[author]Lin Xifen

[content]

The Reform and Prospect of Investigation Supervision and Cooperation Mechanism of Public Security Organs and Procuratorates

Author* Lin Xifen

Professor of KoGuan School of Law of Shanghai Jiao Tong University, Vice President of China Institure for Social-Legal Studies

Abstract：Under the guidance of the principle of “division of responsibilities, mutual cooperation and mutual restriction”, what kind of benign interaction mechanism of public inspection should be constructed has been the key issue of judicial reform. At present, under the direct requirements and indirect promotion of reform measures such as the trial-centered litigation system reform, the system of leniency on admission of guilty and acceptance of punishment and the remodeling of the internal units of procuratorial organs, the investigation supervision and cooperation mechanism emerged. The mechanism adopts the two-way mode of supervision and cooperation, and has been positively evaluated by police and prosecutors on the whole. However, there are still some practical problems such as formalization, passivity and insufficient or excessive cooperation of investigation supervision. These issues stem from the ambiguous relationship between supervision and cooperation, insufficient investment in human resources due to multiple factors, ineffective deployment methods and personnel selection processes that hinder full performance of their duties, as well as a lack of coordination between assessment indicators used by public security organs and procuratorates. In order to optimize and enhance the investigative supervision and cooperation mechanism, it is imperative to take investigation supervision as the logical starting point for configuring a beneficial interaction mechanism of public security organs and procuratorates, use substance and adequacy as measurement standards for testing the effectiveness of such an interaction, and ensure consistency as a crucial guarantee for its continuous operation.

Key words：Investigation Supervision; Cooperation; Benign Interaction; Supervision Dominant; Sufficiency

Procuratorial power and public security power are not in isolation from each other, but are closely linked, and together they construct a broad pattern of control. Therefore, it is of great significance for the improvement of the criminal justice system to establish and improve the mechanism of benign interaction between the public and procuratorial authorities. Since the 18th National Congress of the CPC, procuratorial organs have continued to strengthen and improve their guidance and supervision of investigations by public security organs, and initiatives to reform the mechanism of benign interaction between the public and the procuratorate have been put forward and widely practiced. For example, in February 2015, the Supreme People's Procuratorate issued the Opinions on Deepening Procuratorial Reform (2013-2017 Work Plan), proposing to "explore the establishment of a system whereby investigating authorities in major and difficult cases will listen to the opinions and suggestions of procuratorial authorities. A mechanism for supervising the criminal investigation activities of public security police stations was established." In July of the same year, the Supreme People's Procuratorate issued the Opinions on Strengthening the Work of Public Prosecution in Court, making it clear that it would "actively intervene in investigations to guide the taking of evidence. In major, difficult and complex cases, it adheres to the principles of appropriate scope of intervention, opportune timing of intervention and moderate degree of intervention, and by attending on-site investigations and discussions of the case, and in accordance with the standards for instituting public prosecutions, it offers opinions on the collection of evidence and the application of law, supervises the legality of investigative activities, and guides the investigating authorities to improve the chain of evidence and the system of proof". At the same time, at the practical level, the Supreme People's Procuratorate has also begun to explore pilot work on the stationing of procuratorates in public security, and the model of stationing procuratorates for investigative supervision is gradually taking shape and being widely applied.

How the mechanism for benign interaction between the public and the prosecution is set up depends on the positioning of the relationship between the public and the prosecution and the needs of the relevant criminal justice reform. In China, the principle of "division of labour, mutual coordination and mutual control" has laid the institutional foundation for a benign interaction mechanism between the public and the prosecution. A number of current reform initiatives in the field of criminal justice have contributed to a more reasonable mechanism for benign interaction between the public and the public prosecutors: First, the reform of the trial-centred criminal procedure system, which calls for the strengthening of pre-trial evidence control and the establishment of an integrated investigation and prosecution system of the prosecution. Secondly, after the reform of the supervisory system and the "four major procuratorates", legal supervision urgently needs a new support point for power and functional cohesion. Thirdly, specific reform initiatives such as lenient plea bargaining and corporate compliance have enriched the content of public-prosecutor interaction, but need to be complemented by corresponding interaction mechanisms in order to enhance the effectiveness of the reforms. To this end, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the Opinions on Improving and Perfecting the Mechanism of Investigative Supervision and Collaboration and Cooperation (hereinafter referred to as "Opinions") in December 2021, which made specific provisions on the content, mode and supporting guarantee mechanism of public-prosecutorial investigative supervision and collaboration and cooperation, not only absorbing the beneficial experience of the previous reform of the public-prosecutorial interaction mechanism, but also taking care of some of the deficiencies of the previous reform. However, what institutional model has been adopted at the normative level for the mechanism of public-prosecution investigation supervision and collaboration? What work programmes have been deployed in practice? What are the possible dilemmas of the approach at the normative and practical levels? Can it fulfil the requirements of prosecutorial reform? What improvements are needed? These questions need to be further analysed.

