P.R.C. Procurators Law (Draft Revisions) (2nd-Reading Draft)

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Period for solicitation of comments:2019-01-04 至 2019-02-03

Source:http://www.npc.gov.cn/npc/flcazqyj/2019-01/04/content_2070150.htm

Contents

Chapter I: General Provisions

Chapter III: Requirements and Selection of Procurators

Chapter IV: Appointment and Removal of Procurators

Chapter V: Management of Procurators

Chapter VI: Evaluation, Reward and Punishment of Procurators

Chapter VII: Procurator Professional Safeguards

Chapter VIII: Supplementary Provisions

 

Chapter I: General Provisions

Article 1: This law is formulated on the basis of the Constitution so as to advance the regularization, specialization, and professionalization of procurators; to strengthen the management of procurators; to ensure that the people's procuratorates independently exercise the procuratorate power; to ensure procurators' performance of their duties in accordance with law; to ensure judicial fairness; and to preserve the lawful rights and interests of procurators.

Article 2: Procurators are the procuratorate personnel who exercise state procuratorate powers in accordance with law; including the chief procurators, deputey chief procurators, and members of the procuratorial committee of the Supreme People's Procuratorate, all levels of local people's procuratorate, and military and other specialized people's procuratorates.

Article 3: Procurators must faithfully implement the Constitution and laws and serve the people wholeheartedly.

Article 4: Procurators shall be diligent and conscientious, honest and clean, and abide by professional ethics.

Article 5: Procurators performing their duties shall have the facts as their basis, with the law as their measure.

Article 6: Procurators performing their duties in accordance with law are protected by law and are not to be interfered with by administrative organs, social organizations and individuals.

Chapter II: Procurators' duties, obligations and rights

Article 7: Procurators' Duties:

(1) conduct legal supervision in accordance with law;

(2) conduct public prosecution on behalf of the state;

(3) Investigate criminal cases that the law provides are to be directly accepted by the people's procuratorate;

(4) Other duties provided for by law.

Procurators are responsible for decisions the make on cases within the scope of their authority.

Article 8: The chief procurator, deputy chief procurator and Procuratorial Committee members of people's procuratorates shall, in addition to performing their procuratorial duties, also perform the duties corresponding to their position.

Article 9: Procurators carry out work under the direction of the chief procurator, with the chief procurator deciding on major case handling matters. The chief procurator may entrust procurators with the exercise of a portion of some authority and may authorize procurators to sign legal documents.

Article 10: Procurators shall fulfill the following obligations:

(1) Strictly follow the Constitution and Laws.

(2) Enforcing the law impartially and never twisting the law for personal gain;

(3) Lawfully ensuring the procedural rights of litigation participants;

(4) Preserve the national interests and societal public interests, and preserve the lawful rights and interests of individuals and organizations;

(5) Protecting State secrets and procuratorial work secrets;

(6) Accepting legal oversight and public oversight in accordance with law;

(7) Through lawfully handling cases and using cases to explain the law, strengthen the entire population’s rule of law consciousness, and move the construction of a rule of law society forward;

(8) Other obligations provided for by law.

Article 11: Procurators enjoy the following rights:

(1) the authority and working conditions that procurators shall have to perform their duties;

(2) to not be transferred, removed, demoted, or sanctioned for reasons other than those legally prescribed and in accordance with legal procedures.

(3) that procurators performing their duties shall enjoy job security and welfare benefits;

(4) to have legal protection of the safety of their person, property, and domicile;

(5) To raise complaint petitions or make accusations;

(6) Other rights provided for by law.

Chapter III: Requirements and Selection of Procurators

Article 12: Those serving as procurators must meet the following conditions:

(1) Have citizenship of the People's Republic of China;

(2) Uphold the Constitution of the People's Republic of China;

(3) Have good political and professional character, and good conduct;

(4) Have the physical capacity to perform their duties normally;

(5) Have an undergraduate degree in law from an ordinary college and have received the rank of bachelor or higher; or have an undergraduate degree or above from a full-time ordinary college in a subject other than law, and have received master's degree in law or jurisprudence; or have an undergraduate degree or above from a full-time ordinary college, have received the corresponding degree, and have specialized legal professional knowledge;

(6) have engaged in legal work for five years. Of these, the number of years engaging in legal work may be expanded to four or three years respectively for those that have obtained a masters in law or jurisprudence, or obtained a JSD.

