Draft Revision of Procuratorates Organic Law Leaked

On Saturday, the WeChat public account “刑法库” published what it claims to be the draft revision (“Draft”) of the People’s Procuratorate Organic Law (“Law”)—along with an accompanying explanation prepared by the NPC Internal and Judicial Affairs Committee (“Committee”)—that is due to be reviewed by the NPCSC this week. For various reasons not elaborated here, we believe the Draft is authentic.

The Draft is dated August 18, 2017, when the Council of Chairmen convened to set the dates and agenda for the NPCSC session this week. Because draft laws aren’t subject to revision between a Council of Chairmen meeting and the ensuing NPCSC session, the version of the draft revision we expect the NPCSC to release after this week’s session should be identical to the Draft.

Here is the Draft in PDF, with the explanation attached. An English translation is not yet available, but we’ll summarize the changes made by the Draft—which are not necessarily new in practice—in bullet points below. Please refer to this post for background information on the ongoing process to revise the Law.

Guiding Principles for Drafting

According to the explanation, the drafting process was guided by the following four principles:

1. The Draft should preserve the basic legal schemes and provisions prescribed by the current Law;
2. The Draft should reflect positive results from the last several rounds of judicial reform;
3. The relationship between the Draft and other relevant laws (such as procedural laws and the Procurators Law) must be properly handled;
4. Issues over which a consensus hasn’t been reached should be either stipulated in broad strokes or left out entirely.

You will therefore notice in the summary below that the Draft:

1. Memorializes many practices instituted since the Law’s enactment in 1979;
2. Incorporates certain provisions of laws enacted or revised after 1979 that are within the scope of the Law, while citing others with respect to subjects outside the scope (e.g., the duties, responsibilities, and management of procurators);
3. Fails to codify or provide in details reforms that haven’t been thoroughly tested in practice or that are still controversial.

Expect the NPCSC members to engage in heated debate over the Draft, particularly because of its many limitations attributable to principle #4. Because the Draft was not released through official channels, there hasn’t been much reaction on the internet or in the press, particularly from legal scholars. But from what we have seen, many procurators and lawyers have already expressed dissatisfaction with the Draft. All of this might delay the eventual passage of the draft revision.

Summary

In General

• The Draft contains six chapters with 60 articles, compared to the current Law’s 28 articles in three chapters.
• Language reminiscent of the Cultural Revolution era, such as references to “counter-revolutionaries,” is removed.
• The exercise of procuratorial power should follow the principles of equal application of law to all, fairness, participation by the people (or “司法民主” in Chinese), and transparency. (Art. 6–9)

Organization of Procuratorates

• Local procuratorates are explicitly divided into three levels (mirroring the organization of courts): provincial-level, municipal-level, and basic-level. (Art. 12 & 17–19)
• Cross-administrative division procuratorates may be established pursuant to NPCSC decisions to handle cross-regional cases—a reform proposal in the Four Plenum Decision. (Art. 21)
• Subject to higher-level procuratorates’ and other relevant organs’ approval, procuratorates are authorized to establish stationed offices at places such as prisons to exercise delegated powers. (Art. 23)
• Procuratorates may establish procuratorial auxiliary bodies (检察辅助机构) and judicial administrative management bodies (司法行政管理机构) as necessary. They may also invite “social forces” to participate in such work. (This article seems to allow for possible future separation of judicial administrative management powers from the procuratorates, another reform proposal found in the Fourth Plenum Decision.) (Art. 25)

Procuratorates’ Authorities

• Article 13 expands the list of procuratorates’ authorities provided in the current Law to include those unrelated to criminal prosecution, including:
  1. Conducting legal supervision (法律监督) of criminal, civil, and administrative litigation;
  2. Conducting legal supervision of the enforcement of effective criminal, civil, and administrative ruling, verdicts, and other legal documents;
  3. Conducting legal supervision of prisons, community correction institutions, and detention centers; and
  4. Filing public interest lawsuits (which is recently authorized by amendments to procedural laws).
• Notably, the Draft still grants the procuratorates investigatory powers in “criminal cases they handle in accordance with provisions of law”—mainly the Criminal Procedure Law and the yet-to-be-enacted Supervision Law, according to the explanation—contrary to what the ongoing supervision system reform seems to suggest. (The linked NPCSC decision leaves the procuratorates in pilot regions with only supplementary investigatory power (补充侦查权)—to be used after the police submit a case for indictment.) (Art. 13, item 1)
• Article 16 lists the Supreme People’s Procuratorate’s (SPP) authorities by reciting the relevant provisions from other laws, including the power to submit bills, to issue judicial interpretations, and to supervise the Supreme People’s Court’s review of death penalty cases, and so forth. Article 33 suggests that the SPP is also authorized to issue guiding cases.

Personnel

• Chief procurators (检察长) must have legal expertise and experience in the legal profession. Deputy chief procurators and other members of procuratorial committees must be chosen from procurators. (Art. 38)
• Procurators, procuratorial auxiliary personnel, and judicial administration personnel are to be managed separately. (Art. 44)
• A procurator quota system (员额制) shall be implemented. The quota of procurators for a single procuratorate is determined according to factors such as the level of the procuratorate, the number of cases, as well as local economic and social development and population. (Art. 45)
• Novice procurators must be evaluated professionally by procurator selection committees. Procurators in upper-level procuratorates shall be generally selected from those in lower-level procuratorates based on merit. (Art. 46)
• Procurator assistants (检察官助理) review litigation materials, draft legal documents, and provide other forms of assistance under procurators’ supervision. They may be appointed procurators in accordance with the regular procurator-appointment procedure. (Art. 47).
• Clerks (书记员) perform case-recording and other supportive work. (Art. 48)

Case-Handling Organizations (办案组织)

• A new chapter is added to provide for the composition, powers, responsibilities, and procedures of various types of case-handling organizations, such as case-handling groups composed of two or more procurators, and procuratorial committees. (Ch. III)
• A case may be assigned to either a single procurator or two or more procurators as a case-handling group. Each group selects a head procurator (主任检察官). (Art. 30)
• Chief procurators decide on major case-handling matters, but may delegate certain powers to rank-and-file procurators, including the authority to sign on legal documents. (We didn’t check, but this article might require the Criminal Procedure Law to be correspondingly amended.) (Art. 31)
• When the chief procurator disagrees with a decision of the procuratorial committee, if it relates to a case, he or she may ask the upper-level procuratorate to decide; or if it concerns a “major issue” (重大事项), he or she may request that the upper-level procuratorate or the standing committee of the people’s congress at the same level make a decision. (Art. 35)
• Head procurators may request that procuratorial committees discuss and decide on major cases and other major issues. Procurators should follow such decisions. (Art. 36)
• Procurators are responsible for case-related decisions made within the scope of their duties and responsibilities. Chief procurators and procuratorial committees are responsible for case-related decisions they each make. (Art. 37)

Job Security

• Procuratorates have the right to refuse to engage in activities that go against (not those that are outside) their statutory duties and responsibilities. (Art. 51)
• Procurators are not subject to transfer, demotion, removal, dismissal, or disciplinary actions, absent statutorily prescribed circumstances and without following statutorily prescribed procedures. (Art. 54)
• Post orders (职务序列) and salary systems separate from those for other public servants are to be established for procurators. (Art. 55)

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