Promulgation Date: 2019-4-23 Title: 中华人民共和国检察官法 Document Number: Fafa (2020) #38 Expiration date: Promulgating Entities:Standing Committee of the National People's Congress Source of text: http://www.npc.gov.cn/npc/xinwen/2019-04/23/content_2086113.htm
Article 1: This law is formulated on the basis of the constitution so as to comprehensively advance the establishment of a high-caliber procuratorial corps, to strengthen the management and oversight of procurators, to protect procurators' lawful rights and interests, to ensure that the people's courts lawfully, independently, and justly exercise the procuratorial power; to ensure procurators' performance of their duties in accordance with law; and to ensure judicial fairness.
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, maintain social fairness and justice, 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 and the laws as their measure, and maintain an objective and fair posture.
Procurators handling criminal cases shall strictly uphold the principle of nullum crimen sine lege, respect and protect human rights, and should both prosecute crimes and also ensure that the not-guilty are not pursued for criminal responsibility.
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.
Article 7: Procurators duties are:
(1) Investigate criminal cases that the law provides are to be directly accepted by the people's procuratorate;
(2) Conducting review for approval of arrest and review for prosecution in criminal cases, and representing the state in conducting public prosecutions;
(3) Carrying out public interest litigation work;
(4) Carrying out efforts to oversee criminal, civil, and administrative litigation cases;
(5) Other duties provided 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 perform the following obligations:
(1) Strictly follow the Constitution and Laws.
(2) Handle cases impartially and never twisting the law for personal gain;
(3) Safeguard the procedural rights of parties and other litigation participants in accordance with law.
(4) Preserve the national interests and societal public interests, and preserve the lawful rights and interests of individuals and organizations;
(5) Protect state secrets and procuratorial work secrets, and keep commercial secrets and personal private information learned of in performing one's duties confidential.
(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.
Article 12: Those serving as procurators must possess the following capacities:
(1) Have citizenship of the People's Republic of China;
(2) Uphold the Constitution of the People's Republic of China, and uphold the leadership of the Communist Party of China and the socialist system;
(3) Have good political and professional character, and moral fiber;
(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.
(7) Procurators serving their first post shall obtain legal professional credentials through the National Unified Legal Professional Qualification Examination.
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, or who have had been removed from an arbitration commission;
(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, 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.
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 educators or researchers.
In addition to having the requirements for serving as a procurators, lawyers participating in open selection shall have at least five years in actual practice, have rich practice experience, and have a good reputation; legal educators and researchers participating in the open selection shall have an intermediate level title or higher and have been engaged in teaching or research for at least 5 years, with outstanding capacity for research and corresponding 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 people's procuratorates. Judges of higher level people's procuratorate are usually to be selected incrementally up through the levels; procurators of the Supreme People's Procuratorate and provincial level people's procuratorates may be selected from two levels below of people's procuratorate. Procurators participating in higher level people's procuratorates' selection shall have served a definite number of years in the lower level people's procuratorate, and have work experience corresponding to the new post.
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 Procurator-General of the Supreme People’s Procuratorate is elected and removed by the National People’s Congress; its Deputy Procurators-General, members of the procuratorial committee and procuratorate personnel are appointed and removed by request of Procurator-General 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 chief procurators, deputy chief procurators, and procuratorial committee members, and procuratorate personnel of remote procuratorates established by provincial and districted-cities' people's procuratorate are appointed or removed by request of the remote 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: Where procurators have any of the following circumstances, an application shall be made to request their removal from their judicial post in accordance with law:
(1) Where they have forfeited citizenship of the People's Republic of China;
(2) Where they have been transferred out of the people's procuratorate where they held a position;
(3) Where changes in their position do not require them to retain the position of procurator, or they personally request to be removed from a position as procurator and it is approved;
(4) Where they are evaluated as 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 at the same level to 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, must not concurrently serve in a position at an administrative organ, supervision commission, or adjudication organ; must not concurrently serve at an enterprise or other for-profit organization, or public institution; 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 procurator of the same people's procuratorate.
(3) Procurators in the same operational department;
(4) the chief procurator or deputy chief procurator in people's procuratorates at adjacent levels.
Article 25: Where procurators' spouses, parents, or children have any 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.
Article 26: A personnel ratio system is implemented for management of 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 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: Procurators implement a separate job management sequence.
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 Procurator-General 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 orientation training system is to be implement for new procurators.
Article 32: Political, theoretical, and operational training for procurators shall be conducted in a planned manner.
