[Law Exchange] Procuratorial hearing realization: better realization of hearing function

The appropriateness of the selection of the case is the basic prerequisite for the substantialization of the procuratorial hearing work. The reasonable composition of the hearing personnel is a guarantee measure to play the function of the procuratorial hearing. The specific method of the hearing is the realization of the substantialization of the procuratorial hearing work.

Based on the actual effects produced by hearing as the standard, the procuratorial hearing function can be divided into functions of internal and external functions. Clarifying the two functions of inspection and hearing, which helps to follow this idea, experience the value of procuratorial hearing, and realize the substantialization of procuratorial hearing.

Supreme People's Procuratorate Research Base

(Tsinghua University China Judicial Research Center) Director,

Professor Zhang Jianwei of Tsinghua University Law School

In 2020, the Supreme People's Procuratorate issued the "Regulations on Hearing Working Work" (hereinafter referred to as "Hearing Work Regulations") in a timely manner of the Supreme People's Procuratorate. The important matters of civil litigation supervision cases, administrative litigation supervision cases, and cases of public interest litigation cases are included in the scope of hearing. In accordance with the principle of "hearing in hearings", the procuratorial organs actively use the procuratorial hearing to handle cases. In some cases, especially cases with complicated cases and large controversial cases, they can clarify the facts, resolve contradictions, eliminate misunderstandings, and achieve good political effects, society, society Effect and legal effect.

Of course, because the procuratorial hearing is still a new way of exercising the prosecution rights, there are still some places to be further improved, such as improper selection of cases and incompetence of hearing components. These issues need to be solved through the substantialization of procuratorial hearing work. The appropriateness of the selection of cases is the basic prerequisite for the essentialization of the procuratorial hearing work. The reasonable composition of the hearing personnel is a guarantee measure to play the function of the procuratorial hearing. The realization of hearing work is substantially realized.

Basic function and main structure of procuratorial hearing

The procuratorial hearing exists to achieve specific functions. To achieve these specific functions, the corresponding main structure is required.

Procuratorial hearing procedures and the basic functions of its operation. Procuratorial hearing has many functions such as promoting judicial disclosure, democratic supervision, brainstorming, and interpretation of the law. Through the hearing, more people have the opportunity to participate in the procuratorial case. In short, the basic function of procuratorial hearing is to serve the case, solve the disputes in procuratorial cases in a visible way, and provide a solid basis for the procuratorial decision. If there is no obvious controversy in the hearing case, and the hearing has no room for the facts of the case and the prosecution decision, the function of the procuratorial hearing cannot be fully exerted. The expected functions stipulated in Article 2 of the Hearing Work Regulations have deviated.

The configuration of the procuratorial hearing subject and the subject of the subject. The procuratorial hearing should be effective "listening". The object of listening is "prove". Whoever "listen" and who will "prove" is a problem that should be considered when the hearing subject is set. The main body of "listening" in the hearing procedure should be a case -handling personnel who hold a hearing. They need to make a substantial judgment on facts, evidence or applicable laws on the basis of hearing. The main body of the "certificate" in the hearing procedure should be a person familiar with the case, including the party, witness, original investigation or prosecutor handling personnel, and appraisal personnel who made appraisal related issues related to the case. People. This single structure from "listening" to "prove" belongs to the basic structure of hearing.

However, the composition of the personnel of the procuratorial hearing in my country mainly adopts binary (dual) or even diverse hearing main structure, that is, in addition to the subject of "listening" in the hearing of the procuratorial organs, a hearing or hearing group is also set up as a secondary hearing The subject, that is, the hearing or the hearing group first listened to the case report of the case organizer, and then learned about the situation from the insider present, and finally formed their own understanding of the case. Strengthening or weakening the prevalence of decision -making in case handling personnel will have a certain impact on the final prosecution decision. The main body of "listening" in the hearing sometimes includes the parties (especially the victims) and their close relatives. The interpretation role played by the hearing is conducive to their decision to accept the upcoming decision of the procuratorate.

The two sides of the hearing and testimony constitute the basic subject of the hearing, and the "hearing direction" structure is formed between the subjects of the two parties. In the practice of hearing, if the parties to the case are lacking, especially the inspection hearing in the case of lack of the participation of the prosecution party, the structure of the hearing subject is not a "hearing direction" structure, it is inevitable that the hearing is mixed with the work of soliciting the case from experts.

In addition, listening to testimony as the object, only to ensure that the content of "prove" can fully achieve the value of "listening". The "certificate" requires the claim to work hard to prove the point of view and convince the subject of "listening" to adopt their opinions. If the main body of the "certificate" is simply as a procedural participant instead of publisher, the subject of "listening" cannot obtain sufficient information, and the main combination form of listening and testimony still cannot be regarded as a "hearing direction" structure.

