Remote-level call prosecutor system
Legal analysis
Doctoral supervisor of Law School of Tsinghua University
Doctoral supervisor Zhang Jianwei
Abstract: The practice of calling prosecutors at different places is based on the provisions of Article 24, Paragraph 1, Item 4 of the Organization Law of the People's Procuratorate. Its system root is the legal principle of the integration of the leadership system of the procuratorate and the procuratorate. in principle. If prosecutors at all levels are regarded as divided groups with strict barriers, the particularity of the procuratorial system will be ignored. Although our country's prosecutors have a certain geographical dependence, the system of electing people's congresses at the same level or appointing prosecutors by their standing committees has not been compromised by the practice of calling prosecutors in individual cases. The current optimization of public prosecution power is in line with the judicial needs after the increased confrontation, and does not damage the principles of procedural fairness and weapons equality, nor will it lead to the absence of supervision and constraints within the procuratorial system. Lack of understanding of the judicial attributes and institutional characteristics of the procuratorate, etc., is the root cause of different opinions in calling prosecutors at different levels in other places. It is obviously necessary to conduct necessary legal analysis on this issue to eliminate unnecessary misunderstandings. few.
Keywords: prosecutor; call from other places and level; procuratorial integration; judicial fairness
The practice of calling prosecutors in other places and level has not attracted outside attention in the field of self-investigation of prosecutors in the procuratorate. However, the public prosecution field is different. In recent years, there has been an increase in cases where prosecutors from other places have been called in court for public prosecution. Once the space for multiple parties to participate and confrontation with litigation is entered, this practice is challenged because of the objection raised by the defense lawyer, and this objection can be made public outside the litigation. , so this controversial issue entered the public's vision and began to be noticed by the legal community. For example, after the "Wang Yongming Case" in Inner Mongolia Autonomous Region became a lawsuit, with the advancement of the litigation process and the continuous challenges initiated by lawyers, the general public and some scholars in the legal field and personnel from the practical department paid attention to it. After a lawsuit, the case was tried by the court of Baotou City . The jurisdiction was designated by Inner Mongolia Autonomous Region Higher People's Court, and transferred to the court of Wuhai City . The judges and prosecutors were reorganized. Among them, the call of the prosecutor attracted attention because of the defense's public doubts. The new prosecutor team is a group of 18 people. These 18 people are prosecutors from the third-level courts of the Inner Mongolia Autonomous Region, including prosecutors from the People's Procuratorate of the Autonomous Region. But unlike the general statement online, this prosecutor team is not all prosecutors, 9 of which are prosecutors who appear in court for public prosecution, and 9 are prosecutors. In other words, there are actually 9 people who serve as prosecutors.
In judicial practice, it is rare to call prosecutors in different jurisdictions and prosecutors at different levels of procuratorial organs. Because the number of such cases in the past is relatively small, once done, it is easy to arouse the alertness of defense lawyers. objection. These objections generally revolve around the geographical attributes of prosecutors, namely the correspondence of their respective jurisdictions and the jurisdiction system for criminal proceedings. The questioners believe that the practice of calling prosecutors at different places and at different levels in court to prosecute publicly undermines judicial fairness, and even proposes Its " is unconstitutional and " and violates the election and appointment system of the People's Congress. If a lawyer proposes that the relevant judicial interpretations of calling prosecutors at different places and levels are unconstitutional and have no legal basis, it has especially shaken the People's Congress system of the people in our country, . This criticism is quite sharp, especially from the opposite party in the case of ongoing litigation, with the significance of case justice. The author believes that whether prosecutors can perform their duties across jurisdictions and judicial levels within the procuratorial system is a question worth discussing in the procuratorial system. Unauthorized remote-level operations are of course not allowed.However, there is an unreasonable basis for performing duties at different places and at different levels under the call of the superior procuratorate, whether it violates the Constitution and the law, and whether judicial justice has harmful results, it should be analyzed from the perspective of legal theory, system and practicality to give an answer.
1.
Legal basis and institutional root
Some commentators questioned that the practice of calling prosecutors in different places and the corresponding judicial interpretations have no superior legal basis. In fact, this statement is wrong. In our country, the practice of calling prosecutors at different places and levels has a clear legal basis, and its legality is unquestionable. The basis for calling prosecutors at different places and levels is the provisions of Article 24, Paragraph 1, Item 4 of the Organization Law of the People's Procuratorate, with concise content: "The prosecutors in their jurisdiction can be called uniformly to handle cases." This article stipulates that the superiors The People's Procuratorate exercises its powers over the lower People's Procuratorate, which are divided into four items. In addition to the unified call of prosecutors, it also stipulates three other specific powers: If the lower People's Procuratorate believes that the decision of the lower People's Procuratorate is wrong, it shall instruct the lower People's Procuratorate to correct it, or revoke it according to law. , change; the jurisdiction may be designated for cases under the jurisdiction of the lower People's Procuratorate; the cases under the jurisdiction of the lower People's Procuratorate may be handled. The establishment of this system is rooted in the superior and subordinate leadership relationships of the procuratorate as determined by our Constitution, and also reflects the particularity of the procuratorial system, namely the principle of procuratorial unity. The leadership relationship between superiors and subordinates of the procuratorate is the procuratorial system stipulated in our Constitution. Although the principle of procuratorial unity is not clearly stipulated in our laws, it is a recognized legal principle. The principle of procuratorial unity is also the basic principle of the procuratorial system and is the basis for many countries, especially those in the civil law system, to build a procuratorial system. The exercise of prosecutors' prosecutor's power reflects the will of the state. "In order to prevent mistakes in the exercise of prosecutors, correctly reflect the will of the state, and as a whole, the organization of prosecutors is essential. That is to say, , the organization of prosecutors should not only maintain the independence of prosecutors, but also establish an appropriate supervision system and efficiency, and take into account the division of labor and cooperation in procuratorial work. "Therefore establish an organizational principle that is compatible with its functions, The principle of procuratorial unity is the principle of constructing procuratorial organizations.
The principle of procuratorial unity plays a guiding role in the adjustment of internal relations of the procuratorate, which is mainly reflected in two aspects: First, procuratorial organs at all levels exist as an inseparable whole, and the activities of each procuratorate and prosecutor are the whole The procuratorate and prosecutors are composed of all activities, and prosecutors at all levels coordinate and cooperate with each other to form an integral part; secondly, there is a relationship between the superior and the subordinate procuratorate and the procuratorate, and the subordinate procuratorate. When performing his duties, he shall bear the obligation to comply with the orders of the superior procuratorate and the procuratorate, and the superior procuratorate and the procuratorate shall be responsible for supervising and commanding the subordinate procuratorate.
Among the above connotations of the principle of procuratorial integration, there is one thing worth noting: prosecutors are regarded as one, and they can perform their duties on behalf of each other. According to the principle of integration and inseparability of prosecutors, in the same case, two prosecutors participated in the criminal trial and several prosecutors intervened in the same case, or the signer on the indictment and the person who appeared in the trial were not the same person. Impact the legality of litigation proceedings. This principle is also applicable to the higher procuratorate's call for prosecutors at different places and levels to handle the same case, including reviewing prosecution and attending court trial activities.
