously, the operation mode of separation of the arrest and prosecution has been running rather well in the procuratorial system since 1999. This for such a reform has raised debate in the theoretical and practical circles.

5.3.4.2

The Advantages and Disadvantages of Two Modes

Looking at the history of the internal structure of the procuratorial organs in China, we find that after the recovery and reconstruction of the procuratorial organs in 1978, the first was the integration of arrest and prosecution. After 1999, the separation of arrest and prosecution began. In 2000, the SPP renamed the Department of Examination and Approval of Arrest as the Department of Supervision on Investigation, and the Department of Examination and Prosecution as the Department of Public Prosecution. The local procuratorial organs also set up two separate departments according to this decision. From a historical perspective, the procuratorial organs in China have been implementing the integration of approving arrest and the prosecution after the restoration and reconstruction. The separation of approving arrest and prosecution did not appear until 1999. From the perspective of procuratorial practice, we can say that both by degree they have their own rationality. However, the emphasis is different, the issue of internal organization setting of the procuratorial organs needs flexibility. (1)

The Advantages of Separation of Arrest and Prosecution

The so-called separation of arrest and prosecution, as far as the procuratorial organs in China is concerned, means that the power of approving arrest and the power of public prosecution are exercised by different internal departments and personnel within the procuratorial organs. To sum up, it has the following advantages: Firstly, relying on the professional classification, highlighting the different attributes of arrest and prosecution powers. The separation of arrest and prosecution is separated into two functional departments of the procuratorial organ, which are the Department of Investigation Supervision and the Department of Public Prosecution. They exercise different powers of arrest approval and prosecution, which fully respect and highlight the judicial attribute of approval of arrest and the administration of prosecution. In recent years, adhering to the idea of “the arrest should be cautious” and reducing the rate of pretrial detention, the Department of Investigation Supervision has given full play to its functions and undertaken the real responsibility of realizing the two major goals of punishing crime and protecting human rights. The rate of non-arrest has gradually been increasing across the country. The procuratorial organs have achieved good results in the following aspects: the promotion of public hearing for examining the arrest, the normal application of compulsory measures without custody, the enhancement of participation of the lawyers and strength of protecting the criminal suspect’s rights and interests. This improvement has been obtained on the basis of fully respecting the judicial attribute of the power of arrest.

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In promoting the reform of the trial center in the criminal procedure system, the Department of Public Prosecution made great efforts to build a criminal accusation system with evidence as the core. It is obvious to all that they have made great achievements in promoting the popularization and application of the system of separation of complex cases from simple ones and the lenient system of accepting confession and punishment. The reform of the Department of Public Prosecution focuses on crime accusation, which highlights the administrative attribute of the power of public prosecution. As the two major functions of the procuratorial organ, the power of arrest approval and the power of public prosecution are the two cornerstones of the procuratorial organ. Adhering to their respective functional responsibilities, the overall reform of the procuratorial organ is advancing steadily. Secondly, improving the quality of handling cases and strengthening the procedural justice through internal restriction. The current mechanism of separation of arrest and prosecution in criminal procuratorial work correctly separates the power of arrest approval from the power of prosecution, whose biggest highlight is to effectively prevent the occurrence of wrongful criminal conviction by strengthening legal supervision and improving the quality of handling cases. The main reason for weak supervision is not the lack of supervision caused by the separation of arrest and prosecution, but the lack of connection between the Departments of Investigation Supervision and the Department of Public Prosecution and the failure of breaking through the barriers of case information. If the two departments can break through the barrier of case information, it will realize the interactive connection and mutual supervision to accord with the specific requirements of each stage of litigation. Mutual support in promoting each other will increase efficiency and justice. Thirdly, giving consideration to the efficiency and protecting the legitimate rights and interests of the suspects effectively. The two goals of the criminal procedure law are to punish crimes and to protect human rights. The separation of arrest and prosecution can give better consideration to both quality and efficiency through internal division within the procuratorial organs. Only when efficiency and fairness are taken into consideration can the rights and interests of suspects be safeguarded. There is a certain degree of conflict between the quality of cases and the efficiency of handling them. The efficiency of handling cases requires that we should invest as little judicial resources as possible so to achieve litigation success and reduce the delay and backlog of cases. The quality of handling cases is to realize both in procedural and substantive justice, so it should be said that the quality is be the soul and lifeline of justice. The separation of arrest approval and prosecution can help to strengthen litigation supervision and improve the quality of handling cases through information communication between prosecutors who work in the Department of Investigation Supervision and the Department of Public Prosecution so as to ensure the legitimate rights and interests of the suspects. (2)

The Disadvantage of Separation of Arrest and Prosecution

After an empirical study, it was found that in practice the separation of arrest and prosecution had been implemented for nearly 20. At present, the biggest criticism

