IV. SUPERVISION OF SUPERVISORY COMMITTEE AND JUDICIAL SUPERVISION
When delegating the corresponding functions and powers to supervisory organs, Chapter 7 of the Supervision Law provides detailed supervision methods for supervisory organs and supervisory personnel, including internal supervision, supervising supervisory personnels』 performance of duties and compliance with laws by supervisory organs; Supervision of the People’s Congress, the supervisory organs shall accept the supervision of the people’s congresses and their standing committees at the corresponding levels. The standing committees of the people’s congresses at various levels shall listen to and consider the special work reports of the supervisory organs at the corresponding levels and organize law enforcement inspections. The supervisory of the power organs may establish complaint committees of the relevant supervisory committees to receive complaints of supervisory organs and supervisory personnel. For example, the complaints committee of the Hong Kong Independent Commission against Corruption (ICAC) supervises and reviews all non-criminal complaints involving the ICAC and officers of ICAC. Members of the committee are appointed by the chief executive and include members of the legislative council and public personages. Any citizens who are dissatisfied with the conduct or working practices and procedures of officers of the ICAC may lodge a complaint. And the supervision of the Party committee, the supervision commission and the Party’s discipline inspection commission work together under the leadership of the Party commission at the same level, which contains supervision. Judicial supervision of the supervisory commission is realized in the division of powers, checks, balances and restraints; it also requires supervisory organs to disclose information about supervisory work in accordance with the law and accept democratic supervision, social supervision and supervision by public opinion.
A. Necessity of Judicial Supervision
Firstly, the concentration of supervisory powers is not conducive to the protection of the rights of the investigated. It is true that the combination of powers will create a strong anti-corruption campaign. However, the investigation of duty crimes is quite different from the discipline inspection of Party and administrative supervision in terms of procedure requirements and intensity of power limitation. These powers mixed in together, will increase the risk of power abuse. It is possible that Party discipline inspection, illegal supervision and duty crime investigation can be selectively applied, if it could be applied to the cases of Party discipline inspection or administrative illegal supervision, it would choose the duty crime investigation which belongs to the field of criminal procedure with greater application intensity to limit or deprive citizens』 personal freedoms, which is very adverse to protect the rights of the investigated. Secondly, the intensity of the supervisory organs』 investigation measures needs to be restricted. For example, in exercising the power of investigation, the supervisory organ allows the detention of not more than three months. The degree of detainment on restriction to personal freedoms of citizens exceeds that of criminal summon by force and custody, which is equivalent to an arrest, the most severe in the coercive measures of criminal procedure. According to the provisions of the Constitution and Criminal Procedure Law, the arrest of a criminal suspect or defendant must be approved by the people’s procuratorate or people’s court. The Supervision Law rules that measures of detention by supervisory organs should be approved or filed by supervisory organs at a higher level, which is incongruent with the constitutional requirement in which the three organs of public security, procuratorial and court restrict and supervise with each other to ensure the legality of the investigation. Thirdly, the remedies for the rights of the investigated are limited. Articles 38 and 40 of the Administrative Supervision Law stipulate that if the investigated refuses to accept a decision made by supervisory organs, he or she shall only have two chances to apply for internal review of the decision, which shall be the final decision. Such an internal review should be of limited remedy to the parties concerned and cannot effectively correct erroneous decisions. Article 49 of the Supervision Law provides that if the investigated refuses to accept a decision made by supervisory organs, he or she may apply to the supervisory organs at the next higher level for check in accordance with the law. Article 61 also stipulates that if the case is found to be based on insufficient or false evidence after investigation, there is a major fault found in the handling of the case, and the supervisory personnel seriously violate the law, the direct responsibility must be investigated, and the relevant leading personnel must be held responsible. Article 65 provides the form in which supervisory organs and their staff exercise their power illegally, but does not clearly indicate the way in which the relevant personnel will be held liable for violation of the law. Initially, article 4 of the Supervision Law stressed that supervisory organs should cooperate and restrict each other with judicial organs, procuratorial organs and law enforcement departments in handling cases of official violation and official crime, what is expressed is the rule of law principle that there must be relief if there is right. In the previous handling case process, the discipline inspection authorities implemented the intraparty disciplinary procedure of requiring a member who is being investigated to cooperate with questioning at a set time and place and the supervision departments implemented the intraparty disciplinary procedure of ordering a personnel suspected of violating administrative discipline to explain the issues involved in the investigation at the designated time and place, which were most criticized for the conflict with the rule of law principles. In summary, the significance of judicial supervision lies in avoiding the alienation of supervisory authority as repressive and imperious force, avoiding the variation of supervisory mechanism as an administrative crime activity, and finally overcoming the adverse impact of political opportunism.