1. Background to the reform of the mechanism for supervising and collaborating with public prosecutors and investigators

1.1 Requirements for investigative guidance and control under the reform of the trial-centred litigation system

In 2014, the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China (CPC) adopted the Decision on Several Major Issues Concerning Comprehensively Promoting the Rule of Law (hereinafter referred to as the "Decision"), which called for the advancement of reforms of the trial-centred litigation system. To implement the requirements of the Decision, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly issued the Opinions on Promoting the Reform of the Trial-Centred Criminal Procedure System in 2016. This reform initiative has put forward requirements for the pre-trial procedures of criminal proceedings, especially the reshaping of the public-prosecutor relationship, i.e., the establishment of a grand prosecution pattern that integrates investigation and prosecution: Firstly, there is a need to strengthen the comprehensive, specific and in-depth constraints imposed by procuratorates on investigating authorities at the litigation stage to safeguard the quality of investigations; Secondly, procuratorates are required to assist and guide public security authorities to collect and fix evidence in accordance with the law and in a comprehensive manner, so as to enhance the efficiency of investigations. However, if the relationship between the public prosecutor and the procuratorate takes the form of a non-discriminatory relationship of constraints, it will be impossible to achieve this goal, and it will be difficult to realize a litigation structure in which "prosecution and defence are equal".

To this end, the Supreme People's Procuratorate has begun to continually improve the mechanism of benign interaction between the public and the procuratorate, with a view to strengthening guidance and control over investigative activities. One of the most important initiatives is the implementation of stationed procuratorships for investigative authorities. The stationed procurator model, which began as a pilot project in 2015 and has since been rolled out nationwide, usually involves setting up a stationed procurator's office in the law enforcement case management centre of a public security organ, where the procuratorate assigns relevant personnel to carry out specific duties. After years of practice, the stationed procuratorate has integrated investigative supervision, early intervention and other working mechanisms, providing useful experience for exploring a reasonable mode of controlling and guiding investigative activities, but there are still many problems as follows: Firstly, the specific positioning of the stationed procuratorate in the normative documents is not clear, and the understanding of the public prosecutor's philosophy is not unified. As a result, two modes of stationing have emerged in practice: one is to guide investigations, form prosecution-police linkages, and improve pre-trial quality; the other is to strengthen investigative supervision, safeguard human rights, and prevent wrongful convictions. Theoretically, there are also different perceptions of the positioning of the functions of the stationed procuratorate. One viewpoint is that the stationed procuratorate is a way for the procuratorial authorities to exercise their investigative and prosecutorial powers, and does not need to rely on legal supervision. Another view is that the role of the stationed procurator's office should be that of a supervisor rather than a co-operator. Secondly, the inadequacy of the stationing mechanism has made it difficult to discover, investigate and verify investigative and supervisory leads. The reason for this is that the work of the assigned procuratorate is relatively homogeneous, mostly procedural, and the effectiveness of supervision lacks rigidity. Thirdly, there is a substantive lack of mechanism operation. The lead-led model of stationed prosecutors may have the problems of "stationing but not inspecting" and the low motivation of the stationed staff, while the supervision-led model may have the problems of lagging behind and limited scope of application. These constraints limit the achievement of the goals of pre-trial procedural reform in the reform of the trial-centred criminal procedure system. In view of this, it is necessary to further deepen the supervision and guidance of investigative work by procuratorial organs, and to optimize and upgrade the stationed procuratorial model into a mechanism for investigative supervision and cooperation, in order to achieve the reform goal of "positively adapting to the requirements of the reform of the criminal procedure system that is trial-centred, and collaborating to build a criminal accusation system that is centred on evidence".