In areas where there are real difficulties meeting the academic requirements specified in item 5 of the preceding paragraph, upon review and confirmation by the Supreme People's Procuratorate, the academic requirements for procurators may be relaxed for a period of time to include bachelors degrees from colleges.

Article 13: The following people must not serve as procurators:

(1) Those who have received criminal penalties for having committed a crime;

(2) Those who have been dismissed from public office;

(3) Those whose certificates for practice as a lawyer or notary public have been revoked;

(4) Those with other situations provided for by law.

Article 14: New procurators are selected by means of both tests and evaluations, according to the criteria of both ability and integrity, from among those persons who have obtained legal professionals credentials in the the national unified legal professions qualification exam, and who have the requirements for becoming a procurator.

The chief procurators of people's procuratorate shall possess legal knowledge and legal practice experience. Deputy chief procurators, and procuratorial committee members shall be selected from among procurators, judges, or others with requirements to be procurators or judges.

Article 15: As necessary for procuratorial work, people's procuratorates may openly select procurators from those engaged in legal professions, such as lawyers and legal experts.

In addition to having the requirements for serving as a procurator and having received legal professional qualifications, lawyers participating in open selection shall have at least five years in actual practice and have rich experience and a good reputation; legal experts participating in the open selection should have a mid-level title or higher, and have been engaged in legal teaching or research for at least 5 years, with outstanding capacity for research and outstanding research accomplishments.

Article 16: Provinces, autonomous regions, and directly governed municipalities are to establish procurator selection committees, responsible for reviewing the professional ability of new procurator candidates.

Members of the provincial Procuratorial Selection Committee shall include procurator representatives of each level of local people's procuratorate and other representatives enganged in legal professions and relevant areas, of whom not less than one-third shall be procurator representatives.

The routine work of the provincial Procuratorial Selection Committees is to be undertaken by an office established within the provincial people's procuratorate. A Supreme People's Procuratorate Procuratorial Selection Committee shall be established for the selection of Supreme People's Procuratorate procurators, responsible for reviewing the professional ability of the procurator candidates.

Article 17: New procurators generally serve in the basic level procuratorates. Procurators of people's procuratorates at the municipal level or above are generally elected through the level-by-level selection method. The Supreme People's Procuratorate and the Provincial People's Procuratorate may select procurators from within the scope of the next two levels of people's procuratorate below.

Procurators selected for the municipal and provincial people's procuratorates are generally to have served as procurators for five years or more in a lower people's procuratorate and have three or more years of work experience relevant to the position they are selected for; procurators selected for the Supreme People's Procuratorate are generally to have served as procurators in the lower people's procuratorates for eight years or more, and have five or more years of work experience relevant to the position they are selected for.

Chapter IV: Appointment and Removal of Procurators

Article 18: The appointment and removal of procurators is to be handled in accordance with the scope of appointment and removal authority and procedures provided for by the Constitution and laws.

The chief procurator of the Supreme People’s Procuratorate is elected and removed by the National People’s Congress; its Deputy chief procurator, members of the procuratorial committee and procuratorate personnel are appointed and removed by request of Supreme People's Procuratorate's chief procurator to the Standing Committee of the National People's Congress.

The chief procurators of each level of local people’s procuratorate are elected and removed by that level of People’s Congress, and their deputy chief procurators, procuratorial committee members, and procuratorial personnel are appointed or removed by request of the chief procurator to the Standing Committee of that level of People’s Congress.

The appointment and removal of chief procurators of each level of local people’s procuratorate must be reported to people's procuratorate at the level above for approval to be requested from the standing committee of the people's congress at that level.

The chief procurators, deputy chief procurators, and procuratorial committee members, and procuratorate personnel of provincial, autonomous region, or directly governed municipality people’s procuratorates are appointed or removed by request of the provincial, autonomous region, or directly governed municipality people's procuratorate's chief procurator to the Standing Committee of that level of People’s Congress.

The appointment and removal of chief procurators, deputy chief procurators, procuratorial committee members, and procuratorate personnel of all levels of people's procuratorate of the Xinjiang Production and Construction Corps and specialized procuratorates, are to be in accordance with relevant provisions of the Standing Committee of the National People's Congress.

Article 19: After procurators are selected in accordance with legally-prescribed procedures, they shall take a constitutional oath when taking office.