Procurators' training shall connect theory with practice, teach according to needs, and stress 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: Procurators' applications to quit shall be submitted personally and in writing, after approval, they are to be removed from their post in accordance with 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.
Article 38: As necessary for work, and upon appointment or approval by a unit, procurators may assist in carrying out practice education and research in schools of higher learning and research centers, and are to comply with relevant state provisions.
Article 39:People's procuratorates are to set up a Procurator Evaluation and Review Committees responsible for the evaluation of that court's judges.
Article 40: 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 41: The evaluation of procurators shall be comprehensive, objective and just, and should be combined with ordinary evaluations and annual evaluations.
Article 42: The content of procuratorial evaluations is to include: Actual trial work performance, professional ethics, professional skill level, ability to work, and work style. Actual procurator work performance is to be the key consideration.
Article 43: Annual evaluation results are to be divided into four grades: outstanding, competent, basic competence, and incompetent.
The evaluation results are to be basis for adjusting procurator's rank, salary, and for procuratorial rewards, removal, termination, or dismissal.
Article 44:Procurators are to be informed of their evaluation results in writing. If procurators have objections to the evaluation outcomes, they may request a review.
Article 45:Procurators having notable achievements or contributions in trial work, or have other outstanding deeds, are to be given rewards in accordance with the relevant provisions.
Article 46: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 47: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) Corruption or taking bribes, twisting the law for personal gain, or extortion of confessions by torture;
(2) Concealing, fabricating, altering, or intentionally destroying evidence or case materials;
(3) Leaking state secrets, procuratorial work secrets, commercial secrets, or individuals' private information;
(4) Intentionally violating legal provisions in handling a case;
(5) Causing case 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) Accepting benefits from parties or their agents, or meeting with parties or their agents in violation of relevant provisions;
(9) Violating relevant provisions by engaging in or participating in for-profit activities or concurrently holding a position in enterprises or other for-profit organizations;
(10) having other conduct in violation of discipline or law.
Sanctions for procurators are to be handled in accordance with relevant provisions.
Article 48:Where procurators are suspected of violating discipline or law, and a case inquiry and investigation have begun, and it is inappropriate for them to continue performing their duties, the performance of their duties is to be suspended in accordance with the scope of management authority and procedures provided.
Article 49: The Supreme People's Procuratorate and provinces, autonomous regions, and directly governed municipalities, are to establish procurator disciplinary committees responsible for reviewing and determining from a professional perspective whether procurators have conduct in violation of items 4 or 5 of article 47 of this Law that violates trial 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. After the procurator disciplinary committees submit review opinions, the people's procuratorates are to decide 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 procurator Disciplinary Committee and provincial level procuratorial disciplinary committees is to be done by a functional department set up internally.
Article 50:When procurator disciplinary committees deliberate discipline matters, the procuratorate party has the right to apply for members' recusal, and the rights to make statements, present evidence, and give defenses.
Article 51:The review opinions issued by the procurator disciplinary committees shall be sent to the procurator party. Where the procurator party has objections to the review opinions, 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 52: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.
Article 53:People's procuratorates are to establish a committee for the protection of procurators' rights and interest, preserving procurators' lawful rights and interests and ensuring procurators' lawful performance of duties.
Article 54: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 55:Units and individuals must not request that procurators engage in tasks beyond the scope of their duties.
Procurators have the right to refuse any conduct that interferes with handling cases, and to fully and truthfully record and report 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 56: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 57:Where procurators are falsely reported, maliciously accused, or demeaned and defamed, causing harm to their reputation due to lawful performance of their duties, 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 58: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 59:A wage system appropriate for procurators and their duties is to be carried out for procurators, in which they enjoy the salary provided by the state in accordance with their rank, and a mechanism for salaries adjustments 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 60: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 61:Procurators enjoy allowances, subsidies, bonuses, insurance and welfare benefits as prescribed by the state.
Article 62: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 63:The retirement system for procurators is to be provided for separately and based on the characteristics of procuratorial work.
Article 64:After procurators retire, they enjoy pension and other benefits as provided for by the state.
Article 65: 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 66:Where there are mistakes in sanctioning or personnel handling of procurators, they shall be promptly corrected; where it causes reputational harms, their reputation shall be restored, the impact eliminated, and a formal apology given; where it causes economic harms, compensation shall be made. The personnel directly responsible for retaliation shall be pursued for responsibility in accordance with law.
Article 67: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 68: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 69:Where this Law already has provisions regarding the rights and interests, obligations and management systems for procurators, apply the provisions of this Law; where this law has no provisions, apply the relevant laws and regulations on management of civil servants.
Article 70:This Law takes effect October 1, 2019.