B. Feasibility of Judicial Supervision
1. Judicial Supervision on Illegal and Criminal Behavior of Supervisor. — Article 65 of the Supervision Law provides that departments or persons under supervision violate the provisions of the Supervision Law by committing any of the following acts, who impose sanctions in accordance with law, and if constituted crime, it shall be responsible for crime in accordance with the law. First, without authorization, authorizing the disposal of clues, major findings of the case to withhold, or privately retained, the processing of the material involved; second, interfering in the investigation through taking advantage of duty or influence of duty to seeking personal gain; third, illegally stealing or revealing the information of the investigation, or revealing the information about the reported matters, acceptance conditions about reported and the information of the whistleblower; fourth, by forced confessions, confession by inducement, or insulting, abuse, maltreatment, corporal punishment or disguised corporal punishment to treat the persons under investigation; fifth, disposing of sealed up, detained or frozen property in violation of provisions; sixth, the occurrence of a security accident in handling a case in violation of the provisions, or concealing, inaccurate reporting and improper disposal after the occurrence of a security accident; seventh, taking detention measures in violation of regulations; eighth, restricting the exit of others in violation of the regulations, or failing to lift the exit restrictions in violation of the regulations; ninth, other acts about the abuse of power, malpractice for selfish ends, neglecting duties or divulging secrets.
Article 66 of the Supervision Law provides that in violation of the provisions of this law, constituting a crime shall be investigated for criminal responsibility according to the law. According to the provisions of the decision and the Supervision Law, the investigation of corruption and bribery, dereliction of duty and the prevention of duty crime and other functions have been transferred to the supervisory organs. The scope of the investigation by the supervisory organs includes suspected corruption and bribery, abusing authority, dereliction of duty, power rent-seeking, transfer of benefits, favoritism and a waste of national resources and other official violations and crimes. If it involves the crime of the supervisory organ and its staff, by supervisory organs to investigate their duties violations is unsuitable, especially for the duty crime, and it should submit the criminal cases of the supervisory organ to the procuratorial organ for filing and investigation. In addition, the crime belonging to national officer infringing citizen’s personal rights and democratic rights, namely the national officer abuse their authorities by implementation of illegal detention, illegal searching, extort a confession by torture, resorting to violence, abuse of detainees, retaliation and frame-ups and disrupt the elections still remain the scope of the jurisdiction of the procuratorial organ functions. Supervisory organs and their staff within the scope of this crime, the jurisdiction of the procuratorial organs have the power of investigation.
Therefore, there is a practical need of judicial practice to retain the investigative power of procuratorial organs. It not only accords with the orientation of the supervisory organ as the anti-corruption working organization, but also forms the mutual restriction of supervisory power and procuratorial power. In the institutional design of the ICAC in Hong Kong, non-criminal complaints involving disciplinary acts and corruption charges by ICAC personnel are investigated by the Investigation and Monitoring Team (Group L) within the ICAC, and which are monitored and reviewed by the Independent Complaints Committee of the ICAC. However, all criminal complaints should be notified to the Secretary for Justice, who decides whether they should be investigated by the ICAC or other law enforcement agencies, and ultimately handled by the Department of Justice in collaboration with the Advisory Committee on the Review of Corruption Reporting. Therefore, the people’s procuratorates shall file cases and investigate the criminal cases of malfeasance and infringement during the investigation of the supervisory personnel to establish public trust to investigate this type cases. From the perspective of power attribute, the supervisory commission enjoys the power of investigation, which is different from the power of investigation enjoyed by the procuratorate and cannot completely replace the power of investigation of the procuratorate. In the transfer of institutions, some procuratorial technical departments and information departments should be retained in procuratorial organs to ensure the smooth implementation of the right of self-investigation. At the same time, the procuratorate, as a legal supervision organ stipulated in the Constitution, has the right to exercise legal supervision over decisions made or measures taken by supervisory organs, which is also a way of judicial supervision.