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comes from the fact that the procuratorial organs artificially separate the process in handling of cases, which results in duplicated reviews of the facts and evidence of a crime with wasting judicial resources, causing a delay in litigation time and reducing the efficiency of handling cases. The two aspects identified are as follows: Firstly, separating the process of handling cases and affecting the efficiency of dealing with cases. In essence, the setting of any system has its own advantages, but there are also corresponding failures. The original working mechanism of separation of arrest and prosecution, the reviewing of arrest and prosecution, was duplicated by the prosecutors in different departments. Compared with the integration of arrest and prosecution, it does cause a waste of judicial resources to a certain extent. According to the mechanism of separation for handling cases, there is an undeniable fact that the prosecutors of the Department of Investigation and Supervision have no way to follow up and understand the evidence necessary to bring about detention in the next stage of legal proceeding. The disadvantages of the separation mechanism of arrest and prosecution are obvious. Secondly, the insufficiency of the rigidity of guiding investigation and affecting the function of public prosecution. The procuratorial organs in China have the power of investigation of supervision, but they have no power of investigation themselves. The newly revised CPL in 2018 gives the procuratorial organs a small part of the investigative power to investigate the abuse of power by judicial officers, such as the extorting confession by torture. In China, the mode of investigation led by the police is the norm; the police conduct the investigation independently and the procuratorial organ does not have independent, active or effective supervision over the whole process of the investigation. The orientation of the procuratorial organ in China is the legal supervision organ, but such a legal supervision role of the procuratorial organ over the public security organ is a kind of flexible supervision, not rigid. In the setting of local organizations, the leader of the public security organs often has a higher position in the Party and government than the leader of the procuratorial organs and the procuratorial organs often have more flexibility and less rigidity to undertake a supervision function. In practice, the evidence of criminal cases in this stage of examination and prosecution is basically the same as that of the stage of examination and arrest, which is enough to show that the procuratorial organ’s supervision over the public security organ is not rigid enough. The public security organs usually pay more attention to the opinions of the Department of Supervision on Investigation at this stage of the investigation, and provide with the supplementary evidence timely. But after the arrest of the suspects, the public security organs often neglect to make corrections and do not provide evidence timely in the period of examination and prosecution, which leads to the case being returned to the supplementary investigation and the delay of the litigation time. The separation of arrest and prosecution divides the function of the procuratorial organs in leading the investigation done by the security organs into different stages so that the public security organs pay more attention to the arrest than the prosecution, which undoubtedly affects the function of public prosecution by the procuratorial organs.

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5.3.4.3

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Perspective on the Mechanism of Integration of Arrest and Prosecution

The so-called integration of arrest and prosecution means that the Department of Supervision on Investigation and the Department of Examination and Prosecution within the procuratorial organ are merged into one functional department. Accordingly, the power of approving arrest and prosecution are merged and handed over to the same prosecutor, whose essence is to change the legal orientation of the power of approving arrest from serving only the stage of investigation to both stages of investigation, reviewing and prosecution, this being required by the “trial-centered” reform of the criminal procedure system. The prosecution is to lead the investigation so as to establish a new working pattern of investigation serving the prosecution. (1)

The Advantages of the Integration of Arrest and Prosecution

A.

Avoiding Repeated Work and Alleviating the Contradiction of “More Cases and Fewer People” Effectively

The biggest advantage of the integration of arrest and prosecution is to improve the efficiency of handling cases. At present, after the reform of the system of quota control of prosecutors in the procuratorial organs, the contradiction between “more cases and fewer people” becomes more prominent. If the working mechanism of the integration of arrest and prosecution is implemented, when criminal cases are transferred within the procuratorial organs, the examination of prosecution or arrest are handled by the same prosecutor, there is no need to brief the case again, which can effectively avoid the unnecessary duplication of work. In the stage of examination of arrest, the overall grasp of the case can naturally extend to the stage of examination of prosecution. At the same time of case investigation, the prosecutors can intervene and guide the case investigation in advance and put forward legal opinions on evidence collection according to the prosecution standard of the case. This provides standardization of evidence collection activities of the investigative organs, improves the efficiency of collecting evidence and reduces inconsistencies caused in evidence collection. The process of prosecution examining evidence will result in improved efficiency of the procuratorial organs in handling cases. B.

Tracking and Supervising the Whole Process, Effectively Improving the Function of Procedural Supervision

The investigative organs in China should work together with the procuratorial organs in the prosecution of crimes. The prosecutor not only has the responsibility of examining the evidence, but also has the function of regulating and guiding the investigation activities.79 The integration of arrest and prosecution can implement the “one pole to the end” process of handling criminal cases within the procuratorial organs. This completely breaks through the barriers of handling cases between the various internal departments of the procuratorial organs. The whole process of tracking and 79

Ji and Liu (2006, p. 79).