First of all, calling prosecutors at different places and levels is in line with the institutional characteristics of the procuratorate. Since the procuratorate implements the principle of integration, prosecutors are inseparable in terms of organizational characteristics, personnel calls are made if necessary within the leadership or command and supervision system of superiors and subordinates.Although our country's laws do not clearly list prosecutorial integration as a legal principle in writing, the leadership system of the People's Procuratorate established in our constitution is the same as the principle of procuratorial integration. It can be said that the procuratorial organ directives shaped in the principle of procuratorial integration. —The Chinese-style description of obedience relations is the leadership system. Not only that, my country's procuratorate also clearly agrees with the principle of procuratorial integration and uses it as a basis for improving the procuratorial system. The legal principle of procuratorial unity has been used to guide relevant legislation, judicial interpretations and judicial practice in our country. The Supreme People's Procuratorate " Criminal Procedure Rules " Article 9 reflects the Constitution's provisions on the relationship between superiors and subordinates of the procuratorate and reaffirms the leadership system of the procuratorate. The first paragraph stipulates that the Supreme People's Procuratorate is at all levels of local areas. The leadership of the People's Procuratorate, the leadership of the superior procuratorate over the lower procuratorate, and the unified leadership of the procurator general over the People's Procuratorate; the second paragraph concretizes the provisions of Article 24 of the Organization Law of the People's Procuratorate: "The superior people's procuratorate may call in a unified manner according to law. When the procurator in the jurisdiction handles a case, the call decision shall be made in writing. The called prosecutor may perform various procuratorial duties such as appearing in court to support public prosecution on behalf of the People's Procuratorate that handles the case. "For this provision, the procuratorate clearly pointed out its legal principles The basis is the principle of procuratorial integration. Sun Qian, deputy procurator of the Supreme People's Procuratorate, wrote an article pointing out: "The principle of procuratorial integration is mainly used to clarify the relationship between superiors and subordinates within the procuratorate, that is, the Supreme People's Procuratorate leads the work of local people's procuratorates, and the superior People's Procuratorate leads the lower People's Procuratorate. Work; People's procuratorates and prosecutors at all levels shall cooperate and cooperate with each other in their performance of their duties, and may inherit, transfer and represent major and complex cases. Procuratorial integration is a general rule for procuratorial organs in most countries and regions in the world and is in line with the procuratorial organs The need to exercise functions." He pointed out in particular: It is precisely in order to implement the leadership relationship between superiors and subordinates of the procuratorate, Article 24 of the Organization Law of the People's Procuratorate stipulates that "procuratorial personnel in their jurisdiction can be called to handle cases in a unified manner."
Secondly, when discussing the principle of prosecutor integration outside the domain, the content of calling prosecutors at different places and levels is not clearly listed. The author believes that in many countries or regions, this kind of calling prosecutors is not common or undisputed. It may not be within the scope of the institution founders and their researchers. In addition, such prosecutor personnel calls do not have institutional barriers in some countries and regions and will not become a controversial issue. In other words, whether to call prosecutors at other places and levels to conduct public prosecution activities depends on special needs in the judiciary. For example, in international judicial activities, both judges and prosecutors have different domains (or even foreign countries) calls. For example, judges and prosecutors in the trial of the Far East International Military Tribunal are composed of judges and prosecutors sent by different countries to form collegial panels and prosecutors. It is not impossible to make similar calls based on special needs in judicial trials in a country. At the end of 1980 and early 1981, the members of the Special Court of the Supreme People's Court and the Special Procuratorate of the Supreme People's Procuratorate were not limited to the personnel of this court. For example, the director of the Special Procuratorate is Huang Huoqing, the procurator of the Supreme People's Procuratorate, Yu Ping, the deputy director is Yu Ping, the deputy procurator of the Supreme People's Procuratorate, and the other deputy director is Shi Jinqian, deputy director of the General Political Department of the People's Liberation Army. among the procuratorates The pictures are working in in , which shows that not all members of the Special Procuratorate are staff members of the Supreme People's Procuratorate. The president of the special court is Jiang Hua, the president of the Supreme People's Court, , the deputy president is Zeng Hanzhou, the vice president of the Supreme People's Court, and Wu Xiuquan, deputy chief of staff of the General Political Department of the People's Liberation Army. Fei Xiaotong is also among the judges. Not all members of the special court come from the Supreme People's Court. This is true for special cases. Ordinary cases are based on the actual needs of handling cases, and the practice of calling prosecutors at different places and levels should not be ruled out.
Finally, from some similar systems and practices, it can be seen that the practice of calling prosecutors at different levels in other places under the principle of procuratorial integration is undoubtedly true.Professor Lin Yuxiong once said: "In other situations where 'other legislation has not been clearly regulated', conflicts must be weighed through legal methods, and the principles and principles that construct the basic values of the constitution, and even the basic values of the Constitution can be determined." From this perspective, the legislation of various countries may not be able to provide comprehensive provisions on the application of legal principles. Some implicit systems and practices can be determined by lifting weights. For example, the British procuratorate allows the appointment of some personnel to represent this person among non-prosecutors. The Procuratorate conducts prosecution. Article 5 of the Crime Prosecution Act of 1985 stipulates that at any time, the Procuratorate may appoint a person who is not a prosecutor to prosecute on behalf of the Procuratorate. These persons should be lawyers outside the court or specialized in public institutions. Attorneys who, upon appointment, may “invest or take over and conduct criminal proceedings designated by the Attorney General”, "Any person assigned by the Prosecutor to conduct a lawsuit shall have the same powers as the prosecutor, but the powers granted to him must be exercised as directed by the prosecutor." The prosecutors in some countries are able to appoint specific personnel outside the system to conduct criminal activities on behalf of the prosecutor's office. In litigation, the legitimacy of the prosecutor's practice of calling out at another level in another place can be determined based on the principle of lifting the weight and making it light. In short, there is no doubt that the practice of calling prosecutors at different places and the characteristics of the procuratorate's system are in line with the characteristics of the procuratorial organs.
2. Prosecutor election and appointment system
and its regional dependence
Some commentators criticized that according to Article 9, Paragraph 2 of the People's Procuratorate Criminal Procedure Rules, the superior procuratorate may arbitrarily mobilize prosecutors to handle cases across regions and regions. Even if you represent cross-regional procuratorates to support public prosecution, the system in which the procuratorate or above positions in the procuratorate needs to be elected or appointed by the People's Congress at the same level is useless. The starting point of this view is that prosecutors should have strict geographical dependence, and their basis is the system in which prosecutors and prosecutors of local procuratorates at all levels are elected by the People's Congress at the same level or appointed by their Standing Committee. A careful analysis will reveal that this view cannot stand scrutiny: First of all, if the called prosecutor participates in case handling as a prosecutor, he needs to obtain the status qualifications of the election of the People's Congress at the same level of the procuratorate to which he belongs to the procuratorate or the appointment of the Standing Committee in advance. Elections and appointments have not been evaded; secondly, calling prosecutors is called temporarily due to individual cases. As the case ends, the called prosecutors still return to their respective procuratorates, and have not broken the prosecutors' original "regional dependence" , there is no problem of blurring the election and appointment system, so it cannot be said that the system of election or appointment of the People's Congress at the same level is useless.
