A Guide to Supervision System Reform (Redux)

The NPCSC decided last Saturday to extend “pilot” reforms of the state supervision (or anti-corruption) system nationwide. The decision is nearly identical in substance to the NPCSC’s December 2016 decision to first implement supervision system reforms in Beijing, Shanxi, and Zhejiang. The decision on Saturday again prescribes the composition, duties, and powers of the supervision commissions, and lists the legal provisions that will no longer be enforced across China, effectively repealing them. The contents of the Saturday decision are described below, with additional details.

“Pilot” sites. Mainland China.

Hierarchy. Supervision commissions will be established at each of the three levels of local governments: provincial-level, municipal-level, and county-level. Each supervision commission is responsible to and supervised by its higher-level supervision commission and the people’s congress and its standing committee at the same level.

Composition. Each supervision commission will be composed of a chairperson, several vice-chairpersons and members. The chairperson will be elected by the people’s congress at the same level, while the others will be appointed and/or removed by the standing committee of the people’s congress at the same level at the recommendation of the chairperson.

Relationship to existing institutions. The powers of the following bodies will be transferred to the supervision commissions:

• Within the people’s governments: supervision departments (bureaus) and corruption prevention bureaus;
• Within the people’s procuratorates: departments that investigate corruption, bribery, dereliction of duty, and malfeasance; and those responsible for preventing crimes abusing public office (职务犯罪).

Jurisdiction. The supervision commissions will supervise all persons holding public offices and exercising public powers (行使公权力的公职人员) within the corresponding administrative regions, including:

1. Public servants in Communist Party organs, people’s congresses, administrative organs, political consultative conferences, courts, procuratorates, democratic parties (民主党派), and federations of industry and commerce (工商联); as well as other public servants who are managed with reference to the Civil Servant Law;
2. Personnel who perform public service in organizations that administer public affairs as authorized by laws or regulations or lawfully entrusted by State organs;
3. Managerial personnel in state-owned enterprises;
4. Managerial personnel in State-run educational, scientific research, culture, medical and health, and sports institutions; and
5. Personnel in mass self-government organizations—that is, urban residents’ committees and villagers’ committees—who manage community affairs.

Duties. The supervision commissions will have the duties to supervise, investigate, and punish (处置). More specifically, the duties to:

• Supervise and inspect persons holding public offices (公职人员) in their lawful performance of duties, fair exercise of powers, clean governance, and ethical conduct;
• Investigate and punish those suspected of corruption, bribery, abuse of power, dereliction of duty, power rent-seeking, tunneling (利益输送), playing favoritism, squandering state-owned assets, and other illegal and criminal conduct;
• Transfer those suspected of official crimes to procuratorial organs for prosecution.

Powers. The supervision commissions are authorized to take the following measures when fulfilling their duties: conducting interviews and interrogations, making inquiries and searches, freezing [assets], retrieving [data/evidence], seizing and searching, conducting inquests and inspections, appraising, and detaining (谈话、讯问、询问、查询、冻结、调取、查封、扣押、搜查、勘验检查、鉴定、留置; We welcome better translations.)

Legal provisions suspended. The following legal provisions are suspended nationwide (effectively repealed):

1. Administrative Supervision Law: Its entirety
2. Criminal Procedure Law (translations courtesy of China Law Translate, subject to modifications.)
   • Article 3
     

     . . . . The people’s procuratorates are responsible for . . . investigating cases directly accepted by the procuratorates. . . .

   • Article 18
     

     . . . .
     The people’s procuratorate will file and investigate crimes of bribery and corruption; crimes of dereliction of duty by state workers; crimes of state workers abusing their power to effect an unlawful arrest, the coercion of confessions through torture, retaliation, or illegal searches that violate citizen’s personal rights and crimes that violate citizen’s democratic rights. When it is necessary for the people’s procuratorate to directly accept cases of state workers abusing their authority to carry out other serious crimes, the people’s procuratorate may file and investigate the crime following a decision by a people’s procuratorate of the provincial level or above.
     . . . .

   • Article 148
     

     . . . .
     After filing a case, the people’s procuratorates may adopt technical investigative measures to be carried out by the organ designated in regulations, as is necessary for the investigation of major corruption or bribery cases as well as for crimes of abuse of public office to violate citizen’s personal rights, upon completion of strict procedures.
     With approval, the necessary technical investigative measures may be employed for the pursuit of a fleeing suspect or defendant that has been declared wanted or has been approved or decided to be arrested.

   • Part 2, Chapter II, Section 11
     

     Section 11: Investigation of Cases Directly Accepted by the People’s Procuratorate
     Article 162: The provisions of this Chapter [i.e., Chapter II] apply to investigations in cases directly accepted by the people’s procuratorates.
     Article 163: In cases directly accepted by the people’s procuratorates that meet the requirements of Articles 79 and Article 80, paragraphs 4 and 5, of this law, where arresting or taking the suspect into custody is necessary, the people’s procuratorate shall issue the decision and the public security organs shall implement it.
     Article 164: Persons taken into custody in a case directly accepted by the people’s procuratorate shall be interrogated within 24 hours of having been taken into custody. When it is discovered that a person should not have been taken into custody, they must be immediately released and given a proof of release.
     Article 165: When the people’s procuratorate finds it necessary to arrest a person taken into custody in a case it directly accepted, it shall issue a decision within 14 days. In special circumstances, the time for making an arrest decision may be extended by one to three days. Those who do not need to be arrested shall be immediately released; if continued investigation is necessary and the requirements for release on guarantee pending trial or residential surveillance are met, they may be released on guarantee or put under residential surveillance.
     Article 166: In cases where the people’s procuratorate has completed an investigation, it shall issue a decision to prosecute, not prosecute, or withdraw the case.

3. People’s Procuratorate Organic Law
   • Article 5, item 2
     

     The people’s procuratorates exercise the following powers:
     . . . .
     (2) Investigating criminal cases they directly accept;
     . . . .

4. Procurators Law
   • Article 6, item 3
     

     Procurators have the following duties:
     . . . .
     (3) Investigating criminal cases directly accepted by the people’s procuratorates as stipulated by law;
     . . . .

5. Organic Law of Local People’s Congresses at All Levels and Local People’s Governments at All Levels
   • Article 59, item 5
     

     A local people’s government at or above the county level shall exercise the following functions and powers:
     . . . .
     (5) to . . . conduct administrative work concerning . . . supervision . . . within its administrative area;
     . . . .

6. All other supervisory duties now carried out by administrative supervision organs will be transferred the supervision commissions.

If you enjoy this Blog, please consider subscribing to our blog posts, following us on Twitter, or liking us on Facebook!