The procuratorate is to carry out a discussion on the scope of the reverse connection of executions
Abstract: The reverse connection of executions is a new function undertaken by administrative procurators, and in practice there are situations where it is difficult to grasp its scope, and it is necessary to accurately define it from the essence of the reverse connection of executions. The criterion for dividing the functions of the criminal justice organs is that the organ that made the substantive final decision assumes the function of the reverse connection of executions. The procuratorate's carrying out the reverse connection of execution is to transfer the case to the administrative organ and express legal opinions, and there is no blame for the administrative organ. Associated illegal conduct in non-prosecution cases should not be included in the scope of the reverse connection of executions. Situations where the suspected criminal conduct that is not prosecuted harms the public interest and meets the scope of procuratorial and administrative public interest litigation should be handled as a case of reverse connection between executions.
Keywords: Scope of Reverse Connection of Execution, Procuratorial Opinion, Accountability
full text
Reverse linkage of executions refers to the transfer of illegal conduct in criminal justice procedures that is not pursued for criminal responsibility or is exempted from criminal punishment but should be given an administrative punishment for handling. For a long time, within the procuratorial organs, the criminal prosecution department assumed the function of reverse connection between executions. In July 2023, the Supreme People's Procuratorate issued the "Opinions on Promoting the Two-way Convergence of Criminal Punishment and the Supervision of Administrative Violations and Building a System of Convergence between Procuratorial Supervision and Administrative Law Enforcement" (hereinafter referred to as the "Opinions"), clarifying that the administrative procuratorial department is responsible for the reverse convergence work. This has not only perfected and perfected the system for managing violations and crimes, but also adjusted and optimized the division of labor within the procuratorial organs, enriching and expanding the administrative procuratorial functions. As a new administrative procuratorial function, clarifying its scope is the premise and basis for accurately standardizing this work.
I. The Confusion of the Procuratorate's Practical Approach to Carrying Out the Reverse Connection of Executions
(1) Confusion as to whether it is limited to non-prosecution cases
Both the Criminal Procedure Law and the Opinions limit the scope of the procuratorate's carrying out a reverse connection of executions to cases in which a decision not to prosecute is made, but the procuratorates also undertake a number of functions in the criminal justice process, such as approving arrests and supervising criminal trials. According to the author's observations, some procuratorial organs have carried out reverse linkage of executions in cases where arrest has not been approved, and some procuratorial organs are studying and exploring the reverse connection of executions in cases where the people's courts have ruled not guilty or exempted from criminal punishment. Whatever the perception of this issue, there is a need for an in-depth exploration of the jurisprudence behind the norms.
(2) Whether it is limited to the confusion of the illegal conduct bound by the decision not to prosecute
There are many types of violations in non-prosecution cases, ranging from violations that are subject to non-prosecution decisions, to violations related to them, and violations that are exposed in criminal cases. Whether or not these illegal acts should be included in the scope of the procuratorate's carrying out the reverse connection of executions is different in practice. According to the Opinions, cases of reverse connection of executions are transferred from the criminal prosecution department to the administrative prosecution department, and the Supreme People's Procuratorate has designed a special case-handling process for this purpose. Where it is discovered in the performance of criminal prosecution that administrative organs might have illegally exercised their authority or not exercised their authority, they shall follow the "Provisions on the Internal Transfer of Legal Supervision Leads by the People's Procuratorate" and transfer it to the administrative procuratorate department for unified screening and handling. It can be seen that the circulation of cases in the reverse connection of executions is different from the circulation of clues in the supervision of administrative violations, and different procedures apply. The correct understanding of the aforementioned issues has a direct bearing on the correct application of case-handling procedures.
(3) Whether it includes the confusion of illegal acts that harm the public interest
The reverse connection of executions carried out by procuratorial organs is a linkage mechanism between procuratorial supervision and administrative law enforcement, but the connection between procuratorial supervision and administrative law enforcement also includes procuratorial and administrative public interest litigation. In the case where the illegal act harms the public interest, there is competition between the two bridging mechanisms. For example, if the procuratorate makes a decision not to prosecute a crime suspected of polluting the environment, it shall be clarified whether the responsibility of the ecological environment department to order the offender to restore and rectify the crime is handled through the reverse connection of the execution case, or whether it is handled as a procuratorial administrative public interest litigation case.
II. Reverse connection of executions within the scope of procuratorial functions
(1) The procuratorate is to carry out a legal analysis of cases in which the reverse connection of executions is limited to non-prosecution
The reverse connection of executions is a system of pluralistic co-governance, which is not only the responsibility of the procuratorial organs, but also the joint responsibility of the public security organs, the procuratorial organs and the people's courts, which are participants in the criminal justice process. "Where a public security organ makes a decision not to file a case or withdraws a case, it shall return the case file materials to the administrative law enforcement organs, and the administrative law enforcement organs shall handle the case" "Where a criminal suspect who is not sufficient for criminal punishment needs to be dealt with administratively, it shall be handled or transferred to the relevant departments in accordance with law" "In cases where a decision not to prosecute, or in cases where the people's courts have made a not-guilty verdict or waived criminal punishment, and find that an administrative punishment should be given in accordance with law, they shall submit a procuratorial or judicial recommendation, It shall be transferred to the relevant administrative law enforcement organs for handling. From this, it can be clearly seen that the division criteria for different criminal justice organs to bear their respective responsibilities for the reverse connection of executions, that is, the organ that concludes the criminal justice process or the organ that makes the substantive final decision on the criminal case assumes the function of reverse connection of execution.