So, should prosecutors have strict geographical dependence? It is necessary to further analyze this issue. Opposing the prosecutor's view of performing duties at different places and at different levels is closely related to opponents' understanding of the prosecutor's national attributes and local attributes. That is, the prosecutor appointed and removed from the Standing Committee of the Local People's Congress is recognized as a judicial official affiliated to the local area. This forms a judgment that the judicial organ to which it belongs has a clear and strict correspondence relationship with the prosecutor, believing that the prosecutor cannot perform his duties beyond the corresponding jurisdiction of the judicial organ in which he is located. Indeed, in terms of judicial practice, prosecutors assigned by local procuratorates at all levels usually only perform their duties within their own jurisdiction. If they have to perform their duties across jurisdictions due to case handling needs and handle cases in other jurisdictions, they need to provide them with them. Cooperate. However, whether this law enforcement situation excludes prosecutors from performing their duties across regions and levels in individual cases under the unified deployment of higher authorities, and whether there are doubts about the legitimacy and legality of performing their duties in this way, it needs to be investigated in depth.
Like judges, our country's prosecutors rely on the system of the People's Congress and its Standing Committee.Article 18 of the Prosecutors Law stipulates the system of electing, removing prosecutors by the People's Congress or appointing and removing them from the Standing Committee according to Articles 101 and 138 of the Constitution, including: The Procurator General of the Supreme People's Procuratorate is represented by the People's Republic of China The election and removal of the general meeting, the deputy procurator general, the procuratorial committee members and procurator, shall be appointed and removed by the procurator general of the Standing Committee of the National People's Congress; the procurator general of the local people's procuratorate at all levels shall be elected and removed by the people's congress at the same level, and the deputy procurator general shall be elected and removed by the people's congress at the same level. , members of the Procuratorial Committee and prosecutors shall be submitted by the Procurator General to the Standing Committee of the People's Congress at the same level for appointment and removal; the appointment and removal of the Procurator General of the People's Procuratorate at all levels in the local people's procuratorate must be submitted to the Procurator General of the People's Procuratorate at the next level for approval. People's procuratorates at all levels in my country are appointed and responsible to the People's Congress at the same level, and the Procurator General has clear term limits. For this system in which procuratorial organs of different levels and different categories are elected by their corresponding National People's Congress or appointed prosecutors to their respective prosecutors, it cannot be concluded in a superficial manner that "except for the prosecutors of the Supreme People's Procuratorate, prosecutors must all It is a misunderstanding of the judgment of local officials.
Prosecutors of local people's procuratorates at all levels in my country uniformly exercise the judicial power granted by the state , complying with laws applicable nationwide, and their identity attributes are both regional and super-regional. From the election and appointment of people's congresses and their standing committees at all levels, it is regional; however, from the perspective of the national attributes of judicial power and the unity of the basis of judicial activities, the prosecutor's profession is super regional, that is, prosecutors He is not a local judicial officer, but should be a "prosecutor of the Republic."
In many countries in the world, prosecutors are state officials, not local officials: in the Republic, prosecutors belong to prosecutors of the Republic; in the Kingdom, prosecutors represent the king and are called "the royal prosecutors." Prosecutors Since the emergence of France, the original prosecutors represented the king. Early French prosecutors represented the king in litigation affairs, which became the origin of the modern prosecutor system. When the kingdom ceases to exist, the prosecutor exercises the right of public prosecution on behalf of the state. In constitutional monarchy countries, prosecutors may be identified as agents of the king. For example, British prosecutors are still called "Crown prosecutors". In a less strict sense, they can borrow "the world is the king's land" to Describe the geographical attributes of prosecutors. Those who perform prosecutors in various places are royal prosecutors who accused crimes on behalf of the British King, not local officials. In the Republic, prosecutors no longer represent the king but the state, so prosecutors in court are generally called "state prosecutors." Our country's prosecutors call "national prosecutors" in court, and their characteristics of prosecutors on behalf of the state are very clear. There is no doubt that the prosecutor's prosecutors exercise the nature of "state powers".
Of course, there are also countries that have the role positioning of local officials among prosecutors due to specific systems or historical reasons. For example, the United States has two major judicial systems, and the federal and state have different judicial systems and are not affiliated with each other. Professor He Jiahong pointed out: "The US procuratorial system has the characteristics of "three levels, two tracks, mutual independence". The so-called "three levels" refers to the establishment of the US procuratorial organs at the three "government" levels of the federal, state and city. . The so-called 'dual track' means that the procuratorial functions of the United States are exercised by the federal procuratorial system and the local procuratorial system respectively. The two are parallel and do not interfere with each other. Moreover, all procuratorial organs are independent of each other regardless of their 'level' and size. . In other words, there is no affiliation between the federal, state and municipal procuratorates, nor even supervision and guidance. "Prosecutors often belong to local officials and are elected by local elections, which is a result of the American local decentralization system. kind of arrangement. This local decentralization is related to the historical geography of the United States: the vast and sparsely populated geographical and cultural environment creates a strong local government system, which is suitable for American life and economy, which is basically agricultural in the late 18th and early 19th centuries. In American society, it depends more on the government function that quickly and independently solves local problems.Implementing local decentralization in judicial and semi-judicial power is the legal tradition of the United States, which is why prosecutors usually have local attributes. The United States established the local elected system of prosecutors in the wave of democracy from 1830 to 1850. The U.S. procuratorate has high flexibility in personnel power. Prosecutors can hire lawyers to serve as prosecutors or assistants, which is a flexible and flexible performance based on actual needs.
Like the United States, Germany is a federal state and there are two non-affiliated procuratorial systems of the federal and state. In addition, in Germany, there is a local procuratorial system, "In addition to the Federal Attorney General, the German states have the General Prosecutor's Office and the State Prosecutor's Office." Correspondingly, in Germany, there is the title of "local prosecutor": "'local prosecutor' The name first appeared in the German Court Organization Law in 1877. Now, most states in Germany have local prosecutors set up in the state prosecutors and are members of the state prosecutors. The state prosecutors in the state prosecutors are generally directly It is called 'prosecutor'." It is worth noting that "district prosecutor" and "state prosecutor" have different concepts. Both are personnel who handle cases directly. Some procuratorates mix the two together. The local attorney is concentrated in one department. They all have to obey the orders of their superiors, but they have their own independent statutory responsibilities. Only in some major cases, the district attorney, as the assistant of the state attorney, will he obey the orders of the state attorney. There are specific purposes for setting up "district prosecutors": "The purpose of setting up a special form of prosecutors is to reduce the work pressure of state prosecutors so that the latter can devote their energy to the investigation of major and difficult cases. In addition, introducing the local prosecutor system can greatly save financial expenditures. "
Obviously, there is a difference between my country's procuratorial system and the US and Germany's procuratorial system. my country does not have the decentralization of the central and local powers in terms of justice, and its judicial system has The nature of the complete and unified prosecutors are not divided into state prosecutors or local prosecutors, but are both of them belong to the nature of state judicial officers. This attribute constitutes one of the prerequisites for prosecutors to perform their duties at different places. The system of prosecutors being appointed and removed by local people's congresses and their standing committees has its reasons: it facilitates local people's congresses and their standing committees to understand the situation, examine their position conditions, and also facilitates supervision. Therefore, the implementation of a system in which people's congresses at all levels produce people's procuratorates and people's courts at all levels and the latter is supervised by the former, for the convenience of people's supervision. In fact, the standards for judicial qualifications of prosecutors are unified. my country implements a unified legal qualification examination system and implements unified standards for appointment conditions stipulated by law. There is no appointment standard for prosecutors in different places. Although the qualification requirements for judicial examinations in old, young, border and poor areas were once relaxed, Prosecutors who perform duties in specific jurisdictions who hold judicial examination qualification C certificates are generated by the state based on specific needs, and do not mean that localities can determine the legal qualifications for prosecutors in different districts on their own.