2. Judicial Supervision on Investigation of Official Crimes of Supervisory Organs. — The Supervision Law provides 13 kinds of supervision measures. If the current Criminal Procedure Law and administrative laws and regulations are used as the reference, the conversation should be a disciplinary investigation measure. Inquiry, requisition, inspection, appraisal, sealing, seizure, searching, freezing, detention, etc., are the measures that can be set up and implemented by administrative supervision and criminal investigation. Inquiry, search and technical investigation belong to criminal investigation measure. Involved these measures in the criminal investigation, the Supervision Law should make the strict and detailed rules in terms of the inspection conditions, the applicable scope, applicable period, implementing subject, the specific procedures, remove conditions, relief ways and enforcement power of supervisory organs should follow the Criminal Procedure Law and other relevant laws and regulations. Other countries have also established a procedural judgment system for the judicial control of compulsory investigation. This procedural judgment mechanism mainly includes the following three indispensable links: firstly, the prior judicial authorization; secondly, formal procedural hearing; third, judicial relief after the event. Pre-trial investigations also rely on the track of procedure. In Britain, the police must generally apply to the magistrate in advance for any compulsory act of arrest, search or seizure of any citizen, and explain the justification for the arrest and search. During the investigation, suspects in custody have the right to release on bail directly from the police. If denied, he or she can apply to the magistrate’s court. The magistrates』 court will hold the hearing about whether it can be released on bail. The police and the suspect and their lawyers will present their opinions and debate. The judge will decide in accordance with their argument and the suspect can also appeal to the high court in terms with the procedural issues. In addition, the throne chambers of the high court through the application will hold court proceedings and make decisions on the legality and justice of detention of suspects who are improperly or illegally detained during the investigation stage.
In the field of criminal procedure, procuratorial organs have the right to exercise legal supervision over the litigation activities of public security organs, courts and penalty enforcement organs, which is manifested in the supervision of the public security organs in filing cases, the approval of arrest, the extension of detention decision, the right to protest against the court and so on. The procuratorates as specialized supervision organs of law whose attributes are not changed with the reform of the supervision system. The relationship between supervisory organs and procuratorial organs in the investigation of duty-related crimes can be referred to the relationship between public security organs and procuratorial organs in criminal proceedings. That is, the procuratorial organs exercise supervision over the initiation of investigative powers of supervisory organs, the process of exercising investigative powers and whether the cases transferred by the supervisory organs to prosecute meet the conditions for prosecution. Therefore, according to the provisions of article 47 of the Supervision Law, procuratorial organs have the right to review and prosecute cases transferred by supervisory organs, which is similar to the provisions of article 167 of the Criminal Procedure Law. Detention measures by supervisory organs in accordance with article 43 of the Supervision Law shall be decided by the collective research of supervisory organ leading personnel, which is unreasonable. Detention measures taken by the supervisory organ shall be approved by the people’s procuratorate is legal. At the same time, it should also in the instance of overdue detention set a corresponding relief system, in order to protect the rights of the detained personnel. Supervisory organs in accordance with the law exercise the power of collecting identification evidence, which should follow the requirement of the relevant Criminal Procedure Law and make it clear to collect the regulation evidence and identify procedures, and investigate and verify the evidence of people’s procuratorate. If there is any behaviour to collect evidence by threat, enticement, deceit or other illegal means, or insult, abuse, torture, corporal punishment and disguised corporal punishment of respondent, it should be ruled out. Technical investigation measures of the Criminal Procedure Law must pass strict approval procedures, and can be applicable after meeting the condition of filing cases, felony cases and necessity. Article 28 of the Supervision Law stipulates that when investigating suspected major official crimes such as corruption, bribery, dereliction of duty and so on, the supervisory organs may take technical investigative measures according to their needs, but what approval procedures should be followed and who should approve them have not been explained. Usually, technical investigation measures in other countries generally by the prosecutor or the judge approved the legitimacy review. Therefore, the supervisory organs to take technical investigation measures can be passed on to the people’s procuratorate of investigation supervision departments at the next higher level in strict accordance with the law in examination and approval, and strict supervising survey plan, subjects, matters and the scope of the investigation. It can increase the right of reconsideration of the duty crime investigation department of the supervisory organ correspondingly so as to realize the justice of its approval procedure in the judicial system and environment of China.