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supervising cases by the post prosecutors, who can better follow up in the supervision of filing cases in the stages of reviewing and approving the arrest, as well as following up on the investigation activities of the investigative organs. The integration of arrest and prosecution can change the supervision mode by taking a procedural route approved by the procuratorial organs with allowing a greater legal supervision function. This approval methodology develops greater supervisory qualities by integrating the supervision resources resulting in the need for the public security organs to pay attention to the case filing supervision and correct the illegal investigation behaviors in time so as to improve the overall level of the public security organs indirectly. Therefore, from the perspective of the procuratorial practice, the integration of arrest and prosecution is more conducive to the procuratorial organs by playing their functions of supervision on investigation without hindrance or obstacle. C.

Showing the Subject of Handling Criminal Case and Effectively Implementing the Judicial Responsibility System

After the reform of integration of arrest and prosecution, the work of reviewing the arrest and prosecution are handled by the same prosecutor. The subject of responsibility for handling the case is clear. After reviewing and approving the arrest, if the case cannot be prosecuted or is acquitted by the court, the subject of responsibility for case quality evaluation is also clear. Unlike in the past, the phenomenon of “mutual buck passing” will be greatly reduced. D.

Strengthening Supervision and Improving the Quality of Legal Supervision

After the integration of approving arrest and prosecution, the functions of supervising the investigation of the public security organs and prosecution by the procuratorial organs are integrated. This greatly improves the participation degree and intensity of the prosecutors in handling cases. The procuratorial organs have greater control of the pretrial as the procuratorial organs guide the investigative organs to collect evidence to the prosecution standard. This improves the quality of the procuratorial organs in guiding the investigation, restricting and improving the supervision on the public security organs. In other words, the integration of arrest and prosecution is more conducive to the prosecutor to guide the investigation activities because the investigation belongs to the function of prosecution and serves the public prosecution essentially with the ultimate goal of the two being the same.80 (2)

Disadvantages of the Integration of Arrest and Prosecution

A.

Weakening the Independent Value of Arrest Procedure

The purpose of the integration of arrest and prosecution is to break the original pattern, in which the procuratorial organs handle the cases of supervision of investigation and the cases of public prosecution separately, and follow the principle of “he who approves the cases of arrest, prosecutes the cases,” which means that the two different powers of arrest and public prosecution are concentrated and exercised by the same 80

See Zhang (2018, p. 18).

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prosecutor. So, the power of reviewing and approving the arrest may become the vassal function of public prosecution, which is the key point that many scholars worried about at the beginning of such a reform. But in fact, the integration of arrest and prosecution means that in a case, the power of approving arrest and the power of public prosecution are exercised by the same prosecutor, which is neither the combination of two functions nor the combination of two procedures. However, the prosecutor also has the judicial jurisdiction to approve the arrest. In order to have the defendant convicted and punished by the prosecutor, it is easy for him to use the power of approving arrest to serve the prosecution by taking the prosecution’s conviction and sentencing standard to measure whether the arrest should be applied in reviewing and approving the arrest, which may lead to the result that an independent value of the procedure of approving the arrest may be weakened. B.

Taking the Standard of Prosecution as That of Approving Arrest

Under the background of the post-system reform, the post-prosecutor must face the challenge between the standard of approving the arrest and the standard of prosecution. According to the provisions of the CPL in 2018, the arrest standard is different from the prosecution standard. The standard of arrest is that “evidence proves the facts of the crime,” specifically, “two basics,” namely the basic criminal facts and the basic evidence; while the standard of prosecution is “clear facts” and “the evidence is indeed sufficient.” After the integration of arrest and prosecution, the post prosecutor’s emphasis on the arrest measures may be different from the consideration of the separation of arrest and prosecution. When considering whether to apply the arrest, the prosecutor will inevitably consider whether the case can be prosecuted in court. In addition, the pressure of the case quality evaluation will undoubtedly make the application conditions of arrest stricter. The consideration of the “penalty” condition in the arrest will naturally give way to the consideration of the “constitutive element” in prosecution. The strict control of the arrest conditions will bring greater challenges to the investigative organs. C.

Weakening the Internal Restriction Mechanism

The integration of the arrest with prosecution is an extension of the usual thinking of the procuratorial organs, which reflects the traditional concepts of “emphasizing cooperation, ignoring restriction” and “emphasizing efficiency, ignoring justice” within the procuratorial organs. In the setting of the power of arrest, the investigation supervision is also an important function, which cannot be measured by some amount of judicial resources. Procedural justice is one of the two cornerstones of judicial justice. The establishment of Department of Supervision on investigation and the Department of Examination and Prosecution served as an internal restriction mechanism of the procuratorial organs. The two departments should earnestly perform their supervision and restriction functions, strengthen internal communication and cooperation and further guarantee substantive justice in realizing procedural justice.