Under the current system of elections by the local people's congress and appointing prosecutors by the Standing Committee, how do you understand the relationship between this appointment system and the attributes of prosecutors as state officials? The author believes that the practice of appointing prosecutors by the Standing Committee of the People's Congress at all levels in the local area can be understood as a proxy nature, that is, the Standing Committee of the People's Congress at all levels in the local area acts as the highest authority to exercise the power of appointment and removal, and once appointed as a judicial officer, , the judicial judge is of a state official, and exercises judicial power and procuratorial power on behalf of the state. The prosecutor obtains the status of a prosecutor of the Republic. Therefore, although appointed by the local government, the judicial judge belongs to a state official rather than a local official.
can be compared with that in our country, administrative officials are state officials, and their administrative actions have unified national governance significance. However, unlike judicial judges, administrative officials of local governments handle local affairs every day, and there are many Administrative affairs are also handled in accordance with local laws and regulations, and their administrative actions are not as dependent on national laws as those of judicial organs.Therefore, there is a certain difference between the administrative actions of administrative officials in various places and the judicial actions of prosecutors in handling cases in accordance with strict legal dependence. Many of the affairs targeted by their administrative actions fall within the category of local affairs, and their regional dependence is significantly higher than that of judicial officials. .
It goes without saying that one of the actual situations of justice in my country is the territorialization of judicial judges. Not only do scholars ignore this issue for a long time, but judicial organs have regarded this as a matter of course. In the consciousness of many people, except for the judges and prosecutors to the Supreme People's Court and the Supreme People's Procuratorate, judicial judges are local officials, no different from administrative personnel. This concept of territorializing judicial officers is based on the judicial selection system and the division of different jurisdictions, and ignores the actual need for judicial officers to get rid of regional dependence, which is not conducive to grasping the characteristics of the judicial judge group as a whole. Judicial practice is affected by the territorialization of judicial officials. The regional dependence of judicial judges is the institutional reason for localism. Judicial organs obey local power departments, and judicial judges are the unit of this localist obedience relationship. It can be seen that the funds of judicial organs come from the financial departments of local governments, and the case handling venues are also arranged by local governments. The vital interests of judicial personnel's relatives and children's enrollment are linked to the treatment and conditions provided by local governments. "It will inevitably damage the entire judicial justice more seriously than the injustice in individual cases." "The unified judicial power of the state is divided into local judicial power, and the law is no longer authoritative."
my country's judicial reform has noticed the shortcomings of the lack of overall independence of judicial organs and the localization of judicial officers. It is trying to start from the removal of local control of people, money and property in judicial organs and solve the problem of local protectionism in the judicial field. The reform content of the unified personnel power of judicial judges is exercised by the provincial level is the first step to clarify the role positioning of prosecutors as prosecutors in the Republic. Unfortunately, due to various ties, this step has not yet been implemented steadily. What is the relationship between the provincial-level management of judicial officials and the election and appointment of judicial officials in the election and appointment of judicial officials in the local people's congress and its standing committees has not been clarified, resulting in the jurisdiction of judicial officials. The problem of transformation has not been solved yet, but the concept of the judicial officer has shaken the concept of regional attributes. Judicial organs break the regional attachment (administrative division attachment) by establishing cross-administrative division judicial organs. The author believes that calling prosecutors at different places and levels is also a breakthrough, which is conducive to weakening the concept of localization of prosecutors and shaping the role of prosecutors in the direction of "prosecutors of the Republic" and making them return to their due role characteristics. It has a positive effect. Since the prosecutors of the public prosecution team come from different levels and regions, this has obtained the possibility of not being affected by non-judicial factors in a certain region, which is conducive to breaking local improper control and illegal intervention, breaking down the resistance to handling cases, and for some cases, For example, this is the organizational condition for obtaining judicial justice in individual cases.
The author believes that the ideal judicial appointment and removal system is better for the unified appointment and removal of the Standing Committee of the National People's Congress. This system can better match the attributes of judicial judges as state officials rather than local officials, and also help strengthen their independence and get rid of them. The bond of localism. The author hopes that the new judges and prosecutors across the country will be appointed and removed from the Standing Committee of the National People's Congress in the future. Before this system reaches its ideal, judicial judges should be cultivated, and judicial judges should not be regarded as local officials without limiting the appointment and removal system of local people's congress and its standing committee. The cultivation of this consciousness is conducive to the unity of the state's judicial system and to eliminate the influence of localism.
In short, the identity attribute of a prosecutor is a prosecutor of the Republic, not a local official. The procuratorate calls prosecutors at a different level in another place is conducive to breaking the inherent thinking of judicial territorialization and also helping to break the localism of judicial affairs. It is worthy of recognition A judicial system. Unfortunately, some critics have not yet recognized the positive significance of the dispatch of off-site and distributive prosecutors in delocalization and beyond localism.
33. Enhanced litigation confrontation
and the judicial needs of optimizing the power of public prosecutors
The practice of the People's Procuratorate to call prosecutors at different places has its specific judicial needs, which are reflected in two aspects: First, investigation In terms of investigation, when the procuratorate handles investigation cases, concentrating superior forces is an effective way to achieve high-level and high-quality completion of investigation tasks. Therefore, before the reform of the national supervision system, the procuratorate acts as anti-corruption cases and anti-malfeasance infringement cases. The investigative agency will make follow-up calls to investigators according to the investigation needs to optimize the combined case handling force. This practice can still be used today; secondly, in terms of public prosecution, in the criminal trial stage where litigation defense is gradually increasing, the procuratorate will in order to To respond to powerful challenges from the defense party, adopt the practice of calling prosecutors at a different level in another place. In addition, when the public prosecution case is split, in order to ensure the efficiency of litigation, there are also acts of calling prosecutors at different places and at different levels.
In the first case, the practice of the procuratorate to call elite soldiers to conduct investigations is the same as the public security organs organs organs organs in investigations and the discipline inspection and supervision organs seconded prosecutors to assist in handling cases. They are all aimed at meeting the actual situation of investigation or investigation and handling cases, just like the public security organs organs organs in the investigation and the discipline inspection and supervision organs seconded prosecutors to assist in handling cases. need. If such calls are not allowed, it will be detrimental to high-quality and efficiently ascertain the facts of the case and promote the case handling process. In the second case, the procuratorate optimizes the allocation of the public prosecution team in order to strengthen the public prosecution capabilities or save judicial resources (to avoid the newly allocated case handlers to review and prosecute again after the case is split). In this case, the defense lawyer was worried that the other party would be able to make a lawsuit and wanted to stop it. Therefore, during the trial of some cases, the defense lawyer raised doubts about this practice and proposed that the procuratorate's call for prosecutors at different places and at different levels in other places would undermine judicial fairness. One of the reasons for the questioning of prosecutors' handling of cases at different places and at different levels is that this practice has led to an imbalance in the litigation structure. If someone raises doubts about the newly formed prosecutor team of the procuratorate after the change of the Wang Yongming case in Baotou, he believes that 18 "prosecutors" support the public prosecution. The prosecution uses so much human resources to accuse the crime. Although it is very efficient, it is harmful. Fairness, especially if the prosecutors from the Inner Mongolia Autonomous Region People's Procuratorate participated in the prosecutor's team to appear in court to support the prosecution, it will lead to imbalance in the trial and trial, which is contrary to procedural justice.
