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;
· Be in good health;
· 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:
· Resignation approved;
· Dismissed by procuratorial bodies;
· Removal of name from roll;
· Removal from office as a disciplinary penalty;
· Removal from position;
· Criminally penalized;
· 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.
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.