1.2 Reform of the Procuratorial System to Reshape the Investigative Supervision System

After the reform of the state supervision system, the power to investigate functional crimes was transferred to the supervision authorities, driving changes in the prosecutorial supervision system. In 2018, the Supervision Law was officially released, in which Article 11 assigns that the supervisory authorities are authorized to conduct investigations of "duty-related violations and crimes such as suspected corruption, bribery, abuse of power, neglect of duty, power rent-seeking, tunneling, practice of favoritism and falsification, as well as the waste of state assets". The scope of investigation by the procuratorial authorities is retained only for offences such as unlawful detention, extortion of confessions by torture and unlawful searches that violate the rights of citizens and undermine the fair administration of justice. Therefore, the legal supervision function previously supported by the power to investigate crimes on duty tends to weaken, adversely affecting the effectiveness of investigative supervision. From the following empirical data: according to the China Law Yearbook and the main case data released by the Supreme People's Procuratorate each year, the adoption rate of supervision of filing (withdrawal) for the whole year of 2016-2021 was not as good as that of 2010-2015, and the adoption rate of supervision of filing (withdrawal) for the years of 2020 and 2021 fell to less than 90 per cent. The adoption rates of supervision of correcting violations of the law for the years 2010-2014 were all above 90 per cent and most were above 95 per cent, while the 2015 to 2018 figures all fell to around 85 per cent. While the data for 2020 showed some improvement, with a 91.6 per cent adoption rate for corrective action supervision, the overall figures are not as good as those for 2010 to 2014.

In response to the above functional changes, procuratorial organs take this opportunity to promote the reform of internal organs and establish a new era procuratorial supervision system. In 2018, the Supreme People's Procuratorate implemented the "integration of arrest and prosecution" case handling mechanism, changing the situation under the "separation of arrest and prosecution" in which prosecutors of the arrest department interface with investigators, while prosecutors of the public prosecution do not understand the cases and investigative activities, resulting in the inability to guide and supervise investigative activities in a timely manner. In 2019, the Supreme People's Procuratorate issued a reform plan for its internal institutions, establishing a new legal supervision pattern with four major procuratorates for criminal, civil, administrative and public interest litigation. The criminal procedure supervision system needs to be reintegrated in terms of personnel and functions. In the supervision of investigations, problems such as inadequate control of the entrance to investigations, inadequate control of the investigative process, and lack of effective control over the exit of investigations still exist, and are incompatible with the need for high-quality development of the procuratorate's legal supervision work in the new era. Therefore, the Supreme People's Procuratorate has proposed "equal emphasis on punishment and governance", "promoting 'all control' by 'I control'", "win-win, all-win" and "handling cases in supervision, supervising in handling cases" and other new concepts of legal supervision, as an important instruction for the legal supervision work of the procuratorial organs, which is aimed at stimulating the subjective consciousness of the supervisors and supervisees, and establishing a co-operative and benign interactive relationship between both sides. The construction of a new system of legal supervision and the introduction of new concepts require the establishment of a new mode of interaction between the public security organs and the the procuratorial organs in the supervision of investigative work, i.e., the front-loading of the supervisory gateway, further bridging the distance between the public security organs and the procuratorial organs, and taking into account the reasonable demands of the public prosecutor guiding, supervising and controlling investigation and forensics, as expressed in the reform of "integration of prosecution and arrest".

1.3 Expansion of Public Security-Prosecution Interaction in Reforms such as Guilty Plea Leniency

The application of Guilty Plea Leniency, the implementation of a case quality evaluation system centred on "case - file ratio" and the enforcement of compliance reforms for enterprises involved in cases have expanded the content of public-prosecution interaction, and at the same time, there is an urgent need for a more stable and reasonable mechanism of benign interaction between the public safety and the public prosecutors as a platform for the implementation of the reforms, so as to form a mechanism for synergy and cooperation to achieve the objectives of the reforms.