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The work mechanism of the integration of arrest and prosecution blurs the procedural boundaries stipulated in the CPL. If the internal restriction mechanisms of the procuratorial organs become weaker, it may ultimately fail. In this way, in addition to being criticized by academic circles, it may eventually spread to “substantive justice” due to the lack of “procedural justice.” Therefore, some scholars believe that practice departments should resolutely put an end to the practice of “integration of arrest and prosecution,” which is actually a step backwards way in improving the efficiency and accuracy of arrest.81 Actually, in China, on behalf of the national and social public interests, the procuratorial organs investigate the criminal responsibility by initiating and supporting the public prosecution so as to maintain the unified implementation of national laws, namely through the power of prosecution. The power of the procuratorial organs to examine the arrest application filed by the public security organs and to decide whether to approve the arrest is the power of approving arrest. In the process of operation, whether the power of arrest and the power of prosecution can be integrated or separated depends on the structure of procuratorial power and the adjustment of functions of procuratorial power. At the beginning of 2018, when the SPP put forward the reform of integrating the arrest and prosecution, the theoretical and practical circles raised many doubts. However, the combination of arrest and prosecution came into being under the background of several reforms, such as the reform of the supervisory system, the reform of the judicial responsibility system and the trial-centered procedural system, which can solve the practical dilemma of many cases and fewer people, and conform to the idea of the safeguarding of human rights. Therefore, it is justified in theory and reasonable in practice. In the past three years, from the perspective of procuratorial practice, the implementation of the integrated mechanism of arrest and prosecution has promoted the function of procedural supervision, enhanced legal supervision and also highlighted the principal position of prosecutors, which has been conducive to the implementation of the judicial accountability system. However, the problems that scholars worry about, such as the increase in the rate of arrests and the weakening of human rights protection, have not occurred yet. For example, in 2020, the national procuratorial organs approved and decided to arrest 770,561 suspects, which was a decrease of 29.2% from the year previous. There were 233,065 people who were not arrested, decrease of 25.7%, and the nonarrest rate was 23.3%, an increase of 0.9 percentage points. A total of 1,572,971

81

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.

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people were decided to prosecute, a decrease of 13.5%; the non-prosecuted individuals numbered 249,312, an increase of 31%, and the non-prosecution rate was 13.7%, an increase of 4.2 percentage points.82 Through an empirical research, scholars have shown that the integration of arrest and prosecution plays a positive role in promoting the exercise of procuratorial power. It is the adjustment and optimization of the internal function structure of the prosecution in criminal procedures, beyond that of the simple addition of the functions of arrest and prosecution. Still, in order to give full play to the efficiency and advantages of such a reform, we should further improve the mechanism of evaluation, operation and supervision of procuratorial power.

5.4 Conclusion In a word, under the background of the reform of judicial accountability system, the reform of trial-centered procedural system and the transferring of anti-corruption in recent years, the procuratorial organs in China have experienced unprecedented challenges and are also facing a new development opportunity. In order to integrate the existing procuratorial 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 have implemented a series of reforms to meet these challenges and seek a new development path, and these reforms are still on the way in further deepening and improving their corresponding measures. These reforms are based on the national conditions in China, regardless of success or failure, they will provide valuable experiences for future reform and aim at improving the procuratorial system with Chinese characteristics. In particular, it is woth mentioning that in order to give full play to the function of the legal supervision power of China’s procuratorial organs, on June15, 2021, the CPC Central Committee issued the Opinions of the CPC Central Committee on Strengthening the Legal Supervision of the Procuratorial Organs in the New Era (Commonly known as the Central No.28 Document). Subsequently, the main leaders responsible for all provinces (autonomous regions, municipalities) gave instructions or put forward requirements for implementing the Opinions. Till Jan.20, 2022, there are 21 provincial (regional, municipal) Party Committees have specially issued the relevant implementation opinions or work measures. It can be said that this is a good opportunity for the procuratorial organs at all levels to strengthen the work of legal supervision. In order to thoroughly implement the Opinions, the procuratorial organs themselves can strenghen the legal supervision from the following three aspects: the first is to establish authority with accuracy and optimize the quality and efficiency of legal supervision; the second is to promote the development through innovation

82

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.

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and enrich the connotation of legal supervision; the third is to strengthen intelligence with big data and improve the ability of legal supervision.83 In short, from the historical experience, whether it is the change of macro-system or the change of micro-mechanism, we must pay attention to the establishment of relevant supporting systems. Otherwise, the most perfect reform plan is difficult to be effectively implemented. A system, rule or practice can only play its role with the cooperation of other factors. Without the supporting systems and rules, any system, rule or practice is often difficult to maintain its value. For example, the internal institurions reform of the procuratorial organ in China, as the foothold of the judicial accountability system reform, must be matched with the responsibility system of handling cases and team of handling cases after the reform of quota control for prosecutors. Therefore, the reforms of procuratorial organs must carry out toplevel design and overall promotion, take into account the historical tradition and characteristics of China’s procuratorial organs, and learn from the beneficial practices of other countries so as to achieve the ultimate goal of judicial reform: fairness and efficiency with the continuous improvement and flourishing development of the procuratorial system with Chinese characteristics in the future.

