China University of Political Science and Law
Dean and Professor of the Institute of Litigation Law
Xiong Qiuhong
■ The party group of the Supreme People's Procuratorate attaches great importance to procuratorial hearing work and puts forward the work requirement of "hearing as much as possible". Various localities have carried out the vivid practice of procuratorial hearing work, and the three-pronged approach of concept guidance, system construction, and material guarantees has made the "procuratorial hearing" a symbolic concept of the mainland's procuratorial organs' way of performing their duties, with distinct Chinese characteristics, an important measure for deepening procuratorial reform, and an important way to strengthen the legal supervision of procuratorial organs.
"Hearing" means hearing an opinion, and at its core is that a neutral third party hears the opinions of the parties, especially before a decision is made against the parties, and is regarded as an integral part of "natural justice". In the mainland, procuratorial hearings are a way for procuratorial organs to review cases, and are activities in which procuratorial organs, in the course of reviewing cases, listen to the opinions of parties, hearing witnesses, and other hearing participants on issues such as the determination of facts, the application of law, and the handling of cases, and on this basis make decisions on matters involving the rights and interests of the parties. Procuratorial organs may, as necessary for the handling of the case, decide to organize hearings and whether to conduct them in public, and may also conduct them on the basis of the parties' applications. The procuratorial hearing system is produced to meet the people's expectations for fair law enforcement and justice, and has been continuously improved and developed in practice, and high-quality procuratorial hearings are conducive to promoting the substantive resolution of social contradictions and disputes, minimizing social antagonism, maintaining social harmony and stability, and embodying the political position of "people-centered".
Establishment and development of the procuratorial hearing system
After the hearing system was introduced to the mainland in the 1990s, there were relatively perfect legal provisions and more practices mainly in the field of administrative law and legislation. At the beginning of the 21st century, prosecutorial organs began to apply the hearing system in criminal complaint cases. In May 2000, the Supreme People's Procuratorate issued the Provisions on Procedures for the Public Review of Criminal Appeal Cases of the People's Procuratorate (for Trial Implementation), clarifying that the review of criminal appeal cases is mainly carried out in the form of public hearings. Since then, some local procuratorates have carried out practical explorations on public hearings in cases that are not to be prosecuted. After the revision of the Criminal Procedure Law in 2012, a pilot public hearing was conducted around the review of the necessity of detention, and the procedure for reviewing and approving arrest was carried out in a procedural reform. These reforms have attracted widespread attention from the academic community. The Rules for the Supervision of Civil Litigation of the People's Procuratorate (for Trial Implementation) issued by the Supreme People's Procuratorate in 2013 stipulate that "if the People's Procuratorate reviews a civil litigation supervision case and deems it really necessary, it may organize a hearing for the parties concerned". The scope of application of the procuratorial hearing system has expanded from the field of criminal procedure to the field of civil litigation. In October 2020, the Supreme People's Procuratorate issued the Provisions on the Work of People's Procuratorates in Reviewing Case Hearings (hereinafter referred to as the Provisions on Hearing Work), which systematically stipulates the scope of hearing cases, the type of hearing, the participants in the hearing, the procedures for hearings, the effectiveness of the opinions of the hearings, and the management of funds for hearing activities. According to the above documents, administrative litigation supervision cases and procuratorial public interest litigation cases are also included in the scope of hearings. Procuratorial hearing work has gradually embarked on the road of unification, standardization, and normalization. The party group of the Supreme People's Procuratorate attaches great importance to procuratorial hearing work and puts forward the work requirement of "hearing as much as possible". Various localities have carried out the vivid practice of procuratorial hearing work, and the three-pronged approach of concept guidance, system construction, and material guarantees has made the "procuratorial hearing" a symbolic concept of the mainland's procuratorial organs' way of performing their duties, with distinct Chinese characteristics, an important measure for deepening procuratorial reform, and an important way to strengthen the legal supervision of procuratorial organs.
