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What Does the PRC Procurators Law Say?

Fri, 17 Apr 2020
Categories: Insights

What Does the PRC Procurators Law Say?

 

China's Procurators Law(中华人民共和国检察官法) was enacted in 1995 and amended three times respectively in 2001, 2007 and 2019.

The current PRC Procurators Law consists of 70 articles, the core parts of which include: (1) the duties, rights, and obligations of procurators; (2) the qualification requirements and selection of procurators; (3) the appointment and removal of procurators; (4) management of procurators by procuratorial organs; (5) evaluation, awards and punishment of procurators; and (6) safeguards for professional rights of procurators.

We'll introduce some interesting parts of the PRC Procurators Law.

1. What do procurators do in China?

Chinese procurators have the following powers:

(1) to investigate criminal cases directly accepted by the procuratorates as provided by law;

(2) to conduct the review for approval of arrest and review for prosecution in criminal cases, and represent the state to initiate public prosecutions;

(3) to initiate public interest litigation;

(4) to supervise the criminal investigation by public security organs and the trial by courts in criminal, civil and administrative proceedings.

2. Who can serve as a procurator?

To serve as a procurator in China, the following substantive requirement must be satisfied:

(1) to be of the nationality of the People’s Republic of China;

(2) to have a bachelor’s degree or other higher degrees in law major from higher education institutions;

(3) to have a bachelor's degree or other higher degrees not in law major from higher education institutions but with a Juris Master’s degree (J.M.), a degree of Master of Laws (LL.M.), or other higher degrees;

(4) to have a bachelor's degree or other higher degrees not in law major from higher education institutions but with professional knowledge of law;

(5) to have engaged in legal practice for at least five years; but the requirement for minimum working years for the legal practice can be relaxed to 4 years in the case of getting a Juris Master’s degree (J.M.) and a degree of Master of Laws (LL.M.), or 3 years in the case of getting a Doctor of Laws degree;

(6) to pass the national unified legal professional qualification examination to obtain the legal professional qualification.

The amended PRC Procurators Law in 2019 lifted the minimum age limit for procurators, which was previously 23. Instead, professional thresholds for procurators in the aspect of educational background and working years of their legal practice have been raised. According to China's normal education pattern, it usually takes much time at least at the age of 27 to reach such thresholds.

A new provision in the amended PRC Procurators Law in 2019 allows lawyers and jurists to serve as procurators, among which lawyers should practice law for no less than five years. However, up to now, no lawyer has been selected as a prosecutor to our knowledge.

3. Who can't serve as a procurator?

These persons cannot serve as procurators if:

(1) having been subject to criminal punishment for committing a crime;

(2) having been discharged from public service;

(3) having been invoked the certificates for legal practice as a lawyer or a notary public, or having been removed from an arbitration commission.

4. What can't a procurator do?

A procurator:

To start with, below are a list of things that a procurator is not allowed to do:

(1) A procurator may not concurrently serve as a member of the Standing Committee of National People's Congress, but may be elected a deputy to the National People's Congress;

(2) A procurator may not concurrently hold the posts at administrative organs, supervisory organs or procuratorial organs;

(3) A procurator may not concurrently hold the posts of an enterprise or other for-profit organizations or institutions;

(4) A procurator may not concurrently serve as a lawyer, an arbitrator or a notary public.

The procurator shall recuse himself/herself from the trial in his/her procuratorate where he/she serves as a procurator if the procurator's spouse, parents or children:

(1) serve as a partner or founder in a law firm within the jurisdiction of the procuratorate where the procurator serves, instead of acting as a non-partner lawyer of a law firm;

(2) serve as an agent ad litem or defender as a lawyer within the jurisdiction of the procuratorate where the procurator serves, or provide other paid legal services for the parties to legal proceedings, instead of providing free legal services, or handling matters other than the legal proceedings.

After resigning from the procuratorate, a procurator may not act as an agent ad litem or a defender in the lawsuit accepted by the procuratorate where he/she used to serve, except where he/she serves as an agent ad litem or defender as the guardian or close relative of the party.

5. How to appoint procurators?

The president of procuratorates at each level shall be elected or removed by the people's congress at the same level, and the vice presidents, members of the procuratorial committee, and procurators shall be appointed or removed by the standing committee of the people's congress at the same level upon the proposal of the president of those procuratorates.

If a person is appointed as a procurator for the first time, the procurator election committee in provincial-level procuratorates shall first examine the professional competence of candidates for the procurator recruitment, and then the best candidates will be appointed as procurators by the Standing Committee of the National People's Congress at the corresponding level.

The procurators in their first term shall firstly serve in the primary people’s procuratorates. The procurators of the intermediate people’s procuratorates will be selected from the procurators in the primary people’s procuratorates, while the Supreme People’s Procuratorate and the high people’s procuratorates can select procurators from any procuratorate at a lower level.

 

 

Cover Photo by Zhimai Zhang(https://unsplash.com/@zimai_photo) on Unsplash

Contributors: China Laws Portal Team

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