Article 20: In any of the following circumstances, procurators shall apply for the removal from their office as a procurator:

(1) Where they have forfeited citizenship of the People's Republic of China;

(2) Where they are transferred from that procuratorate;

(3) Where position changes make it unnecessary to retain positions as procurators;

(4) Where case handling performance reviews do not meet standards for two consecutive years and they are unable to successfully serve as a procurator;

(5) Where they cannot perform their duties for a long time due to illness;

(6) Where they retire;

(7) Where they resign or should be discharged in accordance with law;

(8) Where they are unsuited to hold office due to violations of discipline or law.

Article 21: Where those who do not posses the legally-prescribed requirements or who violate the legally-prescribed procedures are selected as chief procurators of people's procuratorates, the people's procuratorate at the level above has the right to request the standing committee of the people's congress not approve it.

Article 22: Where it is discovered that a procurator is appointed in violation of the provisions of this Law, the organ that made the appointment shall revoke the appointment; where a higher people's procuratorate discovers that the appointment of a procurator in a lower people's procuratorate violates the conditions set forth in this Law, it shall request that the lower people's procuratorate to request that the organ that made the appointment revoke the appointment in accordance with law.

Article 23: Procurators must not concurrently serve as a member of the Standing Committee of a People's Congress and must not concurrently serve in a position at an administrative organ, supervision commission, or trial organ; and must not serve in a position at an enterprise or public institution, or at another for-profit organization, and must not concurrently serve as lawyer, arbitrator or notary public.

Article 24: Procurators may not hold the following positions at the same time where they are spouses, immediate blood relations, blood relationship within three generations, or close relatives by marriage:

(1) chief procurator, deputy chief procurator, of member of the procuratorial committee in the same people's procuratorate;

(2) chief procurator, deputy chief procurator , and other procurators in the same people's procuratorate;

(3) Procurators in the same operations department;

(4) the chief procurator or deputy chief procurator in people's procuratorates at adjacent levels.

Article 25: Where procurators' spouses or children have of the following circumstances, the procurators shall recuse themselves from a post:

(1) Serving as a partner or founder of a law firm within the jurisdiction of the procuratorate where the procurator serves;

(2) As a lawyer,serving as an agent ad litem or defender in the jurisdiction of the people's procuratorate where the procurator serves, or providing other paid legal services to parties in case proceedings.

Chapter V: Management of Procurators

Article 26: A personnel ratio system is implemented for procurators. The personnel ratio of procurators is determined on the basis of factors such as the case volume, the economic and social development situation, the population size, and the level of people's procuratorate, with total numbers controlled and dynamically managed within provinces, autonomous regions, and directly governed municipalities, with priority consideration given to the case handling needs of basic level people's procuratorates and local people's procuratorates with a large number of cases.

Where there are vacancies in the procuratorial personnel ratios, procedures are to be promptly followed to supplement. The number of procurators in the Supreme People's Procuratorate is determined by the Supreme People's Procuratorate in consultation with relevant departments.

Article 27: An independent job sequence administration is carried out for procurators. Procurators can be divided into twelve levels, as follows: (1) Chief Procurator; (2) first level grand procurator; (3) second level grand procurator; (4) first level superior procurator; (5) second level superior procurator; (6) third level superior procurator; (7) fourth level superior procurator; (8) first level procurator; (9) second level procurator; (10) third level procurator; (11) fourth level procurator; (12) fifth level procurator.

Article 28: The chief procurator of the Supreme People's Procuratorate is the Grand Chief Procurator

Article 29: The determination of procurators' rank is based on their showing of integrity and ability, their professional skill level, their years of procurator practice and work, and so forth.

Procurators are promoted through a combination of regular periodic promotions and selective promotions, and frontline case handling procurators who are exceptional or that are especially needed for work may be specially selected for promotion.

Article 30: The set up and confirmation of procurators' ranks, and specific measures for their promotion, are to be provided for elsewhere by the state.

Article 31: A uniform system of pre-career training is to be carried out for new procurators.

Article 32: Training in theory and operations shall be systematically carried out for procurators.

Procurators' training is to implement the principles of linking theory with practice, teaching according to needs, and stressing practical results.

Article 33: Procurators' training is to be one of the bases for their serving as a procurator and promotion.

Article 34: Training institutions for procurators are to follow the relevant provisions in undertaking the task of training procurators.

Article 35: Procurator's applications to resign shall be submitted in writing by themselves, and after approval, they are to be removed from their post in accordance with the legally-prescribed procedures.

Article 36: Dismissed procurators shall be removed them from their post in accordance with the legally-prescribed procedures.

Dismissal of procurators shall be by decision in accordance with the scope of management authority. Dismissal decisions shall give written notice to the procurator being dismissed and lay out the reason and basis for the decision.

