Overseeing Criminal Justice: The Supervisory Role of the Public Prosecution Service in China
| Published date | 01 December 2017 |
| Date | 01 December 2017 |
| DOI | http://doi.org/10.1111/jols.12060 |
| Author | Yu Mou |
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 4, DECEMBER 2017
ISSN: 0263-323X, pp. 620±45
Overseeing Criminal Justice: The Supervisory Role of the
Public Prosecution Service in China
Yu Mou*
The Chinese public prosecution service, the procuracy, is modelled on
the Soviet Union system and has been accorded the controversial
function of supervising other legal institutions in the criminal justice
system. Drawing upon my own empirical data on the prosecution of
crime in China, this article critically examines the way the power of
supervision operates from an internal perspective. It argues that the
power of supervision has been used as an institutional asset to secure
the interests of the procuracy by analysing its oversight of police
investigations and court decisions, the way prosecutors perceive
themselves, and the efficacy of the supervision in a comparative
context. The current status of the procuracy dictates that it is unable to
undertake the role of supervision to safeguard the criminal process.
INTRODUCTION
In his comparative study of prosecuting crime in Japan and the United States,
Johnson enumerates the valuable resources that Japanese prosecutors possess
and argues that the authority enjoyed by them is unmatched elsewhere.
1
It is
true that prosecutors in Japan benefit from a number of socio-political
advantages (such as extensive discretionary power, low crime rates, light
caseloads, quiescent politics, enabling law, and the absence of juries) in
620
*School of Law, SOAS University of London, Thornhaugh Street, Russell
Square, London WC1H 0XG, England
ym19@soas.ac.uk
I would like to express my gratitude to the four anonymous reviewers who offered me
valuable and constructive views in early versions of this article. I would also like to thank
Professor Jacqueline Hodgson for encouraging me to write this article and Professor
Stewart Field for editing the final version, making it more readable.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
facilitating their prosecution of crime.
2
However, when compared to their
counterpart in China, prosecutorial power in Japan may still be over-
shadowed. Chinese prosecutors do not have the favourable resources they
desire, yet they are accorded a supervisory function which enables them to
oversee all the law enforcement agencies, including the courts and the
police. This supervisory role makes the Chinese prosecution service, in
theory, the mightiest prosecution institution in the world.
The Chinese prosecution service, the People's Procuracy, is modelled on
the procuracy system in the Soviet Union, which is not limited to a
prosecution service, but is broadly defined as a legal supervisory body.
3
This
supervisory role allows the procuracy to engage with all critical stages of the
criminal process to ensure the legality of the performance of the criminal
justice institutions. This supervisory function encompasses criminal case
registration, investigations, trials, enforcement of criminal penalties, reviews
of death penalty cases, enforcement of coercive measures, and compensation
of victims.
4
These multiple roles have raised the question as to how the
procuracy reconciles its own duties and relationships with the other core
criminal justice institutions.
In China, the concept of the Iron Triangle, the coalition of the police, the
procuracy, and the judiciary, defines the three allies that dominate the
criminal justice system. Against this background, the supervisory power of
the procuracy is likely to create controversial dynamics within the tripartite
relationship. Fionda observes that the relationship between public prose-
cutors and other key characters in the criminal justice system is subject to the
underlying philosophy of the legal system and various causes of antagonism
and friction.
5
Thus, exploring the operation of the Chinese procuracy
provides an insight into intricate dynamics between the designated role of
prosecutors and the quintessential characteristics of a given legal system.
This article examines this unique function of the procuracy in China and
the way it exercises that power in criminal justice within a comparative
context. It analyses the institutional relations between the procuracy, the
police, and the judic iary by drawing on emp irical data from dai ly
prosecutorial practices. The fieldwork was carried out by myself over a
period of six months (including four and half months in 2012 and then a six
weeks' follow-up revisit at the same site in 2013) in China. The data was
621
2 However, Japan has introduced the Saiban-in system since 2009, in which six lay
assessors and three judges share the role of finding facts and sentencing: see T.
Katsuta, `Japan's Rejection of the American Criminal Jury' (2010) 58 Am. J. of
Comparative Law 497.
3 S. Shi and L. Guo, `Lenin's Supervisory Theory of Law and Chinese Procuracy' in
Law and the Development of Society, ed. J. Faubion (2003) 5, 6, 8.
4 K. Li and F. Zhang, `The Research on the Mechanism of Procuracy' in Research on
the Work Mechanism of Procuracy and Practical Issues, eds. P. Mu and Z. Zhen
(2008) 9.
5 J. Fionda, Public Prosecutors and Discretion: A Comparative Study (1995) 6.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
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