Starter | Wu Tong: Geographical restrictions and exceptions for the performance of duties by Japanese procurators

Geographical limitations and exceptions for the performance of duties by Japanese prosecutors

Author: Wu Tong, Ph.D. candidate in Litigation Law, Peking University Law School.

Source: First published in Frontiers of Legal Studies.

Recently, the issue of the transfer of procurators in different places has aroused heated discussion. In the debate between different scholars and lawyers, the practice of criminal justice practice in Japan has become a point of controversy that deserves in-depth discussion. In the article "Procuratorial Integration, Ignorance of party history", "Japan recognizes procuratorial integration but clarifies the geographical restrictions on the performance of procurators' functions" is one of its arguments that civil law countries cannot naturally "call procurators from different places". Professor Zhang Jianwei responded to this view from the logical relationship of argumentation, that is, "the integration of procurators does not mean that there is no clear geographical restriction on the performance of procurators' functions." The question that arises from this is whether Japanese prosecutors have any geographical scope restrictions when performing their duties. Are there exceptions to such geographical limitations? Can the principle of the unity of procurators provide a normative basis and theoretical support for the transfer of procurators in different places? This paper intends to conduct a preliminary investigation of this issue on the basis of relevant norms and practical precedents of Criminal Justice in Japan, in order to provide some extraterritorial reference for the continued discussion of the issue of "different levels of procurators" in different places.

1. When Japanese procurators perform their duties

Whether there is a geographical restriction

Article 5 of japan's Procuratorial Office Act stipulates: "Procurators, regardless of which procuratorate they belong to, shall, unless otherwise provided by law, perform the duties provided for in the preceding article in respect of matters within the jurisdiction of the court to which they belong in the area of court jurisdiction to which they belong." Judging from the formulation of this article, japanese procurators not only have geographical limitations in the performance of their duties, but also have a corresponding relationship with the territorial jurisdiction of the courts. Regarding the provisions of this article, the Japan Institute of Justice made the following explanation in the 2019 study textbook of the Prosecutor's Office Law (7th Edition): "The exercise of procuratorial power is subject to the jurisdiction of the court corresponding to it, and unless the law has special provisions (such as article 35 of the Fugitive Extradition Law), the procuratorate to which the prosecutor belongs shall follow the restrictions on the jurisdiction area and jurisdiction matters of the court corresponding to it." For example, at the level, the only person who can file a public prosecution with the Tokyo District Court is the prosecutor of the Tokyo District Prosecutor's Office, and the only person who can file a public prosecution with the Tokyo District Court can be a prosecutor of the Tokyo District Prosecutor's Office. "Geographically, if a person with a domicile in Sapporo City commits theft in Chiyoda-ku, Tokyo, the jurisdictional court shall be the Sapporo District Court, the Sapporo Simple Court, the Tokyo District Court, and the Tokyo Simple Court. If the person is detained, the place of detention is the Hachioji Police Station and is still here at the time of the prosecution. Then, the Eighth Prince's "location" gives the Eighth Prince's Summary Inquisition jurisdiction as well. Therefore, it is considered lawful for prosecutors to sue in the above five courts, but it is illegal to prosecute to other regional courts.

Moreover, the restrictions on the performance of duties by prosecutors under article 5 of the Law of the Prosecutor's Office have the effect of procedural sanctions. On the issue of "whether the district prosecutor's indictment with the district court is valid", the Fukuoka District Court of Japan pointed out in its judgment on September 13, 2033 that "according to the indictment, the public prosecution in this case was raised by the Fukuoka District Prosecutor's Office's Inspector General (the "Procurator" in the Japanese procuratorial system was created to solve the problem of insufficient procuratorial personnel, and the "procuratorial officer" in the district prosecutor's office replaced the "procurator" in the district prosecutor's office to perform his duties. Unlike the "prosecutor's office" who simply assists the prosecutor in handling or investigating cases, the clerk has the authority to handle cases independently) According to Article 5 of the Prosecutor's Office Act, the Fukuoka District Prosecutor's Office can only file a public prosecution with the Fukuoka Summary Court. Therefore, in this case, the Fukuoka District Prosecutor's Office's act of prosecuting the Fukuoka District Court not only violated the law, but the act would result in the prosecution proceedings being declared invalid in violation of Articles 4 and 5 of the Prosecutor's Office Act. Subsequently, the prosecutor who appeared in court applied to revise the content of the indictment by changing the "Fukuoka District Prosecutor's Office" to "Fukuoka District Prosecutor's Office" and "Fukuoka District Prosecutor's Office" to "Prosecutor". In this regard, the court held that there was no possibility that the indictment of this case clearly recorded the above facts, and that the matter had an important impact on whether the act of public prosecution was valid. Even if there is a miswritten error, the prosecutor's request for amendment should not be agreed to as a material flaw in the indictment. It can be seen that in judicial practice, the provisions of article 5 of the Procuratorate Law directly affect the legality of procurators' acts of initiating public prosecutions.

2. Are there exceptions to the geographical limitations for prosecutors in the performance of their duties?

The geographical restrictions on the performance of duties by Japanese procurators do not strictly prohibit procurators from handling cases across regions, and in practice, there are often phenomena of procurators performing their duties across regions and procurators from different regions assisting each other, but the emergence of the above phenomenon has nothing to do with the "principle of the unity of procurators", but is a side effect of judges' cross-regional performance.

