Chinese Title: 单位给涉嫌犯罪下属出公函请求轻判事件时有发生 专家称
"Solicitation through Official Letter""Interferes with judicial verdicts and prosecution should be legislated
稿件来源: Legal Daily
Published: 2013 -06-14
Vice President of China University of Political Science and Law; Ma Huaide
Peking University Law School Professor ; Jiang Mingan
Legal Daily Reporter; Yu Fei
Mayang County in Hunan Province's cultural broadcast goup and the Mayang County Office of comprehensive cultural market law enforcement, separately called team members together to "unify thinking" and research ways that they could assist for two arrested corrupt officials taken from the work units, and to help offer an explanation on their behalf. Afterwards, they then sent official letters to the court handling the case, requesting leniency from the court for reasons such as saying that the corrupt officials involved were of "good character." On June 8, "Legal Daily" Viewpoint Edition reported the matter under the headline of "Two work units in Mayang issue official letters pleading for corrupt officials."
The report of the 18th party congress put forward "ensuring that judicial and procuratorial organs independently and fairly exercise their powers to adjudicate and prosecute." However, incidents of 'solicitation by official letter' such as that in Mayang are anything but unique. Does such conduct interfere with the courts' power to independently and justly exercise judicial power in accordance with law? Legal Daily reporter discussed this topic with Vice President of the China University of Political Science and :aw, Ma Huaide, and , Peking University School of Law's Professor Jiang Mingan.
Work Units cannot comment directly submit comments to the court
Reporter: Today, Hunan Province's Mayang County People's Court has issued a first-instance judgment in this case of embezzlement of public funds by Mr. Mo, former head of the Bureau of Cultural Affairs Disciplinary Inspection Committee and former Cultural Market Inspection group leader, Mr. Shi. Local sources say that during the hearing of the case, the two defendants' work units, the cultural broadcast bureau and cultural marketplace comprehensive law enforcement bureau issued for official letters to intercede on behalf of their corrupt employees.
In recent days, "Legal Daily" reporter have discovered that similar situations have occurred in Hunan's Zhuzhou City, Xiangyin County and other places.. How should we view a work unit's writing official letters to intercede on behalf of an employee suspected of committing a crime?
Ma Huaide: When the procuratorate is handling the case or the the people's court is trying it, the work place can only as a witness, providing evidence on whether or not the suspect committed a crime and on the severity of the crime, in accordance with the judicial organs' requests. If a work unit goes beyond the scope witness testimony and sends an official letter to the court with sentencing opinions, this kind of practice is undesirable. A workplace has no right or obligation to submit opinions on the verdict or sentencing.
Jiang Mingan: It's improper for a work unit to submit opinions directly to the court. When the procuratorate is investigating, a work unit may provide materials to the procuratorate. But, after the case enters the judgment phase, a work unit should not directly submit opinions to the court. If the defendant has truly made a contribution, the work unit may give relevant materials to the defense attorney to be presented as defense evidence in court, but should not directly give them to the court.
Solicitous Official Letter can influence the courts' judgment
Reporter: When administrative organs directly submit an official letter to submit comments and intervene, does it have an impact on the courts fair and lawful exercise of its power to adjudicate.
Ma Huaide: Don't rule out situations were what seems like a comment or solicitation is actually a type of pressure, this can in some sense influence courts' rulings
Jiang Mingan: Administrative work units' issuance of official letters to the courts might influence the court's fair and independent exercise of its adjudication power. Moreover, we need to carefully analyze the official letter that the work unit issued, if the information in the letter isn't true, then there is suspicion of perjury, and the leaders of the unit should be pursued for criminal responsibility.
Reporter: The 18th Party Congress put forward ensuring the adjudicatory and procuratorial organs power to independently and fairly judge and prosecute in accordance with law. Also ,Raising high ranking cadres rule of law mentality and deepening reform of rule of law methods, promoting development, conflict resolution, and the capacity for preserving social stability. All groups and individuals must not exceed the privileges of the constitution and law, and is absolutely impermissible to to substitute talk for laws, to use power to suppress the law, and to pervert to law for selfish ends. Against this background, why do some local administrative organs still behave in such a way as to influence the independent and fair exercise of courts' power to adjudicate?
Ma Huaide: This reflects the superficial or incorrect understanding that some units have of the judicial judgment system. A few work units feel that opinions like an employees regular good performance and past contributions are allowed to influence a court's ruling, which is an incorrect understanding. Especially in a society that respects the rule of law and respect judicial rulings, this kind of thinking is truly improper.
Jiang Mingan: This kind of phenomenon reflects individual work units and individual leaders' lack of a rule of law conception, and their thinking that there will be no need to bear the consequences for this type of action.
Accountability should be sought for issuance of solicitous official letters
Reporter: In that case, what kind of accountability should be sought when administrative organs do issue official letters soliciting the courts?
Jiang Mingan: Currently. the question of seeking accountability is still imperfect, and this is another reason that some administrative organs think they won't need to bear responsibility. Regardless of whether it's the Civil Servant's Law or the Disciplinary Regulations for Officials in Civil Service Organs, there are no articles providing for accountability for influencing courts' independent exercise of their adjudication power.
Just take the Regulation on the Discipline of Civil Servants in Administrative Organs, of the 8 types of conduct provided by its ninth article, only "violating regulations by not recusing oneself where they should recuse themselves, so as to influence the fairness of performing an official function" comes close, but is a real stretch; of the five type of conduct provided in article 25, only "obstructing official functions or violating regulations to interfere with the performance of an official function" is relatively close to influencing the court's independent exercise of adjudication power.
Therefore, I propose to amend the regulation on the discipline of civil servants in administrative organs or the Civil Service Act, to clarify that civil servants in administrative organs influencing the courts' independent exercise of judicial power should be held accountable; and suggest that the Supreme People's Court issue an judicial interpretation , clarifying that the courts may refuse to accept solicitous official letters issued by the administrative organs. At the same time, courts may report administrative organs' issuance of official letters to the disciplinary commissions and provide a judicial opinion to pursue accountability from the leaders.