Cases in which procuratorial organs carry out reverse linkage of executions include statutory non-prosecution, non-prosecution in doubt, and relative non-prosecution. Statutory non-prosecution and relative non-prosecution are the complete finality of a criminal case, after which there is no possibility of initiating criminal justice proceedings against the offender. The determination of the facts of non-prosecution in case of doubt is not yet certain, and there is still the possibility of initiating criminal justice procedures when the evidence collected in the new investigation meets the standard of proving the crime, and this kind of final decision is not thorough. However, the re-initiated criminal justice process is very different from the previous case in terms of factual determination and evidentiary support, and can be regarded as a new case. In addition, there is still uncertainty as to whether the criminal justice process can be re-initiated if there is no prosecution in doubt, and in order to maintain the order of administrative law, it is necessary to impose administrative penalties on the offenders.
(2) The procuratorate's implementation and oversight of the reverse connection of executions
In the system of reverse connection of executions, the procuratorate is both the implementer and the supervisor. As implementers, the procuratorate shall inform and transfer the circumstances of non-prosecution of criminal cases and the need to give administrative punishments to the administrative organs, and submit procuratorial opinions. This procuratorial opinion is a preventive measure to move the border forward, has no supervisory attributes, and is attached to the notification and transfer of the case, so the performance of this function reflects the implementation of the procuratorial organ's reverse connection of execution. As supervisors, the procuratorate shall also carry out oversight of other entities' implementation of reverse connections. The supervision of the reverse connection of executions is itself an important part of the mechanism for the reverse connection of executions. As an external supervision activity, procuratorial supervision should have a certain degree of modesty, so as not to erode the authority of the supervised object and undermine the power order established by the Constitution. Judging from the legislative practice in recent years, limiting the source of ex officio supervision to the discovery of cases in the performance of duties is an important measure to implement the modesty of supervision. From a practical point of view, procuratorial organs have the facilitation to discover the illegal situations involved in procuratorial cases, which is also conducive to the performance of supervisory functions.
Procuratorates' oversight of the public security organs' implementation of mechanisms for reversing executions shall be limited to criminal cases that have entered the procuratorial case-handling procedures, primarily for oversight of the public security organs' enforcement of mechanisms for reversing executions in cases where the procuratorate does not approve arrest. Although the procuratorate's handling of an arrest case is a review and judgment of the necessity of arrest, and although it may have an impact on the public security organ's substantive handling of the case, the judgment is not a final decision on the substance, and the procuratorate cannot reverse the execution of such cases. The procuratorate makes a decision not to approve arrest in cases submitted by the public security organs for approval of arrest, which is divided into absolute non-arrest, non-arrest if there is insufficient evidence, and non-arrest if there is no need for arrest. In cases where there is absolutely no arrest, the public security organs shall withdraw the case or terminate the investigation, and the procuratorate shall supervise and supervise situations where it is necessary for the public security organs to carry out a reverse connection of executions. In cases where the evidence is insufficient and no arrest is made, the procuratorate shall also follow up with the public security organs in handling the case. In the case of the public security organs' supplementary collection of evidence and the smooth progress of subsequent criminal justice procedures, there is no room for the public security organs to carry out the reverse connection of executions. In situations where the public security organs withdraw a case or terminate an investigation, and it is necessary for the public security organs to carry out a reverse connection of executions, the procuratorate shall follow up and carry out oversight in light of the circumstances. In cases where arrest is not necessary, the follow-up criminal justice procedures will continue, and the public security organs will not make a final judgment on the case, and the public security organs do not need to carry out a reverse connection of executions. After receiving a judgment of not guilty or waiving criminal punishment, the procuratorate shall follow up on the people's court's performance of the function of reversing the execution of the sentence after receiving a judgment of not guilty or waiving criminal punishment, and where the people's court is negligent in performing that duty, it shall draft and issue a procuratorial recommendation to urge it to perform.
III. The scope of the procuratorate's carrying out reverse connection of executions in non-prosecution cases
According to the definition of reverse connection of execution, the procuratorate's implementation of reverse connection of execution applies to the illegal conduct bound by the decision not to prosecute. Accurately grasping its characteristics will help establish the substantive standards for the inclusion of illegal acts in the reverse connection of executions, and can answer various doubts in practice.