References Aoki M (2001) translated by Zhou Li’an. 2001. Analysis on comparative system. Shanghai Far Eastern Press [Japan] Boyne SM (2014) The German Prosecution Service—guardians of the law? Spring-Verlag, Berlin Chen Guoqing (2019) Several issues on the application of the lenient system of accepting confession and punishment. People’s Procuratorial Semimonthly (23) Chen Ruihua (2006) The centrism of case file record—re-examination on China’s criminal trial methods. Chinese Journal of Law (4) Chen Weidong (2002) Reflection and reconstruction of the procuratorial power in China—analysis with public prosecution power as the core. Chinese Journal of Law (2) Chen Weidong, Li Xunhu (2006) The procuratorial integration and prosecutor’s independence. Chinese Journal of Law (1) Chen Yixing (2008) Rational thinking of procuratorial practice. China Procuratorial Press Colvin V, Stenning P (2019) The evolving role of the public prosecutor: challenges and innovation. Routledge (Taylor and Francis Group), London and New York Davis A (2007) Arbitrary justice: the power of the American Prosecutor. Oxford University Press, New York Deng Xiaoping (1993) Selected works of Deng Xiaoping, vol 3. The People’s Press Deng Siqing (2013) Reviewing the reform of prosecutors in charge system and its enlightenment. People’s Procuratorial Semimonthly (14) He Xiaojun (2020) The picture of handling of the accused’s confession cases in China since the reform and opening up. China Journal of Criminal Law (2) Ji Meijun (2003) On supervision of prosecution. Legal Science (6) Ji Meijun (2007) Human administration for prison and supervision on penalty execution. Journal of National Prosecutor’s College (2) Ji Meijun (2020) Can prosecutors be plaintiffs? Procuratorial Daily. August 27 83

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Appendix

The Author’s Publications and Research Projects Related to the Topics of This Book

Part 1: On the Discussion of the Prosecution Service in Other Countries 1. 2.

3. 4. 5. 6.

7.

8. 9.

10.

“Character Evidence in British Criminal Evidence Law”, Chinese Criminal Science (5), 1999. “The appointment of Australian judges” and “the role of Australian judges”, edited by Liu Lixian and Xie Pengcheng, published in the book of the Trend of Overseas Judicial Reform, China Founder Press, 2000. “Commonwealth Director of Public Prosecutions of Australia”, the Procuratorial Daily, June 12, 2001. “The Constitutional System in Australia”, the Procuratorial Daily, July 2, 2001. “The Office of the Director of Public Prosecution in NSW”, the Procuratorial Daily, September27, 2001. “Rules of Subpoena Investigation” (Chapter 9), “ Rules of Reviewing and Prosecution” (Chapter 11) and “Rules of Trial” (Chapter 17), published in the book of Rules of Criminal Proceedings in the U.S.A, General Editor: He Jiahong, Chief Editor: Li Xuejun, China Procuratorial Press, 2003. “Setting Up a Special Agency to Manage the police in the Danish Regional Prosecution Office”, the Procuratorial Daily, October 18, 2003. Another paper Concerning Denmark: “Danish Criminal Justice and Its Experiences”, Justice of China (8), 2004. “The Prosecution Service in Australia”, the People’s Procuratorial Semimonthly (1) 2004. “Australian Judicial System”, edited by He Jiahong, Chapter 4 of the book on Study on Judicial System In China and Foreign Countries, China Procuratorial Press, 2004. “The Europeanization of Criminal Law and Criminal Law Dimension of European Integration”, translated from English into Chinese, written by professor

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 M. Ji, Brief Introduction to the Procuratorial System in China, Understanding China, https://doi.org/10.1007/978-981-16-8611-5

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11. 12. 13. 14. 15. 16.

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

29.

Appendix: The Author’s Publications and Research Projects Related to the Topics …

John A.E.Vervaele, co-authored with Liao Ming, Journal of Comparative Law (5), 2005. “The System of Ombudsman in Danish Parliament and Its Experiences, the People’s Procuratorial Semimonthly (15), 2006. “Qualifications and Selection of Expert Witnesses in Foreign Countries”, Justice of China (6), 2007. “Study on the Admissibility of Expert Evidence in Britain”, Science of Law (6), 2007. “On Fault Liability of Expert Witness”, co-authored with Richard Lightfoot, Justice of China (2), 2008. “Study on the Admissibility Rules of Expert Evidence in Australia”, Evidence Science (2), 2008. “Australian Prosecutorial System”, edited by He Jiahong, Chap. 3 of the book on Comparative Study on Procuratorial System, China Procuratorial Press, 2008. “Happening to Meet Ruffians on the Road in Melbourne”, Jurist Teahouse (28), 2009. “Analysis on the Selection and Appointment System of Prosecutors”, Justice of China (3), 2010. “The power of Rule of Law, Refusal in Smiling, Xinjiang Procuratorial (2), 2011. “Perspective of Charge Negotiation System in Australia”, Journal of Eastern China University of Politics and Law (3), 2011. “Brief Introduction to the Prosecutorial System in Australia”, Contemporary Prosecutor (3), 2011. “Development of the Procuratorial System in Belarus”, Journal of National Prosecutors College (6), co-authored with Saciko Paul, 2012. “Analysis and Reference on Expert Witness System in Foreign Countries”, Justice of China (8), 2012. “Encountering with A Senior American Prosecutor–––Jeannette Rucker”, Jurist Teahouse (3), 2014. “Witnessing the Ceremony of Swearing An Oath by Local Prosecutors in the United States”, the Procuratorial daily, December 4, 2014. “Training and Enlightenment of Local Prosecutors in the United States”, the People’s Procuratorial Semimonthly (17), 2015. “Compensation for Criminal Wrongful Convictions in Australia”, Journal of National Prosecutors college (6), 2015. “Belarus Gives the Prosecutors a Broad Powers and Safeguards”, the Procuratorial Daily, co-authored with Saciko Paul, academic edition. February 3, 2015. “An Empirical Research on the Generation of Prosecutors of the District Prosecution Service in the United States and Professional Safeguard”, the Chinese Prosecutors (19), 2015.

