Application of the re-designation of jurisdiction in the trial of criminal cases

Article 27 of the Criminal Procedure Law of the Mainland stipulates in principle the designation of jurisdiction. The lawful and reasonable application of the designated jurisdiction system is of great significance to eliminating undue interference and promoting judicial fairness. In practice, the designation of jurisdiction mostly occurs before the court accepts the case, and although it is not common to change the trial court through the designation of jurisdiction during the trial of the case, it is easy to be abused, and because such cases are relatively large, complex, and have a large social impact, it is very necessary to regulate their application. In fact, the Supreme People's Court is aware that the designation of jurisdiction is often abused in practice, so article 20 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China (hereinafter referred to as the "Interpretation of Criminal Procedure") promulgated in 2021 specifically emphasizes that only when it is more appropriate, the trial court can be changed by designating jurisdiction.

In principle, it is not appropriate to change the trial court by designating jurisdiction during the trial of a case. First, the statutory principle of jurisdiction requires the careful application of designated jurisdiction. In order to avoid, as far as possible, the occurrence of situations affecting the outcome of adjudication through the selection of courts, to reduce the impact of human factors on the administration of justice, and to prevent damage to judicial fairness and credibility, modern criminal procedure generally establishes the statutory principle of jurisdiction, and the designation of jurisdiction is allowed only on the basis of judicial impartiality in cases of necessity. Therefore, the principle of jurisdiction as the principle and the designation of jurisdiction as an exception have become the basic requirements of the modern criminal procedure jurisdiction system. Second, changing the trial court by designating jurisdiction during the trial process will lead to delays in the proceedings. Once the court has heard the case, the higher court will change the court of hearing by designating jurisdiction, which means that all the existing trials will be invalidated, and the indictment will be re-examined by another prosecutor's office, and then the case will return to the new court and start from scratch completely. Such litigation delays, on the one hand, will cause great waste of the limited judicial resources of the state, and on the other hand, lead to the protracted delay in the case and infringe on the right of the accused to a timely trial. Finally, in the process of trial, it is generally difficult to achieve better social results by designating jurisdiction to change the trial court. In the case that the case has already entered the trial procedure in accordance with the law, and the jurisdiction of the court that has been partially tried in the case is temporarily excluded by designating a jurisdiction to change the trial court, on the one hand, it is easy to think that the higher court does not trust the court hearing the case; on the other hand, it may also pursue some improper purposes through the transfer of jurisdiction, such as the poor effect of the existing trial due to the insufficient preparation of the prosecution party, and the attempt to achieve better trial results by designating jurisdiction to retry.

Since the designation of jurisdiction is a necessary supplement to statutory jurisdiction, it is not excluded that in special circumstances, even if the court has already heard the case, the higher court may change the trial court by designating jurisdiction. However, for cases being heard, the power of the higher court to change the trial court by designating jurisdiction should be strictly limited. Specifically, it is limited to the following statutory circumstances: First, the court or procuratorate that is handling the case is not suitable for continuing the trial because the leader of the unit needs to recuse himself, or if the case has an interest-related relationship with the unit. For example, in the case of Wang Chengzhong's suspected miscarriage of justice, because the court of second instance was the work unit of defendant Wang Chengzhong, the leader of the court and the judge who tried the case had a relationship of superior and subordinate and colleague with defendant Wang Chengzhong, and finally the provincial high people's court changed the second-instance court of the case by designating jurisdiction. Second, the judge and procurator handling the case were suspected of violating the law and committing crimes, especially those suspected of accepting bribes from the parties in this case. For example, in the opening trial of Wang Yongming's mafia-related case, Wang Yongming's defender reported the case in court, and the prosecutor demanded a bribe of 300,000 yuan from the defendant, thus questioning the credibility of the case to continue to be tried, and then the higher court changed the trial court by designating jurisdiction. Third, due to the force majeure incident and the inability to resolve it in the short term, it is difficult for the court to continue to hear the case. For example, if a court is unable to resume normal hearings in a short period of time due to a major disaster, it is difficult to form a collegial panel due to the death of a judge or a serious illness. In short, since the case has already entered the trial procedure, the court should be cautious about changing the trial court by designating jurisdiction, and there is no need to designate jurisdiction until it is a last resort; otherwise, it is suspected of abusing the designated jurisdiction for improper purposes.