Theoretical basis for the procuratorial hearing system
With regard to the theoretical basis of the procuratorial hearing system, at present, most of the theoretical and practical circles have explained in terms of promoting judicial fairness, practicing judicial openness, accepting supervision by the masses, ensuring the people's right to know, the right to participate, and the right to supervise, following due process, and respecting and protecting human rights. To explore the theoretical basis of the procuratorial hearing system, that is, the basis for the legitimacy of the establishment of the system, it should be considered from the perspective of the procuratorial organs' own positioning and the nature of the procuratorial power. From this perspective, the basis for the legitimacy of the establishment of the procuratorial hearing system is mainly reflected in the following aspects:
First, the judicial power attribute of the procuratorial power determines that the procuratorial organs' review of cases should be conducted in a moderately judicial manner. Mainland academic and practical circles have conducted protracted discussions on the positioning of procuratorial organs and the nature of procuratorial power, and have formed different propositions such as the theory of administrative power, judicial power, dual attribute, legal supervision, and composite attribute. Since the Eighteenth National Congress of the Communist Party of China, with the in-depth advancement of the reform of the judicial system, the functions and powers of procuratorial organs have undergone major changes, the judicial and public interest nature of procuratorial power has been increasingly enhanced, and the academic community's understanding of the nature of procuratorial power has also undergone some changes, and the theory of composite attributes has gained more and more recognition. The 2021 Opinions of the Central Committee of the Communist Party of China on Strengthening the Legal Supervision of Procuratorial Organs in the New Era points out that "the people's procuratorate is the state's legal supervision organ, the judicial organ that guarantees the unified and correct implementation of national laws, an important force for protecting national interests and social public interests, and an important part of the state supervision system", which embodies the composite attribute theory. Judicial power is an integral part of the compound attribute of prosecutorial power. It is precisely for this reason that the exercise of procuratorial power should be carried out in a moderately judicial manner, and the hearing is a moderately judicial method between administrative written review and judicial trial.
Second, the procuratorial organs review cases and carry out hearings, in which the degree of participation of citizens (hearing personnel) is also a manifestation of a moderate judicialization. From the perspective of international law, the united Nations Guidelines on the Role of Prosecutors, which contain expressions such as "ensuring and promoting the effective, impartial and impartial role of prosecutors in criminal proceedings" and "enhancing the fairness and consistency of rulings made in the prosecution process, including rulings that are prosecuted and exempt from prosecution", point out the basic direction of procuratorial reform in various countries in a certain sense, and also make the professionalization and professionalization of procuratorial work inevitable. Although they do not universally implement the procuratorial hearing system, there are institutional forms for citizens to participate in the examination and prosecution activities, such as the grand jury system and the procuratorial review committee system. In different countries and regions, when courts try cases, they adopt methods such as the jury system, the trial participation system, and the trial observation system to participate in the administration of justice. When examining cases, mainland procuratorial organs invite people's congress deputies, CPPCC members, people's supervisors, people's mediators, experts and scholars, residents' committees, and villagers' committee representatives to serve as hearings, and "the opinions of the hearings are an important reference for the people's procuratorates to handle cases according to law." The procuratorial hearing system is similar to the observation system in terms of the degree of citizen participation, which is determined by the positioning of the procuratorial organs and the nature of the procuratorial power, and is also a form of moderate judicialization.
Third, whether or not the procuratorial organs choose to disclose or not when hearing a case is inseparable from the positioning of the procuratorial organs and the nature of their procuratorial power. In criminal proceedings, from the investigation, review and prosecution to the trial stage, the degree of openness is getting higher and higher. The investigation stage is based on the principle of confidentiality and disclosure as an exception, while the trial stage takes openness as the principle and non-disclosure as the exception, and the review and prosecution stage is between the investigation stage and the trial stage, and its degree of openness is medium, and it is biased to both ends according to the specific functions performed by the procuratorial organs. Pursuant to Article 5 of the Provisions on Hearing Work, hearings on proposed non-prosecution cases, criminal appeal cases, civil litigation supervision cases, administrative litigation supervision cases, and public interest litigation cases are generally held in public, while hearings on the review of arrest cases, review cases of the necessity of detention, and cases in which the parties are minors are generally not held in public. In addition to the fact that juvenile cases are not disclosed as a general rule, the above provisions reflect that the procuratorial organs choose to disclose cases when reviewing cases, which is closely related to the stage of litigation they are in in criminal proceedings.
Fourth, the duality of procuratorial identity provides a corresponding basis for legitimacy for the procuratorial hearing system. It is generally believed that procurators are representatives of the public interest, but in theoretical circles, there is a dispute over whether procurators are "state agents" or "citizen agents", which reflects the duality of procurators' identities, that is, "state agents" and "citizen agents" have both, and they uphold an objective and fair stance to safeguard both national interests and personal interests. Therefore, strengthening the democratization and transparency of procuratorial organs' handling of cases should become an important goal of procuratorial reform, and procuratorial hearings reflect procedural restrictions on the procuratorial organs' exercise of procuratorial power, which is conducive to ensuring the objective and fair position of procurators.
