Outline of the Procuratorate Reform Plan

by Jeremy Daum | 2015/02/27 4:55 AM

Less attention is paid to China’s procuratorate than to its courts. This may because it has functions that don’t directly correspond to any western institution and is less easily understood. Far from only being the organ for public prosecutions in criminal cases, the procuratorate is also charged with powers of legal supervision and correction of other government bodies’ actions. Even in civil and administrative cases where it was not a party, procuratorates can exercise their supervisory powers over the courts to ‘appeal’ a decision it believes was in error. The procuratorate is now also able to initiate litigation on behalf of the public interest in areas such as environmental protection and consumer rights. In criminal cases, where China’s conviction rate tops 99%, the prosecutions’ decision to indict is essentially determinative, and the procuratorate is the first and most effective check on police power.

So, while China’s new court reform plan is being carefully scrutinized for signs of waning or waxing judicial independence and court oversight of government action, there is much less discussion of the procuratorate’s own plan. The outline below gives an overview of the key tasks laid out in that plan. Many of the items only highlight important directions for reform or areas where procedures need to be clarified, and have thus been listed only as a subject area. Some items, however, like those on anti-corruption work, in which procurators are the principle investigative organ as well as prosecution, involve many specific items- like a call for anti-corruption legislation, and a call for increased international cooperation.

While necessarily incomplete, the outline attempts to pull out and emphasize what is most interesting in each of 42 key tasks laid out by the plan following the overall organization of the plan into the following areas:

Institutional Mechanisms for Independent and Fair Exercise

of Procuratorate Powers

  1. Management of personnel at the provincial level; including appointments and removal.
  2. Management of assets at the provincial level
  3. Separation of administrative and procuratorate functions.
  4. Protection for procurators performing official duties:
    • No transfer, firing, demotion or punishments except for reasons provided for in law.
    • Improve reporting systems and remedies for procurators improperly punished.
    • Create a procurator discipline committee system
  5. Exploring Cross-administrative region procuratorates for special cases.
  6. Bring procuratorates for department and enterprise management into the national management system.
  7. Record keeping and accountability systems for leadership interference with judicial activities.

 Personnel management system reform

  1. Categorical Personnel Management
    • 3 categories: procurators, procurator assistant, administrative
    • Fix numbers of each and ratios of personnel types.
  2. Titles and salary reforms
  3. Entry and selection systems
    • Increase the requirements for age and years of legal experience required for new procurators.
    • Recruitment to occur at the provincial level
    • Establishment of procurator selection committees
    • New procurators begin at basic level procuratorates, and higher level procuratorates should generally hire up from the ranks of lower levels.
    • Establish a system for qualified lawyers and legal scholars to be selected as procurators
    • Create a path for military procurators to transfer to local procuratorates when entering civilian life.
    • Increased communication and joint recruitment with academic organizations
  4. Procurators oaths to the Constitution on taking office.
  5. Improve management of salary and benefits, adjust personnel ratios
  6. Professional Education to increase professional capacity, improve professional  character and instill  ‘faith in the law’

Operating Mechanisms for the Procuratorial Power

  1. Case handling responsibility systems
    • Principle procurator to have responsibility
    • Delineate responsibilities of principle procurator, chief procurator, deputy-chief procurator and prosecution committee.
  2. Organization of internal procuratorate structures
    • Clarify roles and interactions of internal institutions
    • Standards and procedures for remote (off-site) procuratorate offices.
  3. Case management
    • Upgrade the procuratorate’s integrated response system
    • Create better information sharing platforms within the procuratorate, increasing standardization and efficiency. 

Anti-corruption Measures

  1. Legal mechanisms for fighting corruption
    • Promote anti-corruption legislation
    • Include giving ‘property or property interests’ within definition of bribery.
    • Increase rewards for those reporting corruption
  2. Investigation of crimes abusing public office (in which prosecutors are the front-line investigators).
    • Improve systems for accepting, handling and responding to leads.
    • Create cross-administrative region jurisdiction for crimes abusing public office.
  3. Increase capacity to investigate crimes abusing public office
    • Improve data creation and management [informatization]
    • Improve communicationwith , and assistance from, other departments
    • Strengthen international cooperation ties.
  4. Increase anti-corruption in the construction industry. 