Firstly, the benign interaction mechanism between the public safety and the public prosecutors can narrow the distance between two sides, promote timely communication and collaboration, and reduce the generation of unnecessary links and processes, thus reducing the "case-file ratio". 2020, the Supreme People's Procuratorate issued the "Procuratorate's Case Quality Evaluation Indicators", and constructed the case quality evaluation index system centred on"case-file ratio". The higher the ratio between "case" and "files", the more judicial resources and human and material resources are spent, but the lower the quality of the case. Therefore, only by reducing the derivative procedures and avoiding unnecessary backflow procedures, making the quality of the necessary links exquisite in the early stage, and conducting timely and sufficient interpretation of the law and reasoning in response to the results of the case, is it possible to avoid the generation of unnecessary links, shorten the processing time of the case, and press for the enhancement of the quality of the case and the improvement of the efficiency of the case. For example, since the establishment of a regional investigation supervision and collaboration office, the procuratorate arranged for post prosecutors on duty, carry out supervision and communication for investigative activities of 41 criminal cases, systematically sort and communicate about the region's common types of crime, extend the early intervention into the stage of the investigation for major, difficult, complex cases, and communicate with investigators about the legality of the forensic and the effectiveness of the evidence, which actually reduced the "back fill" rate of cases, and the "case - file ratio" fell by 0.49 per cent compared with last year.

Secondly, the mechanism of positive interaction between the public safety and the public prosecutor can enhance the effect of Guilty Plea Leniency by promoting further collaboration between the public safety and the public prosecutor. With the deepening of the reform of case seperaring, "simple cases are examined quickly, complex cases are examined carefully" has gradually become the main pattern of criminal case handling. Benign interaction between the public safety and the public prosecutor can lead to the early implementation of plea education, so that the prosecuting organs can screen plea and punishment cases in advance, and stream the cases into simple and complicated ones, which will help the court to concentrate its advantageous resources on the trial of difficult and complicated cases. For cases of guilty pleas and penalties, the trial staff can appropriately simplify the proceedings, focusing on reviewing the voluntariness of the plea, the authenticity and legality of the content of the plea agreement，etc.. For example, after the implementation of the mechanism of public-prosecution investigation supervision and collaboration, in the theft case committed by Han and other three people, handled by Shanxi Province, Taiyuan City Public Security Bureau, Wamblin Branch, after common consultation and research between the public safety and public prosecution, the public security authorities finally adopted the prosecutor's opinion that although the case was a joint offence, the circumstances of the offence were minor and the perpetrators had pleaded guilty and accepted the penalty, so there was no need for arrest and the case could be referred directly for examination without requesting arrest. Later, the court applied the expedited procedures to the trial, and the three defendants were sentenced to fines.

Third, the benign interaction mechanism between the public safety and the procuratorate can provide a platform for the procuratorate to intervene in enterprise-related cases in advance, lay the foundation for the application of enterprise compliance, and achieve the purpose of optimizing the business environment. The further advancement of the reform requires strengthening the coordination between the public safety and the procuratorate, that is, the procuratorate needs to intervene in the investigation in a timely manner, and initiate the compliance necessity review in advance during the investigation stage and the review of arrest, so as to lay the foundation for the subsequent review and prosecution stage of the application of the corporate compliance system. At the same time, the compliance reform of the enterprises involved in the case requires the procuratorial organs to strengthen legal supervision, effectively supervise the investigation of suspected violations and crimes by private enterprises, protect the legitimate rights and interests of private enterprises, and optimize the business environment. For example, the procuratorial organs of Hohhot City have relied on the mechanism of public procuratorate investigation supervision and coordination to move forward the supervision port, deepen the protection of enterprises, and promptly supervise and correct the public security organs' failure to file cases, correct guilt, and their improper identification of economic disputes as economic crimes, so as to create a good business environment for private enterprises. In another example, the People's Procuratorate of Dafang County, Bijie City, together with the County Public Security Bureau, jointly issued the "Implementation Measures on Supporting the Compliance Construction and Cooperation of Enterprises Involved in Cases", which clarifies that after the public security organs file a case involving an enterprise, they should promptly contact and communicate with the Office of Investigation Supervision and Cooperation, and the procuratorate will intervene in the case in a timely manner according to the specific circumstances of the case and put forward opinions on investigation and evidence collection.