The litigation structure of the ideal model is that the judge is in the center and keeps an equal distance from the prosecution and defense, and the prosecution and defense have equal status and equal rights. Regarding the practice of calling prosecutors at a different level, some commentators believe that it is harmful to this litigation structure and put forward specific opinions: First, it damages the principle of equality between prosecution and defense, governs the determination of the court, and implements the requirements of the principle of equality of law, and the principle of statutory judges. It is also the premise for the prosecution and defense to "equal weapons" between the prosecution and the defense. Unlike civil litigation, the status of the prosecution and defense in criminal litigation is unequal and their identities cannot be changed. Especially in public prosecution cases, the prosecution is the People's Procuratorate that represents state power. In order to achieve effective confrontation between prosecution and defense, equal weapons between both sides is particularly necessary and important. The second is to damage the subjective position of the court. The goal to achieve the determination of jurisdiction is to maintain the independent status of the judicial subject, so as to eliminate the opportunity for administrative forces to interfere in the judicial system by manipulating jurisdiction. The questioners suggested that the People's Procuratorate of the Inner Mongolia Autonomous Region dispatched troops and even sent the prosecutors of the court to take action personally. This kind of prosecutor team actually undermined the jurisdiction system. The People's Procuratorate of the Inner Mongolia Autonomous Region has the status of manipulating the judicial system in the trial, and the judge became " Front desk puppets”. In front of a public prosecution team composed of prosecutors serving in the Inner Mongolia Autonomous Region People's Procuratorate and prosecutors serving in other municipal and district procuratorates in Inner Mongolia, Wuhai Wuda District People's Court, as a district-level court, organized the trial, and formed a prosecutor's trial. Imbalance, some prosecutors in the prosecution group are higher than those in the court hearing this case, resulting in asymmetric court power structure and affecting the judges' objective and fair trial.
The author believes that neither of these doubts are valid.First, the principle of equal weapons between the prosecution and defense refers to the equal design in the allocation of powers and litigation rights to ensure the "weapons" (i.e. powers and litigation rights) that guarantee the attack and defense of both parties are roughly equivalent, and does not mean that the number of people on both sides is generally the same. It does not mean that the litigation level, case handling experience and position of both parties must also be consistent or equivalent. The practice of calling prosecutors at different places and levels has nothing to do with the principle of "weapon equality". Prosecutors calling prosecutors at different places and levels still maintain equality with the defense party in their litigation status. The litigation rights will not be expanded due to this call. The legal rights It is also impossible to vary depending on the organizational structure of the prosecutor group. As for the "identity cannot be converted" mentioned by the questioner, the practice of calling the prosecutor has nothing to do with identity conversion - the prosecutor did not change it to other litigation roles because of this. Secondly, the higher procuratorate dispatched troops and even sent prosecutors from our court to participate in the prosecutor team. It was just an adjustment of the prosecutor's personnel structure and was a problem of internal personnel allocation. The new prosecutor team carried out litigation activities and carried out legal supervision, which represented the The procuratorate corresponding to the court under trial does not represent the superior procuratorate. In other words, the procuratorate that initiates the public prosecution has a hierarchical correspondence with the judicial organ that hears the case. No matter which level or place the prosecutor in the court is from, his original agency has not replaced the specific handling of the case. The procuratorate cannot override the jurisdiction system. The kind of logic that the higher procuratorate has manipulated the court's trial by adjusting its own prosecution team is obviously not working.
The procuratorate has no leadership relationship with the court, and the superior procuratorate has no control over the lower court, and does not necessarily have the influence of power. The judges do not need to have the power to fear prosecutors from the superior court of the procuratorate. The legal supervision power of the procuratorate over trial is regulated by law and exercised in a statutory manner in accordance with statutory circumstances. As long as the trial does not violate the law, legal supervision will not initiate a correction mechanism. What's more, the strengthening of legal supervision in the awareness of judges is not a good thing for trial fairness. The author believes that what the questioners are really worried about is the optimization of the procuratorate's public prosecution capabilities, which puts pressure on defense. The questioners often call defense lawyers for the practice of dispatching prosecutors at other places and at different levels, which is intriguing. Defense lawyers have their own specific pursuit of interests in litigation. What they doubt is that the procuratorate's ability to prosecute public prosecution increases the difficulty for the defense to achieve the expected results. Some lawyers think about their own interests and hope that the accused party’s public prosecution ability will remain low, and also hope that defense lawyers will have an advantage over the prosecutors in joint crime cases. This mentality makes them unwilling to accept the call of prosecutors at different places. The practice of handling cases cannot be fairly viewed by the prosecutor's practice of optimizing the allocation of its personnel performing its accusation functions.
When Baotou tried Wang Yongming's case, the defense party had the advantage of numbers. The defense lawyer took advantage of this group advantage, making it difficult for the prosecutor who was obviously inferior to his own. In the large number of defense lawyers, the prosecutor who was alone was overwhelmed with it. During this process, the assistant prosecutor intervened and spoke when his party was at a clear disadvantage, resulting in the defense lawyer accusing him of "illegal". Similarly, when there are many lawyers and high activity, it is difficult for the presiding judge who presided over the trial to suppress the public. Other members of the collegial panel have to help him maintain court order, which has triggered defense lawyers to accuse him of "illegal". Therefore, the procuratorate who transferred to Wuhai City for public prosecution obviously learned the lessons learned from the trial in Baotou by Wang Yongming's case and strengthened the staffing of the public prosecution team. What we want to achieve is exactly the kind of "weapon equality" that the questioners understand in their minds. in principle.
In addition to the reasons for questioning the imbalance of litigation structure, there is also a technical reason for procedural work. The questioner said that the practice of calling prosecutors at different places and levels violated the provisions of regional jurisdiction and hierarchy. Theorists believe that prosecutors believe that prosecutors Having strict regional dependence and level of trial dependence, handling cases across regions and levels of trial breaks through regional restrictions and level of trial, which is legitimacy of violation of procedures.
For this question, it is necessary to analyze the reasons for the establishment of the regional jurisdiction system and the level jurisdiction system. In the jurisdiction system, the authority of relevant procuratorates and public security organs, supervisory organs, and judicial organs to accept cases belongs to the functional jurisdiction (also known as the jurisdiction of matters). It is obvious that the practices of procuratorates from other places and levels during the trial stage and the practices of procuratorates from other places and levels in different places and different levels in the trial stage. This type of jurisdiction has nothing to do with it. The other two main types of jurisdiction are: regional jurisdiction and level jurisdiction, both of which belong to trial jurisdiction. There are strict and clear regulations on which area, level of court to be prosecuted in a case, and which specific court to which case is filed. Regional jurisdiction mainly solves the issue of trial registration in a case. The judicial organs in different regions have the power and responsibilities for the case that is about to be prosecuted. It must be clarified in order to smoothly advance the litigation process. Level jurisdiction mainly solves the problem of which level of judicial authority should be accepted as the first-level trial. The procuratorate determines its jurisdiction in accordance with the court's jurisdiction system, and the jurisdiction in investigation and investigation can be flexible compared to trial and prosecution. The jurisdiction here is set up with the agency as the main body, not with the prosecutor as the main body. Only when the territorial and level dependence of judges has special significance, can there be the "legal judge principle".