Article 37: For two years after procurators leave the people's procuratorates, they must not serve as an agent ad litem or defender as a lawyer for two years;

After procurators leave the people's procuratorates they must not serve as an agent ad litem or defender in a case handled by the procuratorate where they served, except where they are a party's guardian or being the agent ad litem or defender for a close relative.

After procurators are dismissed, they must not serve as an agent ad litem or defender, except where they are a party's guardian or being the agent ad litem or defender for a close relative.

Chapter VI: Evaluation, Reward and Punishment of Procurators

Article 38: People's procuratorates are to establish procuratorate evaluation and review committees responsible for evaluation and review work in that procuratorates.

Article 39: Procurator Evaluation and Review committees are to have 5-9 members. The Procurator Review and Evaluation Committee is to be headed by the chief procurator for that procuratorate.

Article 40:Evaluation of procurators shall be comprehensive, objective, and fair, and combine implementation of regular and annual evaluations.

Article 41: Content of procurators evaluations includes: Actual procurator work performance, professional ethics, professional skill level, ability to work, and work style. Actual procurator work performance is to be the key consideration.

Article 42: The annual evaluation results are divided into four grades: outstanding, competent, basic competence, and incompetent. Evaluation results are the basis for adjusting procurators' rank and salary, and for rewards and punishments, training, removal, demotion,or dismissal.

Article 43: Procurators are to be personally notified in writing of evaluation results. If procurators have objections to the evaluation outcomes, they may request a review.

Article 44: Procurators having notable achievements or contributions in trial work, or have other outstanding deeds, are to be rewarded in accordance with the relevant provisions.

Article 45: Where procurators have any of the following performances, they shall be given rewards;

(1) outstanding achievements in judicial fairness;

(2) outstanding achievements in summarizing procurator practice experience, playing a guiding role for procurator work;

(3) making notable achievements and contributions in handling major cases, handling emergencies, and undertaking important special work items;

(4) Having a recommendation for procuratorial work reforms accepted, with noticeable effect;

(5) put forward procuratorial recommendations that have been adopted or carrying out legal publicity to resolve various kinds of disputes with noticeable results;

(6) other achievements.

Rewards for procurators are to be handled in accordance with relevant provisions.

Article 46: Where procurators have any of the circumstances, they shall be given sanctions; and where a crime is constituted, criminal responsibility is pursued in accordance with law:

(1) embezzling or taking bribes, acting for personal gain, extortion of confessions by torture;

(2) Concealing, fabricating, altering, or intentionally destroying evidence;

(3) Leaking state secrets or procuratorial work secrets;

(4) Intentionally violating laws or regulations;

(5) Causing cases error and serious consequences through gross negligence;

(6) Delaying handling cases and putting off work;

(7) Using their authority to seek personal gain for themselves or others;

(8) taking part-time positions in enterprises or other for-profit organizations or engaging in for-profit business activities in violation of relevant provisions;

(9) Accepting improper benefits from parties or their agents, or meeting with parties or their agents in violation of relevant provisions;

(10) other conduct in violation of discipline or law.

Sanctions for procurators are to be handled in accordance with relevant provisions.

Article 47: Where procurators violate discipline and law making it inappropriate for them to continue performing their duties in a case that is already opened and investigation has begun, the performance of their duties may be suspended in accordance with the scope of authority and procedures provided.

Article 48: The Supreme People's Procuratorate and provinces, autonomous regions, and directly governed municipalities, are to establish procuratorial disciplinary committees responsible for reviewing and determining from a professional perspective whether procurators have conduct in violation of items 4, 5, or 6 of article 46 of this Law that violates procuratorial duties, and submit an opinion that an intentional violation of duties is constituted, that there was gross negligence, that there is ordinary negligence, or that there is no violation; and the people's procuratorates are to make a decision on sanctions in accordance with relevant provisions, and make a relevant disposition.

Members of the Procuratorial disciplinary committees shall be composed of procurator representatives and other representatives enganged in legal professions and relevant areas, of whom not less than half shall be procurator representatives.

The routine work of the Supreme People's Procuratorate's Procuratorial Disciplinary Committee and provincial level procuratorial disciplinary committees is to be done by a functional department set up internally.

Article 49: When the procuratorial disciplinary committee hears matters on sanctioning, the procurator party has the right to apply for the recusal of relevant personnel, and the right to make statements, present evidence, and offer defenses.