Among them, in view of the possible illegal or criminal acts in the investigation of duty-related crimes, the Supreme People’s Procuratorate’s Office of Investigation and Supervision formulated the Opinions on Investigation and Verification of Illegal Acts by Investigation and Supervision Departments on December 27, 2013, which can be used as a reference by supervisory organs, the procuratorates, as the investigative and supervisory department, investigate the illegal situation of the investigative department (supervisory organs) of duty-related crimes. After the investigation is completed, according to the facts and evidence of the investigation, the procuratorates shall make the following treatments according to the law: in the situation that there is no illegal behaviour, it should show it to the investigation department timely. If an investigator involved in the investigation has been questioned, he or she shall also be informed of the situation. If adverse effects are caused, appropriate ways shall be taken to clarify them in a certain range. At the same time, the results of the investigation timely reply to the complaint, appeal, and whistleblower. If it is determined that an illegal act exists and no crime has been constituted, it shall put forward a correction opinion to the investigation department. If the circumstances are relatively minor, the procurators shall give an oral correction opinion after obtaining the consent of the head of the department. If the circumstances are serious, it shall report to the deputy chief procurator or the chief procurator for approval and issue a notice of correction to the investigating department. If the investigation department violates the law seriously, report the decision to the inspector general. If continuing to undertake the case will seriously affect the impartial proceeding of the litigation according to the law, the investigation departments concerned may put forward a proposal to replace the person handling the case to the investigation department concerned. Investigators who need to be responsible for suspected crimes during the investigation shall be transferred to the competent investigation organs for handling according to the law.
3. Judicial Supervision on Duty Infringement of Supervisor. — Administrative litigation is a kind of ex post facto legal supervision system for administrative acts. This mechanism of restricting and supervising administrative power by judicial power aims to guarantee administrative management by administrative organs according to the law through the final judicial decision, and realize the principle of having rights and having remedies. The supervisory organs infringe the rights of supervised personnel because of their illegal duties. Whether the victim can bring administrative proceedings depends on two factors: First, whether or not the relationship between the supervisory organ and the supervised personnel belongs to the relationship between the administrative subject and the relative administrative person as regulated by the Administrative Procedure Law. Second, whether or not the supervisory power belongs to the power of administrative. As for the first question, the Chinese Administrative Law has developed the theory of internal administrative behaviour, which was once a standard of special power relationship, according to the view of special power relation point that the relationship between the Party organizations and Party members is different from the relationship between administrative authority and administrative personnel and the general relationship between state organs and citizens, which is based on the internal relations, different from the relationship between the state and citizens. Countries to interfere in the freedom of citizens and property need to follow in the form of the law, but there are not legal provisions in terms of the internal relationship of the state. Therefore, the significance of the special power is to provide an authorization basis for limiting the basic rights of the special status subjects. As a result of this theory, the relief right of the supervised personnel is very limited. The special power limits the relief of the rights of the monitored persons, but such limitation itself also has to be restricted, for example: the first is appropriateness, that is, the limitation of basic rights should achieve the purpose of special order, otherwise, it constitutes the infringement of the rights of the special status subject. The second is necessity, that is, whether there are more modest means to maintain special power relations. The third is equilibrium and excessive prohibition. To balance the relations of special power needs the basic rights of special status subjects. Thus, special power relations cannot be used as a reason to exclude judicial remedies if the rights of the investigated are restricted to the proportion of loss of balance.