The superior principle of regional jurisdiction and rank jurisdiction is the "statutory judge principle", that is, "What kind of case is handled by which judge must be determined in advance by abstract and general laws, and it cannot be waited until the specific case occurs before entrusting individual cases. Otherwise, if judicial administration controls a small number of judges and then allows them to handle important and sensitive cases, the principle of judge independence will become empty talk. In order to meet the above requirements, the Criminal Procedure Law or the Court Organization Law must be as clear as possible to regulate the judges. jurisdiction regulations and rules for distribution of affairs, land, etc..” It can be seen from this that one of the main functions of the statutory judge principle is to prevent the manipulation of judicial power by designating judges and calling judges, and to prohibit the case from being manipulated in order to achieve a certain expected judgment result. Therefore, it is reasonable and necessary to strictly abide by the method of regional jurisdiction, level jurisdiction and implement random case classification. However, there are obvious differences between public prosecution and trial. Public prosecution is an activity to initiate trial procedures, which has the effect of establishing a litigation relationship and defining the scope of trial. It is not judged or final in trial. It is of course important to comply with objective obligations, but The prosecutor who is the accuser does not have the same neutrality as the judge and is determined by the prosecutor's litigation function characteristics.
determines that jurisdiction is based on the case handling agency, not the case handling personnel. In other words, as long as the case handling agency is determined in accordance with the jurisdiction principle, the called case handling personnel represent the agency to handle the case, and does not violate jurisdiction in principle. To be clear, if the prosecutor of the provincial procuratorate is assigned to perform litigation duties on behalf of the lower procuratorate, the lower procuratorate as a procuratorate that meets the jurisdiction regulations will not change. Therefore, the procuratorate and the judicial organ correspond one by one, as long as the procuratorate conducts litigation activities according to this correspondence relationship when prosecution is filed. Although the procuratorial system is assigned to represent this agency in the procuratorate to conduct litigation activities, it is illegal to invoke it based on special needs.
If not - we assume that the aforementioned questioners' views are valid - then, even if the investigators of the public security organs are not appointed and removed from the Standing Committee of the People's Congress at all levels, they still belong to a specific public security organ, which is also the same level If one of the government departments arising from the People's Congress and the public security organs have their own jurisdiction division, that is, to determine their jurisdiction by referring to the jurisdiction of trial, then the unified deployment of investigators to handle cases at different places and at different levels will also face the same problem of not being allowed. It is impossible to call investigators uniformly for investigation. Obviously, this is consistent with the logic of the prosecutor's call from another place.In other words, if the investigation can call the investigator based on actual needs, and the public prosecution cannot call the public prosecution based on actual needs, this view seems to be without sufficient reason.
This calling system of the procuratorate has similarities with lawyers handling cases in other places. Although lawyers are registered by local judicial departments, they are not limited to their place of registration and can practice in other places according to law, which has significantly enhanced the defense ability of the defense party due to the intervention of more well-known lawyers. The lawyer's practice system stipulated in the Lawyer Law adopts the practice of registration of local judicial departments and bureaus. It also stipulates that lawyers can practice in other places, so lawyers can improve their defense strength. Why can't the procuratorate call prosecutors with strong case handling capabilities in the jurisdiction to form high-quality What about team handling cases? If the prosecutor's call is prohibited, then the same logic can also apply to lawyers' practice. Should the questioners also advocate limiting the lawyer's regional scope of practice and requiring them to practice only at the registered place?
4. Whether the prosecutor calls
Prosecutor calls
Prosecutor calls in other places and different levels. Whether the prosecutor calls in other places affect supervision within the procuratorial system is worth studying. The supervision of the procuratorate has two directions: one is outward supervision, based on Article 129 of the Constitution of our country, namely the legal supervision function determined by the Constitution, and the supervision direction is the public power organs such as public security organs, people's courts, etc. that are external to the procuratorate. ; The second is introverted supervision, based on Article 132, Paragraph 2 of the Constitution, that is, the Supreme People's Procuratorate leads local people's procuratorates at all levels and special people's procuratorates, and the superior people's procuratorate leads lower people's procuratorates. This leadership relationship between the upper and lower levels certainly includes the supervisory function of the higher people's procuratorate over the lower people's procuratorate.
Calling prosecutors at a different level is one of the leadership performances of the higher people's procuratorate over the lower people's procuratorate. The prosecutor who calls at a different level in another place belongs to the personnel call right, and the nature of this power belongs to the judicial administrative power. The leadership of the higher People's Procuratorate on the lower People's Procuratorate is not only reflected in the leadership of procuratorial policies and guidelines, as well as guidance on procuratorial business, but also in the leadership of organization and personnel. Without organizational and personnel leadership, the leadership of the higher people's procuratorate over the lower people's procuratorate is obviously incomplete, and it will not be easy to distinguish from the supervision relationship between the higher people's courts over the lower people's courts. The supervision of the procuratorate and its case handlers has two sources in the procuratorial system: one is the supervision of the lower People's Procuratorate by the higher People's Procuratorate, which is specifically manifested as the supervision of the higher People's Procuratorate by the higher People's Procuratorate by the higher People's Procuratorate; the other is the supervision of the lower People's Procuratorate by the People's Procuratorate by the People's Procuratorate by the People's Procuratorate by the People's Procuratorate by the The supervision of the prosecutors to which they belong is nothing more than the supervision of the superiors of this court over the subordinates. This kind of supervision is a vertical supervision of people over people, and is a directive - supervision from the upper and lower levels in the relationship.
Calling prosecutors at different places is not only a case where the prosecutor or assistant prosecutor of the superior prosecutor is called to the lower prosecutor and handles the case on behalf of the lower prosecutor, but also a case where the prosecutor or assistant prosecutor of the subordinate prosecutor is called to the higher prosecutor, but also a case where the prosecutor or assistant prosecutor of the subordinate prosecutor is called to the higher prosecutor. The situation in which the agency handles the case on behalf of the superior procuratorate. For these two situations, the following points are likely to arouse the doubts about weakening supervision: First, the prosecutor or assistant prosecutor of the superior procuratorate is called to the lower procuratorate and handle the case on behalf of the lower procuratorate. The lower procuratorate shall deal with the procuratorate from the superior procuratorate. It is difficult for the case handlers of the agency to supervise, especially when the prosecutor or assistant to the prosecutor of the higher procuratorate has a higher rank, it is easier to form a lack of supervision. Second, the prosecutor or assistant prosecutor of the superior procuratorate is called to the lower procuratorate, and the superior procuratorate is difficult to supervise the prosecutor or assistant prosecutor who is called, because they belong to the superior agency and the supervision of the personnel of this court is not the same as that of the persons of this court. The personnel of the lower court are so powerful that it is easy to be useless.Third, the superior procuratorate has the function of supervising the lower procuratorate. The personnel handling cases in the lower procuratorate are prosecutors or assistants from the higher procuratorate. The supervision of the higher procuratorate by the higher procuratorate is difficult to implement due to the lack of detachment.