Therefore, in practice, the qualifications of the hearing must be considered, which is also a problem that needs to be paid attention to in the configuration of the hearing. According to the requirements of the "Hearing Work", the hearing personnel are mainly determined by the procuratorial organs by invitation. Article 16 of the "Ratial Work Regulations" uses the opinions of the hearing as an important reference for the prosecutor's handling of cases in accordance with the law. If the majority of the hearing of the hearing should be adopted, the prosecutor shall report to the prosecutor and make a decision after being agreed. It can be seen that the objectivity of the hearing as a reference for procuratorial cases is crucial. Based on this, if the professional literacy or factual judgment ability of the hearing is not strong, it is difficult to form effective opinions on the content of the "certificate", and it is impossible to put forward valuable insights when expressing opinions. At present, the parties have not stipulated that the parties' objection to the objection and application for evasion of the hearing is not conducive to the substantialization of the hearing work. Therefore, whether the selection method of arbitrators in arbitration activities should be learned by reference, it is worth studying. Practical issues that need to be paid attention to in the procuratorial hearing

From the perspective of relevant cases, procuratorial hearing has injected more elements such as democracy, openness, and fairness for the exercise of procuratorial rights, and it should be helpful for the final procuratorial decision. Moreover, the hearing procedures applied to the procuratorial hearing cases are different. This method of simplifying the degree of simplification due to the nature of the case has a simplified degree. It is adapted to the case and is worthy of recognition. However, some cases also have problems that have not achieved the expected results and are worth research and improvement.

The selection of hearing cases and the actual function of the hearing. In some cases, due to the simple case, clear facts, and no controversy, the suspects and investigating agencies participated in the hearing. The hearing results agreed that the procuratorial organs made decisions of no prosecution, and the significance of the hearing was not prominent. Therefore, cases that are simple and clear and not controversial are included in the hearing procedures. The hearing process lacks opinion exchange, and the hearing will inevitably become formal activities, and it does not really realize the function of procuratorial hearing.

The "certificate" part of the procuratorial hearing has space that can be improved. Article 15 (2) and (3) of Article 15 (2) and (3) of the "Institute of Hearing Work" stipulates that the parties and other participants need the issue of the hearing to explain the situation separately. Basic requirements. However, in addition to the "Hearing Participants' Explanation" and "Questions about the hearing" as the procedure part of the procedure, the "Hearing Work Regulations" does not specify other procedures related to debate or certification, and lack specific requirements for argumentation. Correspondingly, whether the parties and other participants in hearing practice need to provide relevant evidence when explaining the situation, how to present evidence in hearing, and the way of hearing and debate, they need to accumulate experience through hearing practice to form a clear guidance.

Guided by the dual function of the procuratorial hearing

Make substantial transformation

Based on the actual effects produced by hearing as the standard, the procuratorial hearing function can be divided into functions of internal and external functions. Internal functions are acting on procuratorial organs. The realization way is to fully provide evidence and express opinions in hearing participants to clarify doubts and eliminate contexts to deal with cases, and ensure that the procuratorial decision is fair and fair. In the procuratorial hearing, prosecutors can understand the facts of the facts and evidence and consultation, form a multi -angle hearing conclusion, broaden the ideas of review cases, and make objective and fair decisions on the basis of a more comprehensive basis for case information. The external function is based on the parties and the public. It improves the credibility of procuratorial organs through procuratorial hearing, and plays a role in a complaint to achieve the judicial effect of "let the procuratorial right run in the sun". Clarifying the two functions of inspection and hearing, which helps to follow this idea, experience the value of procuratorial hearing, and realize the substantialization of procuratorial hearing.

Standardize the scope of the case of procuratorial hearing. In order to realize the substantialization of procuratorial hearing, in accordance with Article 4 of the "Hearing Work Regulations", cases with large controversy or significant influence shall be included in the scope of hearing cases. Among them, the large disputes include the facts of the case, and the facts directly affect the procuratorial decision, or the parties to the case have always had objections to the procuratorial organs. Major social impact refers to the general attention of local or more public, and the decision of procuratorial organs may have or may cause public opinion. Of course, even if the case is controversial, or if there is a major social impact, there is no need to apply the hearing procedure. If the procuratorial organs can eliminate the disputes in the case through independent review, or eliminate the misunderstandings of the parties through public answers, no need to start procuratorial hearing to start procuratorial hearing program.

In addition, the prosecutor who hosted the case believes that more opinions need to be collected publicly through the hearing procedure, or it is necessary to give the parties and the public the opportunity to understand the basis for the procuratorial organs to make a decision, and it shall be included in the scope of the hearing case.