(1) Where the illegal conduct bound by the non-prosecution decision is not addressed, the administrative organ is not responsible
First of all, for cases that are transferred by the administrative organs to the public security organs for investigation through positive linkage, the administrative organs have fulfilled their obligation to discover and investigate, only because of the priority of the criminal case, it is necessary to first go through the criminal justice procedures for criminal handling. In cases where the procuratorate finds that it is not necessary to pursue criminal responsibility, due to the conclusion of the criminal justice procedure, the handling of illegal acts has been changed from criminal to administrative, and the subject of jurisdiction has been changed from a public security organ to an administrative organ. This kind of change and transfer is formed by the linkage mechanism between administrative law enforcement and criminal justice, and there is no responsibility for administrative organs to neglect the exercise of their powers.
Second, in cases investigated by the public security organs that discover clues on their own, the illegal acts involved in the case constitute both administrative and criminal violations, and although the administrative organs did not discover them in a timely manner, the pursuit of criminal responsibility for such illegal acts is the primary priority, and the main body responsible for investigating and correcting the violations is the public security organs, and the administrative organs are not responsible for failing to discover and investigate them in a timely manner. Even if the administrative organ discovers the suspected criminal offense in a timely manner, it cannot be investigated and dealt with, but should be transferred to the public security organ for investigation as a criminal case. Therefore, the administrative organs are not responsible for the failure to discover or impose administrative penalties in cases investigated by the public security organs on their own. By formulating and issuing procuratorial opinions that are procedurally effective and not difficult, procuratorial organs can not only prevent procuratorial organs from having excessively strong viewpoints and misleading the judgment of administrative organs, but also promptly transmit the information collected by procuratorial organs and the analyzed views on case handling to administrative organs, thus realizing the integrated management of violations and crimes.
(2) The reverse connection of executions should not cover related illegal conduct
Connected illegal acts refer to illegal acts that are presented in a criminal case but are not bound by a non-prosecution decision, including situations such as the involvement of criminal acts, the presentation of criminal cases, etc. The criminal act related to the criminal act and the suspected criminal act not to be prosecuted are two different acts, but the two are closely related, or are prepared for the commission of the criminal act, or for the purpose of committing the criminal act, or are otherwise closely related. The illegal acts related to the presentation of criminal cases are those found in the in-depth review of criminal cases that are not directly related to the criminal acts, but reflect loopholes in administrative supervision and have an indirect impact on the crime.
For related illegal conduct, it should not be included in the scope of the procuratorate's carrying out the reverse connection of executions. Where the related illegal acts have not been criminally prosecuted and are not bound by criminal justice procedures, the administrative organs' duty to investigate and deal with them should not be affected, and the administrative organs' failure to investigate and deal with the related illegal acts has administrative inaction, and it is responsible. Under such circumstances, the procuratorate should not carry out the reverse connection of executions, but should carry out supervision of administrative violations.
(3) The reverse connection of executions should cover illegal conduct that harms the public interest
In the author's opinion, the reverse connection of executions embodies the concept of handling cases in which the procuratorial organs perform their duties as a whole, and the transition of cases from criminal prosecution to administrative prosecution and public interest litigation prosecution is realized through the reverse connection of executions, and the reverse connection of executions has become the source of cases for the supervision of administrative violations and the procuratorial administrative public interest litigation. The reverse connection of execution is a necessary procedure for achieving transformation, and it has its own uniqueness. First of all, from the perspective of jurisprudence, procuratorial administrative public interest litigation supervises administrative violations, including the illegal exercise of power or omission by administrative organs. Administrative organs, as state organs, have professionals engaged in law enforcement activities, and there is no reason for exemption from liability for the occurrence of illegal circumstances, and administrative violations are culpable acts. In this sense, illegality and culpability are synonymous concepts. Procuratorial suggestions are a form of supervision that is reproachful. The execution is reversed and the administrative organ is required to perform its duties, and there is no reproach to the administrative organ. Therefore, there is an essential difference between the procuratorial organs' carrying out the reverse connection of executions and the procuratorial administrative public interest litigation and supervision of administrative violations.
Second, from a normative point of view, the "Opinions" issued by the Supreme People's Procuratorate put forward requirements for the reverse connection of executions and the supervision of administrative violations as two separate tasks. With regard to procuratorial opinions formulated and issued in the course of the reverse connection of executions, the "Opinions" regard the supervision of administrative violations as its follow-up supervision measures, and apply the supervision method of the procuratorial recommendations, and there is no subordinate relationship between the two. The supervision of administrative violations and procuratorial administrative public interest litigation are both supervision of administrative violations, but the scope of supervision of procuratorial administrative public interest litigation is limited to administrative violations that harm the public interest, and the relationship between the two is general and special. The non-subordinate nature of the supervision of administrative violations and the reverse connection of executions means that there is no subordinate relationship between the reverse connection of executions and procuratorial administrative public interest litigation, but rather two procuratorial functions that are independent of each other and follow up, and in the follow-up of the reverse connection, it is found that the administrative illegal acts harm the public interest, and shall be transferred to the public interest litigation procuratorial department as a lead in the public interest litigation case.
*This article was published in the June 2024 issue of China Prosecutor magazine (Judicial Practice Edition)
Editor-in-Charge | Zhang Xun Yin
Art Editor | Yu Yingying
Audit | Zheng Hong, Wu Ping
Source丨Chinese prosecutor's WeChat public account