Appendix: The Author’s Publications and Research Projects Related to the Topics …

30.

31.

32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51.

279

“Evidence Act 1995” of Australia and “Prosecution Policy of the Commonwealth”, translated from English to Chinese, published in the book of Criminal Procedure Laws of All Countries in the World (Oceania volume), China Procuratorial Press, 2016. “Comparative Study on Supervision of Penalty Execution between China and Britain”, a paper included in the Collection Book of the Sino-British Round Table Conference on Rule of Law, Beijing, November 24–25, 2016. A Little Garden of Law School”, Xinjiang Procuratorial (1), 2016. “ American Corruption and anti-corruption”, the Procuratorial Daily, July 19, 2016. “American Anti-Corruption Agencies”, the Procuratorial Daily, July 26, 2016. “American Anti-corruption Investigation Agency ––– FBI”, the Procuratorial Daily, August 2, 2016. “American Anti-corruption Review and Prosecution Agency”, the Procuratorial Daily, August 7, 2016. “American Supervisory Agency of Anti-corruption”, the Procuratorial Daily, August 14, 2016. “Legislation Keeping Pace with the Times to Improve Anti-corruption Efficiency in Britain”, the Procuratorial Daily, October 18, 2016. “Bribery Act 2010: Severity–––the Starting Point of Anti-corruption in Britain”, the Procuratorial Daily, October 25, 2016. “Serious Fraud Office–––An Important Anti-corruption Organization”, the Procuratorial Daily, November 1, 2016. “An Important Role of the Crown Prosecution Service in 30 Years Since Its Establishment”, the Procuratorial Daily, November 8, 2016. “Independent Commission Against Corruption: Efficiency Due to Independence”, the Procuratorial Daily, January 10, 2017. “Quality and Efficiency: Biggest Challenges in Corruption Investigation”, the Procuratorial Daily, January 17, 2017. “ICAC of NSW: Prevention is Better Than Punishment”, the Procuratorial Daily, January 24, 2017. “Employment Review–––the Focus of Prevention”, the Procuratorial Daily, February 7, 2017. “Why the Danish Police Are Clean”, the Procuratorial Daily, April 25, 2017. “The Miracle of Clean Government Comes From Three Aspects in New Zealand,” the Procuratorial Daily, June 13, 2017. “Many Factors Make Anti-corruption Difficult in India”, the Procuratorial Daily, August 1, 2017. “Anti-corruption Storm Is Extremely Fierce in Russia”, the Procuratorial Daily, October 24, 2017. “Russia: Many Factors Determine the Anti-corruption Has a Long Way to Go”, the Procuratorial Daily, October 31, 2017. “Anti-corruption Legislation and Anti-corruption Institutions in Belarus”, the Procuratorial Daily, December 5, 2017.

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52.

“Rigorous Work Style Is Reflected in Anti-corruption Legislation in Germany”, the Procuratorial Daily, April 2018 “Institutions and the People Work Together to Build a Large Anti-corruption Social Network”, the Procuratorial Daily, April 2018 “On the Powers and Professional Safeguard of Australian Prosecutors”, coauthored with Li Xin, Journal of Comparative Law (1), 2017. “Talking About “Private Attorney General”, the Procuratorial Daily, August6, 2020. “Qualification of Plaintiffs for Civilians and Social Organizations”, the Procuratorial Daily, August 13, 2020. “Can Prosecutors Be Plaintiffs?”, the Procuratorial Daily, August 27, 2020. “Commonness of Plaintiff System of Administrative Public Interest Litigation in Foreign Countries”, The Procuratorial Daily, September 3, 2020. “Requirements of Professional Ethics for German Prosecutors”, the Procuratorial Daily, December 14, 2020. “New Situations of Cyber Crime and Procuratorial Response”, co-authored with Lai Minwei, The People’s Procuratorial Semimonthly (17), 2021. Comparative Study on the System of Prosecution Service between China and Australia, Peking University Press, 2013.