On this basis, in order to promote the active hearing procedures for cases, the type of case type that should start the hearing process may be stipulated. It mainly includes: first, the case is not determined as appropriate. Although the procuratorial organs have sufficient reasons to make decisions of non -prosecution, the defendants of such cases have committed crimes, and the decision to decide not to prosecute may be difficult to accept. Further evaluating the influence of the case and the defendant's personal danger, and helping to eliminate the public's objections, it has substantial significance. Second, public interest litigation cases. Public interest litigation cases handled by procuratorial organs involves a wide range of public interest cases, and the viewpoints of various interests are diverse. Through hearing, they can seek the best solution. Third, the parties have repeatedly appealed. The procuratorial organs can tell the appellant's interpretation by holding a procuratorial hearing, so that the appellant recognizes the substantial significance and facts, evidence, and legal basis of the procuratorial organs, so that the procuratorial hearing can play the function of the function of responding to the interview. The author believes that the procuratorial organs involved "whether there is social danger", "whether there are social help conditions", "whether there are major controversy", and "whether there is a major social impact". Essence Reasonable configuration of procuratorial hearing participants. Under the premise that the case needs to start the procuratorial hearing procedure, the arrangement of which personnel to participate in the hearing are an important guarantee for the full play of the hearing function.

First of all, in accordance with Article 13, paragraph 1, paragraph 1, paragraph 1 of the Hearing Work, the hearing is generally hosted by the prosecutor of the contractor or the host of the case handling team, that is, the prosecutor of the case or the prosecutor of the case handling team as the hearing host as the hearing host people. To this end, it is necessary to further strengthen the prosecutor's hearing ability, train different types of cases and procuratorial hearing at different stages of lawsuits, and focus on improving the organizational coordination capabilities of the prosecutor, so that the hearing can effectively absorb the opinions of the parties. In terms of the external functions of procuratorial hearing, prosecutors need to have the ability to work and interpretation of the masses, so that the people participating in the hearing can understand the reasons for making decisions, so that the procuratorial hearing function and procedure effect are unified. In addition, prosecutors can master the social influence of procuratorial hearing through feedback to the visits after the hearing procedure is over, and whether the function of the hearing can achieve the expected effect.

Secondly, in order to avoid the alienation of procuratorial hearing procedures into case demonstration activities that only prosecutors and hearing participants, the parties can be stipulated in the situation and procedures for the parties to participate in or apply for the procuratorial hearing. Procuratorate. If the hearing is not conducive to the complexity of the parties or the case, such as arresting hearing or public interest litigation procuratorial hearing, the parties' litigation capabilities will affect the fairness of the hearing, and the procuratorial organs should meet the needs of the parties to obtain the help of lawyers.

Again, in order to ensure the actualization of procuratorial hearing, the parties should give the parties to apply for evasion of power or objection to it. If the procuratorial organs do not adopt the objection proposed by the parties or avoid applications, they must explain the reason to the parties. In order to avoid changing the hearer many times, the procuratorial organs can also allow the parties to choose the hearing in the "Hearing Press (List)".

Finally, the opportunity for people's supervisors to participate in the hearing, especially for cases with complicated cases, more controversial points, and widespread interests involving interests.

Improve the program settings in some links of the procuratorial hearing. First, standardize the evidence presentation in the hearing procedure. Judging from the current regulations on procuratorial hearing procedures, whether the hearing should and how to show evidence should be refined. Due to the criminal procedures in my country, the collection of evidence is mainly responsible for the investigation organs. After the investigation is over, the case will be transferred to the procuratorate, and the evidence of litigation is transferred to the procuratorial organs. With reference to the regulations of the Chinese Criminal Procedure Law on the papers, the procuratorial organs in the procuratorial and hearing applied by the procuratorial procedure shall be specified in stages: before the review and prosecution, the judicial organs can explain the cases and evidence in the hearing according to the needs of the hearing content. And can present evidence that allows disclosure; in the review and prosecution, and subsequent procedures, the defendant can already read all the materials of the case papers, and the procuratorial organs can present existing evidence in the hearing. In order to balance the conflict between the reality of the procuratorial hearing and the existing criminal proceedings law, the latter stage should present relevant evidence to the hearing participants in principle, but the existence of evidence will hinder the lawsuit or cause harm to the public interest of the society. Especially for evidence involving information such as state secrets, personal privacy, and business secrets, you can choose to introduce only the purpose of its purpose.

Second, arrange the debate when necessary. The "Ratial Work Regulations" except that the hearing can ask questions from the parties or other participants, and there is no procedure for debate. Article 9, paragraph 1 of the "People's Procuratorate's Detention Hearing Measures" issued by the Supreme People's Procuratorate in 2021 stipulates that after the host is permitted, investigators and defender may ask the suspects, defendants and other relevant personnel. This provision belongs to questions rather than a need for argument between the claims of the two parties. Since the factual controversy is the important part of the function of the procuratorial hearing, the debate link can be set up after the two parties' question is over, and the debate is carried out around the objections mentioned by the opponent's opinion.

[The author is Zhang Jianwei, director of the Supreme People's Procuratorate's Judicial Case Research Base (Tsinghua University China Judicial Research Center) and professor of the School of Law of Tsinghua University, researcher at the Supreme People's Procuratorate's Judicial Research Base (Tsinghua University China Judicial Research Center)Lecturer Li Zilong] Source: Procuratorate

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