The complexity and simplicity of procuratorial hearing procedures
From the perspective of historical development, when examining cases, procuratorial organs adopt appropriate judicial hearings, especially public hearings, which is itself a procedural change in the way procuratorial organs perform their duties, that is, from simple procedures to relatively complex procedures, from linear administrative procedures to "small triangle" quasi-judicial procedures. For different types and different nature of cases, there are complexities and simplicities in trial procedures, and correspondingly, procuratorial hearing procedures should also be different from complicated and simple, so as to take into account the two value goals of fairness and efficiency. To this end, it is necessary to explore the standards for the separation of complicated and simple procuratorial hearings, especially public hearing cases, so as to achieve accurate diversion and appropriate procedures. Compared with trial procedures, based on the positioning of procuratorial organs and the characteristics of procuratorial power, procuratorial hearings should adopt more summary hearing procedures. From the perspective of trial methods, there are different methods such as on-site trials, live or recorded trials, and online trials, and correspondingly, procuratorial public hearings can also consider the coexistence of various methods. For live hearings, it is necessary to pay attention to the selection of specific cases, take into account the balance between protecting the interests of the parties, the public interest and the national interests, as well as the balance between costs and benefits, and pay attention to the effectiveness of live hearings. In the Internet era, in order to improve the efficiency of litigation and facilitate the people, we can also consider exploring online hearing methods. This method is not only applicable during the epidemic prevention and control period, but also can be considered in cases with appropriate conditions, such as conducting online detention necessity review hearings in order to avoid the risks that may arise from the long-distance escort of criminal suspects and defendants. On the whole, since procuratorial public hearings are "quasi-judicial procedures", they can be more flexible and diverse than trial methods.
Public prosecutorial hearings
Promote the substantive resolution of social contradictions and disputes
The procuratorial open hearing system contains two key words, "disclosure" and "hearing", and disclosure itself is not an end in itself, but an important means to ensure judicial fairness; hearings contain inherent requirements for fair procedures. Public hearings are conducive to safeguarding the lawful rights and interests of the parties, to the people's participation in and supervision of the judiciary, and to the organic unification of the "three effects" of case handling. Procurators preside over the public procuratorial hearing procedure, and participants include parties to the case and their legally-designated representatives, agents ad litem, defenders, third parties, relevant case-handling personnel, witnesses and evaluators, and other relevant personnel, and also invite hearing officers to participate. The parties interact in the given procedural space to jointly promote the substantive resolution of social contradictions and disputes. For procurators, in order to ensure the smooth progress of public hearing activities, procurators need to make a series of preparations before initiating the public hearing procedure, such as obtaining sufficient factual information, mastering considerable evidence, and clarifying the basis of corresponding laws and regulations. These preparations provide preconditions and basic conditions for procuratorial organs to make review decisions legally, reasonably, and effectively, ensure accurate supervision, and better perform their legal supervision duties.
The procuratorial hearing system provides parties and interested parties with the opportunity to fully express their opinions face-to-face, and through activities such as statements, defenses, debates, and cross-examinations, the disputed matters are more and more clear, which helps the parties and interested parties to rationally view the disputed matters and the results of their handling. The procurator presiding over the hearing directly listens to the opinions of all parties in person, and also listens to the demands of all parties, which helps to avoid partiality and partiality.
The procuratorial hearing system ensures that procuratorial power is exercised under the sun, which helps prevent black-box operations, prompts procuratorial personnel to exercise their powers cautiously, and enhances judicial credibility. In cases of public hearings, citizens may apply to observe the hearing, and the procuratorial organ may invite the media to observe the hearing; with the approval of the chief procurator, the procuratorial organ may, through the China Procuratorial Hearing Network and other public media, broadcast or record the hearing in graphic, audio, or video. Through these methods, the people's right to know and the right to supervise can be fully guaranteed. As an independent, objective, and neutral third party, the opinions expressed by the hearing officers can help the procuratorial organs more comprehensively, objectively, and accurately determine the facts, apply the law, and apply policies, and make independent and fair decisions on the handling of the case in accordance with law. In the procuratorial hearing procedure, procurators make full use of the advantages of confronting the parties on both sides to conduct a comprehensive and in-depth investigation and verification of the disputed matters, and the hearing officers interpret the law, reason, and mediate in a targeted manner, which is conducive to resolving disputes procedurally and substantively, untying the knots in the hearts of the parties, and achieving the conclusion of the case, the matter, and the people, so as to achieve judicial justice to the greatest extent and maintain social harmony and stability.
Transferred from: Supreme People's Procuratorate