On the question of whether there is an exception to the territorial jurisdiction of procurators, according to article 5 of the Law on the Prosecutor's Office, procurators shall, in principle, exercise their functions and powers within the jurisdiction of the court corresponding to the procuratorate to which they belong. However, article 12 of the Japan Code of Criminal Procedure stipulates: "In order to investigate and discover facts, the court may perform its duties outside its jurisdiction." The same applies to judges. "Accordingly, judges may perform their duties outside the territory of their jurisdiction. As a judge carries out seizures, searches, inquests, and questioning of witnesses, prosecutors have the power to participate and witness as litigants (articles 113, 142 and 157 of the Japan Code of Criminal Procedure). Therefore, when judges carry out searches, seizures, inquests and examinations of witnesses outside their jurisdiction, the area in which procurators perform their duties expands with the judges. However, it is worth noting that if Judge A goes to Place B, which has no jurisdiction, the authority of District A Prosecutor will be extended to Place B along with the judge of District A, but Prosecutor B still does not have jurisdiction over the case and cannot perform his duties on matters related to the case.

On the question of whether the different offices of the Public Prosecutor may assist each other, the Prosecutor, the Prosecutor and all staff of the Public Prosecutor's Office, regardless of which One they belong to, are in principle that the affairs of the Office shall be dealt with. However, in view of the particularity of the matters dealt with by the Prosecutor's Office, article 31 of the Public Prosecutors Act stipulates: "The staff of the Public Prosecutor's Office shall provide the necessary assistance to other staff of the Public Prosecutor's Office in connection with the work they are dealing with." "In daily work, the entrustment system between prosecutors is one of the manifestations of mutual assistance. The so-called "work" of assisting other prosecutors' offices is not the work of other prosecutors' offices, but the work of the prosecutor's office to which the staff member belongs, which shall still be limited by article 5 of the Public Prosecutors Act. For example, if a judge from Region A goes to Region B to question witnesses, the prosecutor of District B does not have the authority to do so even if the procuratorate of District A, corresponding to the court of District A, entrusts prosecutor of District B to participate in and witness the questioning activity. The reason is that in this entrusted matter, the court of place B itself does not have the authority to question witnesses, and the procuratorate of place B naturally does not have the authority to participate in witnessing. However, if the court of place A entrusts the court of place B to question witnesses, the procuratorate of place A can entrust the procuratorate of place B to give it corresponding powers.

III. The principle of the unity of procurators does not give a superior procurator the final decision to call a procurator in a different place

Article 12 of the Law on the Public Prosecutor's Office stipulates: "The Attorney General of the Supreme Prosecutor's Office), the Chief Prosecutor (the Prosecutor General of the High Prosecutor's Office) and the Prosecutor General (the Chief Prosecutor of the Local Prosecutor's Office) may handle the affairs handled by the Procurator under his command and supervision by him or by other procurators under his command and supervision. Although this article is a normative manifestation of the "principle of the unity of procurators", there are still certain problems in using this to justify the practice of "calling procurators in different places".

First of all, the subjects of procuratorial powers provided for in articles 4 and 6 of the Law on the Office of Prosecutors are "procurators". Therefore, the main body of the exercise of procuratorial power should be the procurator, each procurator has independent and complete procuratorial authority, and Japanese procurators are also known as "organs of the one-man system". Although according to the principle of the unity of procurators, the superior procurator has the power to command and supervise, it is not illegal for the procurator to violate the command and supervision of his superior (whether or not he violates the relevant provisions on the punishment of civil servants depends on the specific circumstances). The presence or absence of an organ seal on the indictment submitted by the prosecutor does not affect the validity of the indictment. Japanese scholars believe that the main body of power of conventional administrative organizations is unique, while the subjects of power in procuratorial organizations belong to procurators, which is the essential difference between procuratorial organizations and administrative organizations. Therefore, the command and supervision power of the higher-level procurator does not have the decisive effect.

Second, even if the procurator has an independent authority, the procuratorial power still has an administrative power attribute. Therefore, in the process of exercising the procuratorial power, there must be a requirement for the uniform exercise of power, especially in matters related to the basic rights and obligations of the nationals, there must be a unified standard for the exercise of power to restrain the procurator. The principle of the unity of prosecutors, whose purpose is to "exercise prosecutorial powers in a balanced and proper manner", is seen as an effective response to the above-mentioned problems.

Finally, there is no conflict between the principle of the unity of prosecutors and the attribution of prosecutorial power to the individual prosecutor. Japanese scholars believe that the two are not opposed, and the so-called conflict can be reconciled. For example, on the issue of whether to prosecute or whether to protest against a first-instance judgment, when there is a difference in the opinions of the procurator and the superior, it is not a question of whose opinion can only be chosen, but the two sides should communicate with each other, adjust each other's opinions, and finally form a consensus. This practice is actually to leave the macro coordination of the two to the professional ethics of prosecutors.

From the above analysis, it can be seen that Japanese procurators do have geographical restrictions corresponding to judges in the process of performing their duties, and such geographical restrictions can usually only be expanded in individual cases according to the specific circumstances of the expansion of judges' powers. Prosecuting a prosecutor in violation of the territorial restrictions directly undermines the legality of the prosecution. This is the normative content and practical effect of article 5 of the Law of the Prosecutor's Office. At the same time, Japanese procuratorial theory and practice also affirm the positive significance of the principle of the unity of procurators, and the Procuratorial Office Law also gives higher-level procurators the power to direct lower-level procurators to handle cases. However, it is worth noting that the "principle of procuratorial identity" in the Japanese procuratorial system does not give higher-level procurators absolute control over lower-level procurators and the final decision on related matters. Japanese procurators are independent subjects of procuratorial power and can resist the command and supervision of higher-level procurators. The purpose of the principle of the unity of procurators is to "standardize the standards for the exercise of procuratorial power and to avoid seriously unbalanced conduct". Therefore, the command and supervision of a higher-level prosecutor is justified only for this purpose.

(Frontier Editor: Yan Xue)