53. 54. 55. 56. 57. 58. 59. 60. 61.

Part 2: On the Discussion of the Procuratorial System in China 1. 2. 3. 4. 5. 6.

7.

8.

“Sentencing Proposal Power and Power of Public Prosecution,” Legal Daily, August5, 2001. "Stepping Out of the Misunderstanding in Implementing the System of Sentencing Proposal”, the Procuratorial Daily, August 10, 2001. “Special Edition of Sentencing Proposal Power”, the Procuratorial Daily, October 2, 2001. “On Supervision of Prosecution”, Science of Law (6), 2003. “Research on the System of Sentencing Proposal Power”, Procuratorial Treatises (8), Law Press, 2004. “The System of Sentencing Proposal Power and the Criminal Judicial Justice”, the Jurist (3), 2004. This paper won the third prize of “Jinding Award” for the spiritual civilization construction of the 4th National Procuratorial Organs in December, 2006. “Research on Prosecution Supervision”, published in the book of Comparative Study on Criminal Justice Systems between China and the European Union, China Procuratorial Press, 2005. “On the Legislative Improvement of the Legal Supervision System of Reviewing Death Penalty”, the People’s Procuratorial Semimonthly (24), 2006.

Appendix: The Author’s Publications and Research Projects Related to the Topics …

9.

10. 11. 12. 13. 14. 15. 16. 17.

18. 19.

20. 21. 22. 23. 24.

25. 26. 27.

28.

29.

281

“Legislative Improvement of the System of Investigative Supervision”, published in the book of Theory and Practice of Procedural Law, edited by Chen Guangzhong, Wang Jiancheng and Zhang Weiping, Peking University Press, 2006. “Distribution Principle for Burden of Proof, Forum of Evidence (11), 2006. “Humanized Prison Management and Supervision of Penalty Execution”, Journal of National Prosecutors College (3), 2007. “Why Is It so Difficult to File a Case”, Jurist Teahouse (24), 2008. “Prosecutor’s Discretion and Its Role”, China Procuratorial Forum (1), 2008. “Comparative Study on the Procuratorial System”, first deputy editor in chief, China Procuratorial Press, 2008. “Analysis on the Selection and Appointment System of Prosecutors”, Justice of China (3), 2010. “Two cases with Different Skies”, Jurist Teahouse (3), 2010. “On the Rational Allocation of the Power to Approve Arrest”, getting the third prize of the First “Judicial Behaviors · Dongyue Forum” in June, 2010, which was published in Justice of China (10), 2011. “The Prosecutor’s System”, published in the book of Procuratorial Jurisprudence (Chapter11), edited by Zhu Xiaoqin, China Procuratorial Press, 2010. “Procuratorial Reform in Contemporary China”, published in the book of Research on Basic Scopes of Procuratorial Jurisprudence, edited by Lu Jianping, China Procuratorial Press, 2010. “Application of DNA Evidence in the Criminal Proceedings”, the People’s Procuratorial Semimonthly (8), 2010. “How Prosecutors Apply the Exclusionary Rules of Illegal Evidence in Trial”, the Procuratorial Daily, April 20, 2012. “On the Dilemmas and Outlet of Supervision on Filing on Criminal Cases”, co-authored with Dan Min, Law Review (2), 2013. “Value of Expert Evidence and the Revision of Judicial Authentication System in China”, Chinese Journal of Law (2), 2013. “Procedural Prevention of Criminal Wrongful Convictions ––– Under the Background of the Contents of the Revised Criminal Procedure Law in 2012, the People’s Procuratorial Semimonthly (5), 2013. “Usefulness Should Be Considered When Applying Expert Evidence”, the Newspaper of China Social Science, Law Edition, June 5, 2013. “The Rules of Law Must Be Respected”, the Procuratorial Daily, May 19, 2016. “Review and Application of Evidence in the Procuratorial Link for Reviewing and Approving Arrest”, the People’s Procuratorial Semimonthly (23), coauthored with Yao Shijin, 2016. “On Understanding and Application of New Provisions of Expert Evidence in the Criminal Procedure Law of China”, Forensic Examination of Belarus (1), 2016. “Challenges and Responses to the Procuratorial Work in An Era of Big Data”, the People’s Procuratorial Semimonthly (15), 2017. As an achievement of the

282

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31. 32.

33. 34.

35.

36.