Legal Supervision Powers

  1. Supervision of Investigations
    • Have mechanisms for police to get comments of procurators in difficult cases [allowing procurators to supervise police work at an earlier stage, rather than at the end of the lengthy investigation period]
    • Oversight mechanisms for activities at street level of policing.
  2. Supervision of Criminal Trials, and Review of Death Sentences including procuratorate appeals work.
  3. Evidence:
    1. Improve rules and standards for gathering, preserving and presenting evidence
    2. Have witnesses and forensic evaluators apear in court
    3. Clarify the scope of illegal evidenceto be excluded before trial by the procuratorate.
  4. Prevention and Correction Wrongful Cases
    • Improve oversight of detention and other measures that limit personal freedom, so as to stop abuse.
    • Record all interrogations in crimes abusing public office (corruption cases)
    • Work towards recording all interrogations and important information gathering activities.
    • Protect litigation participants’ rights to information and other procedural rights.
    • Create remedies for parties whose procedural rights are infringed.
    • Accountability procedures for wrongful cases.
  5. Oversight of detention and enforcement of criminal penalties.
    • Increase supervision on the necessity of detention [ release on guarantee or residential surveillance are options where detention before trial is not necessary, but detention rates remain high]
    • Supervise decisions and enforcement of residential surveillance in designated locations [often feared covert detention].
    • Address responsibility for prolonged or endless detention.
    • Increase oversight of changes to criminal penalties, like commutation, parole etc.
    • Community corrections
    • Increase Supervision of Compulsory medical treatment [involuntary commitment for the mentally ill following a finding that someone is lacking criminal responsibility by virtue of their illness; in which release is proving difficult]
  6. Judicial efficiency
    • More exploration and supervision of expedited criminal procedures.
    • Create discrete track for cases where defendant admits guilt and accepts punishment.
    • Create mechanisms for rapid settlement of jurisdiction disputes.
  7. Supervision of Civil and Administrative Litigation – clarify scope and procedures for supervisory Powers
  8. Oversight of administrative penalties and compulsory measures
    • Provide a legal basis for supervision of administrative compulsory measures
    • Create easier paths for redress for parties that have been unlawfully victimized by administrative compulsory measures.
    • Supervise implementation of administrative measures to correct unlawful conduct.
  9. Explore a legal supervision system for unlawful administrative actions
    • Create a policy for correcting administrative organs illegal acts, or failures to act, discovered during all aspects of normal procuratorate work.
    • Explore scope, methods, procedures etc. for correcting unlawful administrative acts.
  10. Public interest law suits – explore requirements, jurisdiction, etc. for public interest lawsuits by the procuratorate (primarily environmental and consumer rights).
  11. Better connect administrative law enforcement (for minor illegal activity) and criminal justice
    • Improve communication and clarify standards for passing cases to criminal justice, ensuring they are handled correctly
    • Improve information sharing between organizations
  12. Petitioning and litigation
    • Improve handling of petitions
    • Encourage remote or online petitions
    • Steer petitioning related to litigation into the justice system
    • Create systems for finality in handling petitions related to litigation.
    • Explore systems for lawyers to participate as third parties in conflict resolution;
  13. Judicial aid: create systems of judicial financial aid  for injured parties, witnesses, whistleblowers, evaluators and some petitioners,
  14. Case Guidance – improve systems and substance of judicial interpretations and guiding cases. 

Checks on procuratorate power

  1. Prevention of internal interference:
    • Clarify proper pathways for higher level procuratorates instructing lower levels
    • Create a records of internal personnel interfering with active cases and create systems for accountability.
    • Regulate procurators’ relationships with parties, lawyers and intermediaries, preventing acceptance of gifts, or secret meetings; stop power brokering.
    • Work to ban fired procurators from the legal professions for life.
  2. Systems for seizing, freezing assets.
    • Create remedies for parties whose rights are infringed
    • Work to make compulsory enforcement legislation.
  3. Discipline inspections to promote clean governance.
  4. Protect lawyers practice rights by respecting their role and work, and actively clearing obstacles to it.
  5. The people’s supervisor system
    • Clarify the role of people’s supervisors and have the system codified.
    • Expand the scope of cases to include prosecutors’ handling of crimes abusing public office, and compulsory measures such as detention and asset seizure
  6. Transparency and information disclosure:
    • Create new platforms for transparency to share case process information; information on major cases, etc.
    • Allow lawyers to make appointments online [previously phone-tag was a way of avoiding lawyers and thwarting their ability to conduct a defense]
  7. Increase explanation of law and reasoning in legal documents (after dividing out simpler cases)
    • Place effective legal documents on a unified online platform
    • Make a system for appraising the legal explanations in documents.
  8. Systems for public participation in oversight
    • Improve the special prosecutor system
    • Create systems for consulting with persons with expert knowledge relevant to the case (finance, IP, etc.)
    • Institutionalize release of information through the press and improve press relations.
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Jeremy Daum is a Senior Fellow of the Yale Law School Paul Tsai China Center, based in Beijing, with over a decade of experience working in China on collaborative legal reform projects. His principal research focus is criminal procedure law, with a particular emphasis on protections of vulnerable populations such as juveniles and the mentally ill in the criminal justice system, and is also an authority on China’s ‘Social Credit System’. Jeremy has spoken about these issues at universities throughout China and in the U.S.; and has co-authored a book on U.S. Capital Punishment Jurisprudence for Chinese readers. He is also the founder and contributing editor of the collaborative translation and commentary site Chinalawtranslate.com, dedicated to improving mutual understanding between legal professionals in China and abroad.
He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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