In my opinion, this kind of doubt about supervision is unnecessary. Supervision within the procuratorial system is an organized behavior, manifested as a specific supervision of people over people. As long as there are superiors, there may be supervision behavior. The prosecutor or assistant prosecutor of the higher procuratorate is called to the lower procuratorate and handle the case on behalf of the lower procuratorate. The case handling behavior will not result in a lack of supervision. The reason is that: First of all, the lower procuratorate has the case handler from the higher procuratorate. Direct information source for supervision and first-hand information to play the supervision function. This is the advantage of the lower-level procuratorate in the form of organization to supervise the case handlers of the higher-level procuratorate in specific case handling. Even if the case handler comes from the higher-level agency, he cannot Against organized supervision; secondly, even if there are prosecutors or prosecutors from higher procuratorates When the rank of an assistant is high, there are certain obstacles to the specific exercise of supervision power in the lower-level procuratorate. If the punishment power should be in the higher-level procuratorate rather than the lower-level procuratorate, the lower-level procuratorate may still report the supervision information to the higher-level procuratorate. The superior procuratorate exercises the power of punishment for the prosecutors and assistants of prosecutors who are the subject of supervision; finally, the superior procuratorate sends invoices to the prosecutors or assistants of the prosecutors to the court to handle the case, just as they handle the case in this court, and There is no problem of lack of supervision due to call. The only shortcoming is that relevant information often comes from lower-level procuratorates. However, if the lower-level procuratorate has awe and protection for prosecutors and assistants from the higher-level procuratorate, the higher-level procuratorate can still actively play its supervisory function. The information sources of their supervision are diverse, some come from within the procuratorial system, and some are also used to provide support. From outside the procuratorial system, such as the people's courts, public security organs and parties, provide information on the behavior of procuratorial case handlers improperly exercising procuratorial powers. If there is a source of supervision, there will be specific conditions for the supervision behavior.
In addition, there is no gap between the superior procuratorate and the lower procuratorate and the superior procuratorate, and there is no level of trial constraint that prosecutors of the superior procuratorate cannot go to the lower procuratorate to handle cases. As some commentators pointed out: "Compared with the judicial organs, the superiors and subordinates of the procuratorate are in a relationship between the leaders and the leaders. The superior procuratorate has the right to direct the activities of the lower procuratorate, and has the right to change before and after the event or The superiors and subordinates’ plans and decisions are abolished. The superiors and subordinates of the judicial organ are not in the relationship of leadership, but in the relationship of judicial supervision in accordance with litigation procedures. The superiors and subordinates have no right to direct the judicial activities of the subordinates in advance. "For this reason, the superiors and subordinates should strictly To comply with the trial level system, the higher court should not interfere in advance in cases heard by the lower court. Even if there are certain hierarchical boundaries between the superior procuratorate and the lower procuratorate, calling prosecutors at different places and levels has neither broken this hierarchical boundary nor the leadership pattern between the superior procuratorate and the lower procuratorate. The superior procuratorate supervises the lower procuratorate. It will not be affected, so concerns about the absence of supervision are unnecessary.
Not only that, the higher procuratorates in the jurisdiction where the procuratorates in other places and levels often need to study cases that require such calls. The caution in handling such cases will be strengthened, and the supervision of the callers will be strengthened, and even the supervision of the callers will be strengthened. The leaders went to the lower court to supervise and guide the case handling site. Practice has proved that the supervision of the case handlers of the lower procuratorate, including the supervision of the procuratorate dispatched by the higher court, has not been weakened but strengthened. Some people may ask: Will the superior procuratorate in advance study of cases that require personnel call to be made, and will lead to the weakening or even loss of case handling autonomy of lower procuratorates? The author believes that there is no need to have such doubts.There is no level of trial constraints prohibiting "higher and lower-level trial" in the superiors and lower-level courts. The superiors and lower-level authorities issue case handling instructions to the subordinates. This is the difference between the leadership system of the procuratorate and the supervision system of the judicial organs, so it blocks the superiors. The procuratorate shall study the cases handled by the lower procuratorate in advance, which does not conform to the actual situation and needs in judicial practice, nor can it find legal and legal basis. The procuratorate's understanding and judgment of the case, whether from the procuratorate handling the case or its superior procuratorate, it needs to be tried and judged by the court. Without the recognition and adoption of the court, the procuratorate's opinions are only the opinions of the prosecutor and will not It is automatically transformed into a judicial judgment recognized by the state, and the trial of the people's court constitutes a constraint on the handling of cases by the procuratorate.
People often exaggerate or rely too much on the supervision of superior and subordinate agencies in the procuratorial system and the constraints between different departments within the same agency. This kind of person-to-person supervision method relies on the hierarchy system, that is, the highly administrative control system. Excessive reliance on this system can easily ignore the constraints within the criminal litigation mechanism. In order to achieve judicial justice, the Criminal Procedure Law sets a restriction mechanism within the litigation structure of the prosecution and defense trial, and also sets a restriction mechanism for the public security organs to fail to approve arrests and prosecutions through reconsideration and review. At the same time, it sets a litigation. The parties and other litigation participants restrict the procuratorate through complaints and appeals. If the constraints within these litigation mechanisms can play an effective role, they can replace or promote supervision and restraint within the procuratorial system to a certain extent. The practice of calling prosecutors at different places and levels will not hinder the restrictive mechanisms within the criminal proceedings, nor will it have a mechanism-related adverse impact on judicial justice.
If the defense party finds that the prosecutor who calls at another place and at a different level has violated discipline and laws, it can be restricted through at least five ways: First, give full play to the restrictive mechanism within the litigation and safeguard his own rights and interests and judicial justice through the means stipulated in the Criminal Procedure Law; second, File complaints and accusations to the higher procuratorate and even the Supreme Procuratorate; thirdly, make complaints and reports to the discipline inspection and supervision departments; fourthly, report relevant situations to the Political and Legal Committee, the National People's Congress and its Standing Committee; fifthly, expose them with the help of the media to achieve supervision effect of appealing to public opinion . In other words, the supervision of the superior procuratorate is only one of a variety of relief means, not the only way. As long as the defense party is vigilant and finds problems, it can seek different relief means to achieve justice.
It should be pointed out that when my country's judicial system still has a vague area or blind spot, there are some technical problems that need to be solved when prosecutors accept calls to handle cases at different places and at different levels: First, can the prosecutors of the lower-level procuratorate represent the prosecutors? The higher-level People's Procuratorate handles cases in the name of "prosecutor", rather than just participating in the handling of cases as "prosecutor assistant"? Second, does the prosecutors of the higher procuratorate need to be assigned by the procurator general of the lower procuratorate on behalf of the lower procuratorate? Third, who should make the decision on the avoidance of instructions in handling cases?