Appendix: The Author’s Publications and Research Projects Related to the Topics …

research project of the Institute of Procuratorial Theory, this paper was reported to the leaders of the Supreme People’s Procuratorate. On September 5, 2017, Attorney General Cao Jianming gave the following instructions: the report is very good and timely. It can be used as a reference for the on-site meeting of “Intelligence of Procuratorial Business” (Suzhou city, Jiangsu province). The Leader’s Reference Document will be issued separately after the meeting. Then the paper was printed as the Leader’s Reference Document, No.45, September 29, 2017. “Perfection and Development of the Mechanism of Performance Evaluation for Prosecutors ––– Also on the Application of Big Data”, co-authored with Lai Minwei, China Law Review (3), 2018. “Recognition of the Integration of Arrest and Prosecution of the Procuratorial Organs, Procuratorial Treatise (23), Law Press, 2019. “On the Procuratorial Idea of Integrating Case Handling and Supervision–– – From the Perspective of Handling Criminal Cases”, co-authored with Lai Minwei and Xu Xu, the People’s Procuratorial Semimonthly (20), 2020. “Professional Safeguard of German Prosecutors and Its Reference Significance to China”, co-authored with Zhou Zunyou, China Law Review (5), 2020. “Investigation Supervision Should Be Strengthened under the Background of the Integration of Approving Arrest and Prosecution”, the Procuratorial Daily, November12, 2020. An Article On Suggestions of Implementing the Opinions of the CPC Central Committee on Strengthening the legal Supervision of the Procuratorial Organs in the New Era (commonly known as No.28 Document), submitted to the leaders of the SPP and printed as the Leader’s Reference Documnet, No.43, August 4, 2021. Thoughts on the High Quality Development of Legal Supervision in the New Era, the Procuratorial Daily, Nov.16, 2021.

Part 3: Research Projects Presided by the Author or as An Important Research Member 1. 2. 3. 4. 5. 6.

“Study on the System of Sentencing Proposals”, a project of the Supreme People’s Procuratorate, presided by associate professor Xie Pengcheng, 2001. “Study on the Evidence Law and Application”, presided by Professor He Jiahong, 2002. “The Rules and Cases in USA”, presided by Professor He Jiahong, 2002. “Study on the Judicial System in Foreign Countries and China”, presided by Professor He Jiahong, 2003. “Empirical Study on Wrongful Convictions”, presided by Professor He Jiahong, 2005. “Study on the System of Criminal Judicature in Foreign Countries”, presided by Professor He Jiahong, 2006.

Appendix: The Author’s Publications and Research Projects Related to the Topics …

7. 8. 9. 10.

11. 12. 13.

14.

15. 16.

17.

18. 19. 20. 21. 22. 23. 24. 25.

283

“Study on Exclusionary Rules for Illegally Obtained Evidence”, a project of Ford Foundation, presided by Professor Zhang Zhihui, 2007. “Comparative Study on the Prosecution service”, an important project of the SPP, presided by Professor He Jiahong, 2008. “Study on the System of Plea Bargaining”, a project of Found Foundation, presided by Professor Xie Pengcheng, 2006–2008. “Comparative Study of Prosecution Systems in China and Australia”, an important project of the Institute of Procuratorial Theory of SPP, presided by Associate Professor Ji Mejun, 2007. “Study on Procuratorial Jurisprudence”, presided by deputy General Director of the SPP Zhu Xiaoqing, a major research project of the SPP, 2008–2010. “Study on the Basic Scopes of Procuratorial Jurisprudence”, presided by Professor Lu Jianping, a key research project of the SPP, 2008–2010. “Study on the Legislative Amendment of the Criminal Procedure Law in China”, a project of Danish Centre for Human Rights, presided by Professor Zhang Zhihui, 2009–2010. “Research on the Rational Allocation of the Power to Approve Arrest”, a key research project of the Institute of Procuratorial Theory of the SPP, presided by associate professor Ji Meijun, 2011. “Study on the Procuratorial System in Belarus”, presided by professor Ji Meijun, a key topic of the Institute of the SPP, 2012~2013. “Study on the Implementation of the Amendments to the Criminal Procedure Law of PRC”, a research project of Danish Centre for Human Rights, presided by the leader of the Institute Wang Shou’an, 2012~2013. “Strengthening Prosecutors’ Role in Death Penalty Control”, a project of British Embassy, presided by the leader of the Institute Wang Shou’an, 2013~2014. “Study On Litigation of Public Interest, presided by professor Ji Meijun, 2015. “Study on the System of Training for Assistant District Attorney in USA, presided by professor Ji Meijun, 2015. “Review and Application of Evidence in the Procuratorial Link for Reviewing and Approving Arrest”, presided by professor Ji Meijun, 2016. “Opportunities and Challenges Faced by the Procuratorial Organs in an Era of Big Data”, presided by professor Ji Meijun, 2017. “Research on the Work Mechanism of the Integration of Approving Arrest and Prosecution”, presided by professor Ji Meijun, 2018. “Study on the System of Professional Safeguard for Prosecutors in Germany”, presided by professor Ji Meijun, 2019. “Study on the Procuratorial Idea of Supervising in Handling Cases and Handling Cases in Supervision”, presided by professor Ji Meijun, 2020. “Study on the Procuratorial Idea of Accurate Supervision”, presided by professor Ji Meijun, 2021.

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