In order to curb the abuse of designated jurisdiction, it is necessary to establish corresponding relief mechanisms. Although article 228 of the Interpretation on Criminal Procedure provides for jurisdictional objections, it is difficult to exert remedies for abuse of designated jurisdiction in practice. Compared with statutory jurisdiction, the jurisdiction objection to the designation of jurisdiction has its particularity, because: on the one hand, in terms of the basis of jurisdiction, the basis for the establishment of statutory jurisdiction is relatively clear, and the basis for which court with designated jurisdiction appoints the jurisdiction is relatively vague. On the other hand, the court that accepts the designation of jurisdiction is itself passive in obtaining jurisdiction, and whether or not it obtains the designated jurisdiction depends entirely on the higher court; once the decision of the higher court to designate jurisdiction is received, based on the supervision relationship of the higher court, the designated court with jurisdiction has no right to review the legitimacy of the appointment of jurisdiction by the higher court. Even if the parties raise jurisdictional objections, the court designated to have jurisdiction often confirms its own jurisdiction on the basis of the decision of the higher court to designate jurisdiction, and it is not questioned whether the decision of the higher court to designate jurisdiction is legal and legitimate. This means that under the current law and judicial interpretation, the parties' remedies for the designation of jurisdiction are basically in a state of failure. Therefore, in response to the jurisdictional objection to the designation of jurisdiction, it is necessary to give the parties a special remedy to allow the parties to raise objections to the court that made the decision to designate jurisdiction; if they are dissatisfied with the handling of their objections, they should also allow the parties to apply for reconsideration to the higher court of the court that made the decision to designate jurisdiction, thereby strengthening the supervision of the higher court over the designation of jurisdiction by the lower court.

In view of the fact that the case has entered the trial of the case, and the corresponding litigation legal relationship has been formed between the prosecution, the parties, the defender, the agent and the court, if the trial court is changed by designating jurisdiction, it will inevitably lead to changes in the relevant legal relationship. As far as the litigation-trial relationship is concerned, the prosecution initiates the trial and limits the scope of the trial, which is the effect of the litigation arising from the prosecution. Therefore, when changing the trial court by designating jurisdiction during the trial process, it is first necessary to solve the problem of how to deal with the prosecution's lawsuit. After the higher court has designated jurisdiction, although the jurisdiction of the case has been transferred, the constant effect of the indictment on the trial still exists; even if the court returns the case file and the indictment to the prosecution, the effect of the indictment on the court cannot be eliminated; and in the case where the court has served the indictment on the defendant and the defender, the effect of the indictment on the defendant and the defender will not disappear because the court returns the case file to the prosecution, thus the inherent contradiction that the effect of the indictment is still there but the court's jurisdiction has been lost. The resolution of this contradiction can be completely resolved only if the prosecution withdraws its complaint. Otherwise, after the designation of jurisdiction, the prosecution concerned sues again, resulting in a situation in which two lawsuits coexist. In the case of two successive prosecutions in a case, according to the jurisprudence of joint jurisdiction, the case can only be tried by the court originally accepted, thus making the designation of jurisdiction unable to achieve the purpose of transferring trial jurisdiction. Therefore, after the higher court has changed the trial court by designating jurisdiction, the defensive relationship that has been formed can only be concluded by the prosecution withdrawing the lawsuit.

As far as the defense-trial relationship is concerned, once the defender submits a power of attorney, law firm official letter and other defense procedures to the court, and the court serves the defender with the indictment, it means that a legal relationship between the defender and the court has formed a legal relationship between the defense and the court. Although the designated jurisdiction of the higher court transfers the jurisdiction of the court, the legal relationship between the defender and the court has not been extinguished. Moreover, after the designation of jurisdiction, a new defense relationship between the defender and the court designated with jurisdiction does not automatically form. In fact, after the designation of jurisdiction, the case file flows backwards from the court to the prosecution; in the case of a public prosecution case, the procuratorate that previously prosecuted needs to transfer the case file to the corresponding prosecutor's office of the designated court of jurisdiction, at which point the case re-enters the review and prosecution procedure, and then the case can reach the court designated as having jurisdiction after the prosecution. At this time, if the defender wants to establish a defense relationship with the designated court and participate in defense activities, he needs to submit a power of attorney, law firm official letter and other new defense procedures to the designated court. Only in this way can the legal relationship between the defender and the designated court be formed. Thus, for the original trial court, after the case has been assigned jurisdiction to other courts, although the jurisdiction has been transferred, the legal relationship between the court and the defender still exists;

In summary, for cases that have already entered the trial procedure, in view of the fact that the legal relationship between the three parties to the litigation and defense has already been formed, it is not appropriate in principle for the higher court to change the trial court by designating jurisdiction; if it is really necessary to change the court of jurisdiction, the court of first instance shall recommend that the prosecution withdraw the lawsuit, make a ruling to grant withdrawal of the lawsuit, or when the prosecution refuses to withdraw the lawsuit, make a ruling to terminate the trial, and return the case file to the prosecution, and at the same time send the ruling to withdraw or terminate the trial to the prosecution, the parties and the defender in accordance with law.

(The author is a professor and doctoral supervisor of the University of International Business and Economics) (Chen Xuequan)

Source: People's Court Daily