The Supreme People's Procuratorate's "Criminal Procedure Rules" (hereinafter referred to as "Rules") During the revision process, the procuratorial practice department proposed that the scope of cases, procedures and responsibilities of the called prosecutor system should be stipulated in the application of the prosecutor system and the duties of the called prosecutor. . According to Article 9, paragraph 2 of the Rules, "The decision to call shall be made in writing. The called prosecutor may perform various prosecutor duties such as appearing in court to support public prosecution on behalf of the People's Procuratorate that handles the case." This provision for call The identity of prosecutors in handling cases at different places and at different levels is clarified, so that the identity attributes of prosecutors as state prosecutors rather than local officials can be highlighted.From this provision, the following points can be seen: First, there is no restriction on whether to call prosecutors from the higher procuratorate to handle cases or call prosecutors from the lower procuratorate to handle cases at the higher procuratorate, and there is a two-way relationship, "including both the The prosecutors who call this court to go to the lower People's Procuratorate in their jurisdiction to handle cases, including the prosecutors who call this court or other lower People's Procuratorate in their jurisdiction to handle cases." Second, there is not only internal relationship, that is, the effect of internal appointments, but also external relations, that is, the effect of external appointments, that is, the called prosecutor may handle a case either an internal matter or an external matter. Third, whether assigned or promoted, the called prosecutor can perform his duties on behalf of the procuratorate handling the case, including the prosecutor of the higher procuratorate handling the case on behalf of the lower procuratorate and the prosecutor of the lower procuratorate handling the case on behalf of the higher procuratorate. Fourth, the prosecutors under the call include not only public prosecution matters, but also other prosecutors, that is, "the called prosecutors can perform the prosecutors' duties of "appearing in court to support public prosecution, etc.," which means The called prosecutor can perform various prosecutor duties such as appearing in court to support public prosecution on behalf of the People's Procuratorate, which handles the case, because there is also a word 'etc.' In fact, the prosecutor who was called to a certain procuratorate and the prosecutor of the prosecutor of the court are in There is no substantial difference in performance of duties. The prosecutors in the court can do the jobs they can do, and the prosecutors who are called can do it."
Thus, the first question that needs clarification can obtain clear answers. Article 9, paragraph 2 of the Rules can be understood as: Prosecutors of lower-level procuratorates can represent higher-level procuratorates and handle cases in the name of "prosecutors", and do not need to downgrade to participate in case handling as "prosecutor assistant". Regarding this situation, the procuratorate interprets it: "The decision to call the prosecutor should clarify the legal identity of the prosecutor and the responsibilities and authority for handling the case. If the called prosecutor is a full-time prosecutor, he can be the representative of the handling of the case according to the needs of the case handling. The People's Procuratorate of the case performs its prosecutor's duties such as attending the court to support public prosecution in the case. "The decision to call the prosecutor mentioned here should clarify the legal identity of the prosecutor and the responsibilities and authority for handling the case, because the call Not only may be a prosecutor, but also a prosecutor.
In the procedure, if the lower-level people's procuratorate needs to call other people's procuratorates to handle the case, it shall report to the higher-level people's procuratorate for a decision. When a higher People's Procuratorate calls for prosecutors, it shall make a written decision and deliver it to the People's Procuratorate that handles the case and the People's Procuratorate where the person being called is located. However, this decision is a decision to call the prosecutors internally in the procuratorial system, and it is still unclear whether the decision will take effect externally. In addition, whether the People's Procuratorate, which represents the case, performs its procuratorial duties such as appearing in court to support public prosecution should be assigned by the procurator general of the court, needs to be further clarified. In this regard, the author believes that the following two practices should be chosen to make norms: First, the decision of the superior People's Procuratorate to call the prosecutor, which has internal effect, and appoints prosecutors to appear in court to support public prosecution, etc., and should be issued separately according to the litigation standards of the People's Procuratorate. "Notice of Sending a Person to Attend a Court" and served to the People's Court to clarify the qualifications of the called prosecutor to represent a specific procuratorate to participate in trial activities; if explanations are required, the call may be specified in the call decision of the higher People's Procuratorate in another place and the assignment may be specified in the call decision of the higher People's Procuratorate. The situation. Second, the decision of the higher People's Procuratorate to call the prosecutor has external effect. When the People's Procuratorate who is handling the case performs its procuratorial duties, the decision shall be used as the basis for appointing prosecutors to appear in court to support public prosecution. For this reason, the decision shall be given to The people's court shall transfer it to clarify the qualifications of the called procurator to participate in trial activities on behalf of the procuratorate and who needs to represent the procuratorate to participate in other litigation activities on behalf of the procuratorate, the call decision shall also be delivered to other agencies when performing their duties for the first time.Among the above two practices, if it is not clear which practice is used as the practical practice, the author believes that litigation activities should be carried out in the first practice. In judicial practice, there have been cases where higher-level procuratorates have decided to split joint crime cases and assign prosecutors of this court to perform their procuratorial duties such as invoking public prosecution on behalf of lower-level procuratorates. The lower-level people's procuratorate specially appointed the prosecutor as the "assistant procuratorial" of this court. The lower-level procuratorate appointed prosecutors with prosecutors of the higher-level procuratorate as the "assistant prosecutors" of the lower-level people's procuratorate. The jurisdiction of the lower procuratorate is included in the jurisdiction of the higher procuratorate. The general scope of the procurator of the higher procuratorate performs his duties includes the jurisdiction of the lower procuratorate, within this scope, the qualification to perform his duties, and to the lower level within the jurisdiction. The procuratorate has no prosecutor qualification and is not appropriate to perform its duties on behalf of it. Obviously, this temporary, low-appointment practice is also unnecessary. Fortunately, the "Prosecutor Law of the People's Republic of China" revised at the 10th Session of the Standing Committee of the 13th National People's Congress on April 23, 2019 has abolished the title of "Assistant Prosecutor" and temporarily appointed "Assistant Prosecutor" There is no longer a legal basis.
Who decides the decision on the instructions in handling cases is also a problem that needs to be solved. The author believes that the basis for judgment should be based on the belonging of the case. Prosecutors are called at a different place and at a different level. These prosecutors represent the procuratorate to which the case belongs. They should use the procurator general or the procuratorial committee of the actual case handling agency as the decision-making authority that evades; for example, the procurator general general general of the procuratorate at the same level to perform their duties on behalf of the procuratorate in the case handling agency. , the procuratorial committee of the actual case handling agency shall be used as the decision-making authority for recusation; if there is a special situation in which the procurator general of the superior procuratorate is called to the subordinate case handling, the procurator general or procuratorial committee of the superior procuratorate who is dispatched to decide whether he or she will evade. . For these technical issues, it is necessary to resolve them by revising the Rules or formulating regulations specifically guiding the dispatch of prosecutors at other places and levels, so as to provide an execution basis for the actual case handling of the procuratorate.
In short, calling prosecutors at different places to handle cases is a controversial issue in judicial practice. The views that need clarification arise from this issue deserve serious analysis. The author believes that this practice has legal basis and actual needs, and is not unconstitutional, nor does it damage the election and appointment system of the People's Congress, and is in line with the characteristics of the procuratorial system and the identity attributes of the procuratorial officer. The People's Procuratorate calls on elite soldiers to form a public prosecution team to undertake the accusation function. Just like the defense party selects domestic eloquent lawyers to form a defense team, it belongs to the category of staffing on one side. The purpose is to enhance the ability to provide evidence and debate, improve the level of public prosecution, and not hinder the The litigation principles, systems and rules set by the procedural law and the exercise of various litigation rights of the defense party does not add any special powers other than statutory powers to the accused party. Therefore, the author believes that this move does not have any problems with procedural fairness, does not harm legal professional ethics, and does not change the litigation structure.
(The original comments have been omitted because of the long length.)
Source: "Politics and Law" 2021 Issue 9
"Theme Discussion" column
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