Article 50:The review opinions issued by the procuratorial disciplinary committee shall be sent to the procurator party, and where the procurator party has objections to the review opinion, they may submit them to the disciplinary committee, and the disciplinary committee shall conduct a review of the objection and its reasoning and make a decision.

Article 51:The specific procedures for the procuratorial disciplinary committee hearing matters on sanctions are to be formulated by the Supreme People's Procuratorate in consultation with the relevant departments.

Chapter VII: Procurator Professional Safeguards

Article 52: People's procuratorates are to establish a committee for the protection of procurators' rights and interest, ensuring procurator's lawful performance of duties, and preserving the lawful rights and interests of procurators.

Article 53: Except in the following situations, procurators must not be transferred out of procuratorate operation posts:

(1) Where recusal from a position is required by provisions;

(2) To carry out professional exchanges in accordance with provisions;

(3) where organizational adjustments, revocation, mergers, or reduction in personnel allotments require work adjustments;

(4) Where they are unsuited to work in a procuratore operations post due to violations of discipline or law;

(5) Other situations provided by law.

Article 54: Units and individuals must not request that procurators engage in tasks beyond the scope of their duties.

Administrative organs, social groups, and individuals must not interfere in procurators' lawful handling of cases. Procurators have the right to refuse any conduct that interferes with handling cases, and to fully and truthfully record it; where there are violations of discipline or law, the relevant organs are to pursue the relevant responsible persons or perpetrators based on the severity of the circumstances.

Article 55: The professional dignity and physical safety of procurators receive the protection of law. Procurators and their close relatives must not be retaliated against by any units or individual. Unlawful and criminal acts of retaliation by making false charges, insults and defamation, violent encroachment, threats and intimidation, or provocation or harassment against procuratorial personnel and their close relatives shall be severely punished in accordance with law.

Article 56: Where procurators are falsely reported, maliciously accused, or demeaned and defamed, causing harm to their reputation, the people's procuratorates shall join with the relevant departments to promptly clarify the facts, dispel negative impacts and pursue the responsibility of relevant departments and individuals.

Article 57:Where as a result of lawfully performing their duties, procurators or their close relatives face physical danger, the people's procuratorates and public security organs shall employ personal protections for the procurators and their close families.

Article 58:A wage system appropriate to procurators and their duties is to be carried out for procurators, in which they enjoy the salary and welfare benefits provided by the state in accordance with their rank, and an adjustment mechanism for salary increases in step with those for civil servants is to be established.

A salary system for procurators based on the characteristics of procurator work is to be provided for elsewhere by the state.

Article 59: A system of regular wage increases is implemented for procurators. Those designated as excellent or competent through the annual performance evaluations may have their salary levels raised

Article 60: Procurators enjoy allowances, subsidies, bonuses, insurance and welfare benefits as prescribed by the state.

Article 61:Where procurators are disabled, they enjoy disability benefits as provided for by the state. Where a procurator is killed or dies in service, their relatives enjoy the bereavement benefits and preferential treatment as provided for by the state.

Article 62:The retirement system for procurators is to be provided for separately and based on the characteristics of trial work.

Article 63:After procurators retire, they enjoy pension and other benefits as provided for by the state.

Article 64: Where state organs or their staff have conduct violating the rights of procurators provided for in article 11 of this Law, procurators have the right to make an accusation.

Article 65: Where there are errors in procuratorial sanctions or personnel dispositions, they shall be promptly corrected; where it causes reputational harm, the reputation shall be restored, the impact eliminated, and formal apologies made; where economic harm is caused, compensation shall be made. The personnel directly responsible for retaliation shall be pursued for responsibility in accordance with law.

 

Chapter VIII: Supplementary Provisions

Article 66:The state implements a uniform legal professional qualification examination system for new procurators that is organized and implemented by relevant departments judicial administration under the State Council through discussion with the Supreme People's procuratorate and other relevant departments.

Article 67:Procurators' assistants of people's procuratorates are responsible for procuratorial support matters, such as the inspection of case materials and drafting of legal documents, under the guidance of procurators.

The people's procuratorates shall strengthen the establishment of a corps of procutors' assistants, selecting talent for procurators.

Article 68:Procurators a civil servants that implement a separate management job sequence. Where this Law has provisions on the system of procurators' rights, obligations, and management, apply the provisions of this law; and where this Law is silent, apply the relevant laws and regulations on the management of civil servants.

Article 69: This Law is to take effect on XX/XX/XXXX

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