2. The implementation of public security investigation supervision and cooperation mechanism

In order to understand the practice of the supervision and cooperation mechanism of public security investigation, this paper conducted a questionnaire survey on 48 prosecutors and 127 public security personnel. All 48 prosecutors were from S city. S city is a developed municipality in the eastern part of China.Since the reform of the investigation supervision and cooperation mechanism of public security organs, 16 district-level and iron procuratorates in the city have established investigation supervision and cooperation offices with public security organs. According to statistics, 30 of the 48 respondents are engaged in criminal prosecution, 25 have worked in the procuratorate for 3-10 years, and 18 have worked in the procuratorate for 10-20 years. Most of the 127 public security personnel are from J province. J province is a developed province in the eastern part of China.Since the reform of the public security investigation supervision and cooperation mechanism, the investigation supervision and cooperation office has been basically covered at the city and county levels. According to statistics, 107 of the 127 respondents were from grassroots agencies, 16 from municipal agencies, and 4 from provincial agencies. 10 people have worked in the public security organs for 10-20 years, 16 people have worked in the public security organs for 3-10 years, 82 people have worked in the public security organs for 1-3 years, and 19 people have worked in the public security organs for less than 1 year. Based on the ' opinions ', the questionnaire results of the actual participants in the reform of the public security organs and the practice of other regions, this paper analyzes the implementation of the supervision and cooperation mechanism of the public security organs.

2.1 Coordinating and balancing the supervision and cooperation mechanism, the overall evaluation of public prosecution is higher.

Compared with the traditional procuratorial stationing, the " opinions " have adjusted the benign interaction mode of public security organs and procuratorial organs, and established the working methods of " supervision and restriction balance, " " two-way cooperation, " " cooperation in supervision " and " supervision in cooperation " in terms of norms. Traditionally, whether it is dominated by the concept of supervision or the concept of guidance, the direction is from the procuratorial organ to the public security organ. The supervision and cooperation mechanism of public security investigation adopts a two-way interactive mode.First, the two-way interaction of the subject. The supervision and cooperation mechanism of public prosecution investigation is not a simple stationed prosecution, but an interactive working mode jointly established by the public prosecution. Second, whether it is a supervision mechanism or a coordination mechanism, its direction is also two-way : the investigation supervision mechanism is the combination of the supervision and investigation of the procuratorial organs and the restriction and supervision of the public security organs ; the cooperation mechanism is that the public prosecution cooperates with each other, not that the investigation organ cooperates with the procuratorial organ in one way. Third, the relationship between supervision and cooperation is ' cooperation in supervision ' and ' supervision in cooperation ' : on the one hand, cooperation is the way to realize investigation and supervision. For example, in ensuring the effectiveness of investigation and supervision, ' opinions ' require the procuratorial organs to investigate and verify the supervision clues, and the public security organs should cooperate with them ; for the supervision opinions and procuratorial suggestions put forward by the procuratorial organs, the public security organs should correct the rectification in time and notify or reply to the people 's procuratorate. On the other hand, problems should be found in cooperation and supervision should be carried out in time. For example, in the mechanism of listening to opinions in major and difficult cases, the procuratorial organs can send personnel to review the evidence materials, and put forward opinions and suggestions on the issues of case characterization, evidence collection and legal application. The public security organs should further collect evidence materials in time, improve the evidence system, and correct the investigation behavior problems pointed out by the procuratorial organs in time.

The personnel of the public security organs have given a relatively high evaluation to the new public security benign interaction mechanism. In the questionnaire of public security personnel, 66 people think that the supervision and cooperation mechanism of public security investigation is helpful to public security work, accounting for 51.97 %. 31 people thought it was very helpful, accounting for 24.41 %. ( See Fig.1 ) Most public security personnel believe that the supervision and coordination mechanism of public security investigation can play a role in evidence collection, fact finding and compulsory measures, accounting for 74.8 %, 72.44 % and 55.91 % respectively. ( See Fig.2 ) For the supervision of filing and dismissing cases, a total of 58.27 % of public security personnel believe that the effect has reached a relatively good level. In the questionnaire survey of prosecutors, 72.91 % of them think that the supervision and cooperation mechanism of public prosecution investigation is helpful and very helpful to the work of procuratorial organs.