Criminal defense lawyer

The Chinese agency responsible for prosecuting criminal cases is called  renmin  jiancha  yuan,  officially  translated  as  the  People's Procuratorate.  The procuratorate’s historical roots go back 2,000 years to imperial China. Chinese emperors employed an official with the titleYu Shi, often translated as "imperial censor" or "imperial secretary,"  who acted as the eyes and ears of the emperor and reported any misconduct or corruption by government officials. Gradually, this position evolved to the role of public prosecutor in cases involving crimes committed by government officials. The Yu Shi also exercised a supervisory role over the judiciary, ensuring that judges acted according to the law. 

As presently constituted, the procuratorate is one of five branches of government operating under the authority of the National People's Congress  and  its  standing  committee.  The  other  branches  are the presidency, the State Council (headed by the premier), the judiciary, and the military. In theory, the procuratorate is charged with ensuring that the other civil branches of government, namely, the executive branch and the judiciary, act according to the law. In addition to its supervisory role over all aspects of civil government, the government’s procurators are solely responsible for deciding whether someone should be formally arrested(dai bu) and formally charged (qi song).

 

In the United States, criminal system has led to the creation of at least 51 state-specific criminal codes and criminal procedures. Under China’s central government model, the criminal justice system is more uniform throughout the country, with just one criminal code and one criminal procedure law.

 

Like most Chinese government bodies, the procuratorate consists of a hierarchy, with the Supreme People’s Procuratorate (SPP) at the top.  The  SPP  handles  matters  in  the  Supreme  People’s  Court  and reports  directly  to  the  National  People’s  Congress  and  its  standing committee. Beneath the SPP are lower procuratorates that correspond to the lower levels of local government. These  procuratorate  offices  interact  according  to  hierarchy. China’s criminal procedure law permits two trials and an appeal by either side from the verdict of the second trial. Generally, each successive proceeding must be brought at the next highest level.  For example, a case  initiated  at  the  county  level  will  be  handled  by  the  county procurator’s office in the Basic People’s Court of that county. If there is a second trial, it will be heard at the Intermediate People’s Court, where the case  will  be  handled  by  the  city  procuratorate.  An  appeal  would  be handled by the provincial procuratorate. Any further proceeding would be in the Supreme People's Court, with the prosecution represented by the Supreme People's Procuratorate.

 

The  role  of  the  Supreme  People’s  Procuratorate  is  primarily policymaking, although it does handle appeals from the decisions of Provincial People’s Courts. The SPP rarely handles trials—the last trial conducted by the SPP was that of the Gang of Four in 1979. The SPP also  provides  advice  and  guidance  to  the  provincial  procuratorates, maintains a publishing house, and has a website (at www.jcrb.com) that is updated several times a day.

 

The SPP also publishes non-binding interpretations of the law that guide procurators nationwide, while the Supreme People’s Court (SPC) publishes binding interpretations and the Public Security Bureau (PSB) publishes advisory interpretations. These interpretations are important because Chinese legislation, particularly criminal legislation, is often vague. Determining what constitutes a criminal and capital offense can turn on interpretations of phrases such as “serious,” “large amount,” or “special circumstances.” Second, China’s legal system is a civil law system, as opposed to a common law system, with only statutory law, not case law. Judges' decisions  are  usually  not  accompanied  by  written  legal  opinions explaining their reasoning.  Moreover, judicial decisions do not have any legally   binding   precedential   effect   on   other   cases.   Thus,   the interpretations by the SPP, the SPC, and the PSB are important guides for practicing procurators, lawyers, and judges.

 

Most criminal offenses in China are investigated by the Public Security Bureau, which is part of the executive branch of government. Criminal offenses committed by government officials, employees, and agencies, however, are investigated directly by the Procuratorate.8 The procuratorate’s anti-corruption unit conducts investigations of bribery, embezzlement, and other public corruption. The procuratorate also has a government  employees’  misconduct  unit,  which  investigates  other criminal  conduct  committed  by  government  workers  in  their  official capacity.  Cases  of  abuse  of  power,  dereliction  of  duty,  and  police brutality  are  investigated  directly  by  this  unit  of  the  procuratorate.  In addition to these two units, each procurator’s office also has units that handle “arrest approval” (usually reviewing daibu requests made by the police), criminal prosecution, citizen complaints, appeals and petitions, research, internal discipline, and administration.

 

Apart from the official structure of the government, the PRC also recognizes the leadership role of the Chinese Communist Party in all facets of government and society. In the criminal justice system, this fact manifests itself in the existence of party committees of political and legal affairs  at  all  levels  of  government.  Traditionally,  the  head  of  the committee has been the head of public security for the area, with the chief procurator and the chief judge beneath him. Thus, the Chinese Communist Party unquestionably still exercises institutional influence over the operation of the legal system in general and the criminal justice system in particular.

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