The prosecution system refers to the nature, mission and
organizational structure of a country's prosecution apparatus, as
well as the principles for its organization and activities and
working institutions.
According to the Law on the Organization of People's
Procuratorates, the People's Procuratorates are the State's organs
for legal supervision that exercise the power of prosecution. They
are elected by and report to the People's Congress at the same
level.
Organization of Procuratorates
Article 2 of the Law on the Organization of People's Procuratorates
states that procuratorates are set up at the supreme and local
levels; in addition, special procuratorates such as military
procuratorial organs are set up. Such a top-down structure reflects
the pyramid structure of the country's prosecution, in which the
superior leads the subordinate. This is noticeably different from
the court system in which the higher court supervises the lower
court. This centralized system is created to maintain the
consistency of the country's legal structure.
The Supreme People's Procuratorate leads local and special
procuratorates. Local means provincial, autonomous regional and
municipal procuratorates and their branches, as well as
procuratorates at the autonomous prefecture/cities directly under
provincial governments, county, city, autonomous city and urban
district levels. Special procuratorates include military and
railway transportation prosecution. Procuratorates are established
at levels corresponding to those of courts so that cases can be
prosecuted in accordance with legal procedures.
Responsibilities of Procuratorates
According to the Law on the Organization of People's Procuratorates
and other related laws, procuratorates exercise the following
powers:
- Exercise the power of prosecution on cases of treason,
separatism and major crimes seriously hindering the uniform
implementation of the state's policies, laws, writs, administrative
decrees;
- Investigate criminal cases they directly handle;
- Review cases investigated by public security and state security
authorities to decide if arrests, prosecutions are warranted;
supervise the legality of such investigations;
- Initiate public prosecution and support public prosecution for
criminal cases; supervise the legality of trials conducted by
courts;
- Supervise the rulings and judgments on criminal cases and the
legality of activities of jails, detention centers and
reform-through-labor institutions;
- Supervise civil and administrative trials of courts.
Organizational Structure of Procuratorates
Organizationally, procuratorates are composed of procuratorial
committees and other specialized departments.
1.
Procuratorial Committee
The chief prosecutor of a procuratorate oversees the day-to-day
operation of procuratorates. Clause 2, Article 3 of the Law on the
Organization of People's Procuratorates states that People's
Procuratorates at all levels should establish a Procuratorial
Committee and a democratic centralization system should be
implemented. The committee should, under the leadership of the
chief prosecutor, deliberate on major cases and other major issues.
Should the chief prosecutor disagree with the decision of the
majority of the committee members, he or she may refer the issue to
the People's Congress at the same level for adjudication.
2.
Working Body
Internally, working bodies are created within each procuratorate.
These include prosecutors for criminal, economic, disciplinary,
jails, and civil and administrative cases. In particular,
procuratorates have set up anti-corruption bureaus and reporting
centers that fight embezzlement, bribery, dereliction and
infringements of rights through collaboration with the masses.
System of Prosecutors
This system aims at managing prosecutors who, in accordance with
laws, exercise the state power of prosecution at procuratorates. It
consists of rules specifying the responsibilities, rights and
obligations, qualifications, appointments and removals,
examination, training, awards and penalties, salary and
compensation, resignation, and retirement of prosecutors. The
Prosecutors Law was adopted on February 28, 1995 at the 12th
session of the Standing Committee of the Eighth National People's
Congress. That law went into force on July 1, 1995.
1.
Qualifications of Prosecutors
Prosecutors include chief prosecutor and deputy prosecutor of
People's Procuratorates at all levels, members of the Procuratorial
Committee, prosecutors and assistant prosecutors. Prosecutors as a
whole must meet the following qualifications:
- Be a citizen of the People's Republic of China;
- Be at least 23 years of age;
- Support the Constitution of the People's Republic of
China;
- Be in political, professional and moral standing;
- A graduate of law from an institution of higher learning, or a
non-law graduate from an institution of higher learning with
in-depth knowledge of law, with two years of working experience; or
holders of a bachelor's degree in law with a full year of working
experience; those holding a Master's or Ph.D. degree in law are not
subject to the working-experience limit described above.
Those that have been penalized for crimes or have been dismissed
from their public offices cannot be elected judges.
Prosecutors obtain their qualifications in two ways:
- Through qualification examinations. Open examinations are
administered regularly by the Supreme People's Procuratorate to
recruit junior and assistant prosecutors. Chinese citizens with a
three-year college education are eligible for the examination.
Those who have passed the examination and are deemed as being in
good political and ethical standing will be qualified as
prosecutors and awarded a Certificate of Qualifications for
Prosecutor;
- Through training and tests.
Prosecutors and prosecution personnel can be disqualified for any
of the following reasons:
- Dismissed by procuratorial bodies;
- Removal of name from roll;
- Removal from office as a disciplinary penalty;
- Other reasons incompatible with the position of
prosecutor.