As for the second question, according to article 2 of the Administrative Procedure Law, administrative acts also include acts of organizations authorized by laws, regulations and rules. Thus, organizations other than administrative organs can also make administrative acts. Therefore, even if not as administrative organs, the supervisory organs also do not interfere with the exercise of executive power and become the administrative lawsuit defendant. However, what the supervisory organs enjoy is a kind of compound power. On the one hand, they exercise the investigation on the violation of official duties, including Party discipline supervision and administrative supervision, which is the executive power in the broad sense. On the other hand, the exercise of the investigation of official crime is similar to the investigation power. On the latter, based on the Interpretation of the Supreme People’s Court on Several Issues concerning the Implementation of the Administrative Procedure Law of the People’s Republic of China of 1999, paragraph 2 of article 1 of the regulations, for the criminal justice act cannot bring administrative prosecution to it, can only rely on the Constitution and the Criminal Procedure Law by the judicial authority responsible for the division of labour, mutual restriction between both of them to supervise. If the personal right and property right of the persons concerned are infringed due to a criminal investigation or illegal procedure, they should be settled through judicial compensation instead of administrative litigation according to the relevant provisions of the state compensation law. According to this interpretation, if the investigation of duty crime of a supervisory organ belongs to the category of criminal jurisdiction, then compulsory measures such as interrogation, inquiry, freezing, transfer, sealing, seizure, search, inspection, appraisal, detention, technical investigation, etc. do not have the justiciability of administrative proceedings. If this is the case, the supervisory organ may evade judicial review by selectively applying the duty crime investigation power, and the administrative supervision originally imposed on the investigated may be transferred to the duty crime investigation. The Criminal Law and the Decision on the Administration of Judicial Appraisal both confirm the judicial activities are the litigations and the investigation is a part of judicial activities. The key of the question is whether the supervisory organs have the power to investigate the behaviour of duty crime. Furthermore, is it a criminal jurisdiction? The investigation of duty crimes by supervisory organs is not fundamentally different from other administrative behaviours except that it is related to criminal proceedings. Different from the legal supervision function of procuratorial organs, the duty of supervisory organs is to fight against corruption. It is not the litigation, but the preparation before litigation. Not all power involving in criminal matters is judicial power. Only the final jurisdiction over criminal cases belongs to the category of judicial power. The function of criminal investigation power of supervisory organs is the same as that of other executive powers, which is to carry out, that is, to deliver all criminals to trial as much as possible by gathering solid and sufficient evidence, so as to achieve the functional goal of maintaining social peace and order by the Constitution and law. The task of the judiciary is to determine the rights and wrongs through its judgment, which is recognition and does not permit the intervention of commands on the truth and falsehood. The characteristics of ex post relief, openness, passivity, neutrality, independence and finality contained in judicial power are obviously different from the characteristics of formation, initiative, public welfare, restraint, purpose, concreteness and hierarchy of supervisory power. In essence, the investigation of duty crimes by supervisory organs is an act related to justice, not the criminal justice act itself.
As a result, the investigation of the supervisory organs on duty crime is closer to the broad category of executive power, which is expressed by a concept of social control. Considering studies on the development of criminal proceedings in other countries, the police and prosecutors as criminal prosecutor tend to become the defendant, which take coercive measures such as involved restrictions and denial of individual’s fundamental rights or the legitimacy of investigation has become the object of procedural justice. Therefore, the supervisory organs cannot keep out of the way. In view of supervisors』 duty tort, it can be allowed to use the Administrative Procedure Law, which shall be accepted by the administrative court of the people’s court. In terms of legal technology, it is necessary to make special provisions in the Supervision Law, which will then be accommodated by paragraph 2 of article 12 in the Administrative Procedure Law, which states that the people’s court accepts other cases that can be brought in accordance with the provisions of laws and regulations. On these grounds, the Supervision Law can increase the requirement of administrative litigation against the commission’s illegal exercise of supervisory power and the disclosure of supervisory information, thus allowing the commission to accept more effective litigation and supervision.
V. CONCLUSION
The establishment of the supervisory commission is conducive to the integration and optimization of anti-corruption forces and building up a centralized, unified, authoritative and efficient supervision system. However, the anti-corruption mechanism has also moved towards centralized from decentralized, and the mixture of powers with different natures has increased risks and uncertainties in the process of supervision. On the one hand, the balance of legal powers among state organs is touched; on the other hand, it is not conducive to the protection of rights of the investigated. Major reforms should be in accordance with stringent laws, and emphasizing the significance of judicial supervision is to avoid possible alienation of supervisory authority. Through the design of a judicial supervision mechanism of supervisory organs, it can be possible to actualize value integration and system construction of the new supervision powers in the context of the modern constitution.