2.
System for Appointment and Removal of Prosecutors
The chief prosecutor is elected and removed by the People's
Congress at the same level, but the appointment and removal of
local chief prosecutors have to be reported to the chief prosecutor
of higher procuratorates who, in turn, will submit the appointments
and removals to the Standing Committee of the People's Congress at
the same level for approval.
The appointment and removal of the deputy chief prosecutor, members
of the Procuratorial Committee and prosecutors must be submitted to
the Standing Committee of the People's Congress at the same level,
but the appointment and removal of assistant prosecutors can be
approved by the chief prosecutor.
3.
Promotions, Awards and Penalties of Prosecutors
Prosecutors are promoted in two ways: regular promotions and
selective promotions.
Prosecutors are divided into 12 ranks, with the highest being the
Chief Prosecutor of the Supreme People's Procuratorate, followed by
Grand Prosecutors, Senior Prosecutors and prosecutors (level 2
through 12). The ranking of prosecutors is determined by a range of
factors, including their position, performance, professionalism and
seniority.
Awards are typically a combination of moral and material
incentives. These include public recognition of achievements, Third
Prize, Second Prize, First Prize and the conferring of an honorary
title.
Penalties include warning, a record of demerit in personal files; a
record of a major demerit; demotion; removal from position;
dismissal from office. A removal from position is accompanied by a
lowering of salary and rank; those who have committed a crime will
be prosecuted for their criminal liabilities.
4.
Safeguards for Prosecutors
Prosecutors are protected by law in performing their duties. These
include:
- Professional safeguards: Prosecutors are free from interference
in exercising their judicial powers from any administrative
authorities, social organization or individual; they shall not be
removed, demoted, dismissed or disciplined unless for statutory
reasons and procedures.
- Corporal safeguard: Prosecutors receive legal protection for
their corporal, property and residential safety.
- Salary safeguards: Prosecutors receive remuneration for their
performance of duties and enjoy insurance and other benefits.
- Others: Prosecutors are entitled to powers and working
conditions befitting their performance of duties; they have the
right to resign, petition or accuse.
Working Procedures
These govern the scope of operations and activities for
prosecutors. They include:
1.
Procedures for procuratorates supervising criminal investigations
undertaken by public security (including state security)
authorities.
- Verify and approve arrest warrants. The Constitution provides
that, unless approved or ruled by procuratorates or courts and
executed by public security authorities, citizens are not subject
to arrest;
- Verify criminal cases concluded and transferred by public
security authorities to determine if public prosecution is
warranted.
- Supervise the legality of investigation activties by public
security authorities.
2.
Procedures for prosecutors to directly accept and investigate
cases. According to an order issued by the Supreme People's
Procuratorate in early 1998, 53 types of cases in four categories
are directly handled by procuratorates:
- Embezzlement and bribery as defined in Chapter 8, Criminal
Code, as well as other crimes such as misappropriation of public
funds as defined in other chapters that should be penalized as
those specified in Chapter 8;
- Dereliction of duties as defined in Chapter 9, Criminal Code,
including abuse of power, negligence of duties, perversion of law
in prosecution and adjudication;
- Violation of citizens' corporal rights and democratic rights
committed by government employees, such as illegal detention,
illegal searches and extortion of confessions through torture;
- Other major crimes committed by government employees that
require direct involvement of procuratorates; in such cases,
approval by procuratorates above the provincial level is
needed.
3.
Public prosecution: According to the Criminal Law and criminal
procedure law, except for a few private prosecution cases, most
criminal cases will be publicly prosecuted by People's
Procuratorates to People's Courts that have jurisdiction. Cases
submitted by public security authorities have to be reviewed by
procuratorates without exception and a decision on public
prosecution should be made within a month. For cases of a
substantive and complicated nature, that deadline can be extended
by another half month. Public prosecutions have to be brought to
courts with jurisdiction for cases for which facts have been
verified and evidence is accurate and sufficient and for which
criminal liabilities must be prosecuted.
4.
Judicial supervision - supervision over judicial activities
undertaken by courts in handling civil, criminal and administrative
cases. The appearance of prosecutors in trials of criminal cases
means not just support of public prosecution but also supervision
of the trial proceedings. In addition, prosecutors are empowered to
protest rulings or judgments on criminal cases wrongly passed by
courts.
5.
Supervision on enforcement of criminal rulings and on jails. This
includes:
- Execution death penalty: Members of procuratorates must be
present at executions to supervise proceedings and verify the
identity of the condemned prisoner.
- Penalties carried out at jails and penitentiaries, including
the legality of reduction in sentencing, probation, medical parole,
serving sentence outside prison, and suspension of sentence.
- Legality of activities at detention centers and
reform-through-labor institutions.
