Chen Guangzhong: "Supervision Law" is an important change in the law of the land turned to party rules

  March 20, 2018 morning, at the eighth plenary meeting of the Thirteenth National People's Congress, "People's Republic of China Supervision Law" vote。   Supervisory System from proposed so far, has been a year and four months of exploration。 As of the end of February this year, 31 provinces, autonomous regions and municipalities and Production and Construction Corps at all levels of the Commission were formally established in Xinjiang。
  November 7, 2016, the Office issued "regarding the development of the national reform pilot program to monitor in Beijing, Shanxi, Zhejiang Province," to kick off the monitor reform。   June 2017, the draft law by the NPC Standing Committee to monitor the initial review。
November 7, publication of the draft, the community for comments。 December 22, the draft law submitted to the NPC Standing Committee to monitor the second review。
Two reviewers based on the views, made several changes, including further standardize the management of facilities and places of retention, improve the provision inform the family, defined the National People's Congress to accept the supervision of, and with the supervision of the prosecution, mutual constraints, etc.。   And the vote of the "Supervision Law", was further improved on the basis of two reviewers。
  "Develop" Supervision Law "is to promote the rule of law under a comprehensive new era, the promotion of national governance systems and governance modernization of major initiatives for building centralized, authoritative and efficient supervision system with Chinese characteristics is of decisive significance。 "Famous jurist, China University of Politics and former president Chen accept the" China Newsweek "interview, the interpretation of" Supervision Law "。
  Surveillance system in the Constitution is of great significance China News Weekly: "Supervision Law" when a reviewer for public comment, you have raised, should amend the constitution, which will be reflected in the surveillance system。 March 11 this year by the "People's Republic of China Constitution (Amendment)," indeed written to the monitor system。
Do you think that changes what's the point?  Chen Guangzhong: I think, which means to monitor the development of evidence on constitutional law。
  The Constitution is the fundamental law of the country, is the total charter country and bringing peace, is a concentrated expression of the will of the party and the people。
Uphold the rule of law on the premise that uphold According to the Constitution, according to the Constitution first requires to develop or modify any of the basic law on setting up national institutions are not in conflict with the Constitution, which is the basic premise。   March 11, Thirteenth National People's Congress meeting formally adopted the "People's Republic of China Constitution (Amendment)," then the system will monitor included in the Constitution, we established a system to monitor the power of the authority of the supreme law of the form legality。
  The constitutional amendment made 21 modifications of the current constitution, which 11 related with the establishment of the Commission。
Constitutional amendment to increase the state institutions in a chapter of "Commission", the nature of the State Control Committee and the Board of Overseers local levels, status, name, composition, term of office of any session, to provide for leadership system, working mechanism。 And "Supervision Law" Article clearly states, "According to law。 "We can say that the establishment of the national surveillance system at the constitutional level as well as in the" write Supervision Law " 'according to the Constitution', is ordered to monitor the system construction and operation of the most important legal basis for far-reaching and of great significance to improve。
  China Newsweek: In the past, the nature and status of the relevant supervisory authorities, there is controversy in academic circles。
Some scholars believe that the Commission is the national supervisory authority, and some scholars believe that the Commission is a political organ。
The adopted "Supervision Law" to make this provision, Do you have any kind of understanding?  Chen Guangzhong: the provisions of Article 123, "the Constitution", People's Republic of China Commission is to monitor the state organs at all levels。
Article "Supervision Law" stipulates that the Commission is to exercise state supervision functions at all levels of authority specifically tasked。
Whether it is "constitutional" or "Supervision Law" are expressly provided the nature and status of the supervisory authority, which I fully endorse and support。   Supervisory authority should be distinguished from the executive power and judicial power, is an independent supervisory authority。
General supervisory organs to mention a political organ, from the literal meaning can not reflect the difference between the supervisory authorities and other national institutions of quality。   In addition, the supervisory authority based on whether legislation or whether property rights have independent status that is independent of the supervisory authority and independent exercise of supervisory powers。
  Article IV "Supervision Law", the independent exercise of the right to monitor the supervisory authority in accordance with law, intervention by administrative organs, social groups and individuals。
Supervisory authority for violations and crimes committed in office, should cooperate with each other and judicial and procuratorial organs, law enforcement, checking each other。 Article 8, paragraph 1 provides that the State Commission produced by the National People's Congress, the country responsible for monitoring the work。
Paragraph Four, the National Commission in charge of the National People's Congress and its Standing Committee, and accept their oversight。
And above in the Constitution is also a clear manifestation。   This indicates that the supervisory authority as an independent authority, exercised by the State supervisory organs, people's courts and judicial, procuratorial power in parallel People's Procuratorate, the constitutional powers of the supervisory authority has the supervisory organ specificity and independence。   "Supervision Law" has been progress in terms of human rights protection in China News Weekly: Have you ever had proposed recommendation "Supervision Law" can be written to "respect and protect human rights."。 Currently introduction of the "Supervision Law" whether there is progress in the protection of human rights?  Chen Guangzhong: I think some progress。 Article 33 of the "Constitution" provides that: "the state respects and safeguards human rights", this is a very important constitutional principle, to exercise any powers of state organs should follow the Constitution and respect the protection of human rights principles, the Commission does not exception。   "Supervision Law" the dust settles from the final draft to develop and modify the process to absorb the views of all parties, to promote "Supervision Law" is more complete, more specific on the protection of human rights。
  For example, where the second paragraph of Article 41, investigators for questioning and searches, seizure, detention and other important forensic work should be carried out audio and video recording of the whole process, retained for future reference。 Compared to the provisions of the Criminal Procedure Law, the coverage is more extensive audio and video recording。
  Article 44, paragraph 3, is left after personnel suspected of crimes transferred to judicial organs, was sentenced regulated by law, detention and imprisonment, the time limit should be set off against the prison term indwelling。
Lien on the 2nd day spent in control, set off against the detention, imprisonment Day。
Subject to the requirements of the sentence set off against the rule of law。
  Article 67 provides that the exercise of authority and supervision organs and their staff, violations of citizens, legal persons and other organizations of the legitimate rights and interests, causing damage, given compensation by the state。 To ensure that the rights of victims to get state compensation for the stable development of society has a positive role in promoting。
  In addition, with regard to search and seizure, procedural norms measures of technical investigations, as well as the terms of eliminating illegal evidence, have better reflect the spirit of the rule of law, but also conducive to protect the legitimate rights of the people under investigation。   China Newsweek: "Supervision Law" clearly regulate the placement of this survey instruments, and use this to replace the "two rules"。
Do you think, indwelling compared to "two rules", where it is progressive in?  Chen Guangzhong: According to "Supervision Law", indwelling time not exceed three months; in exceptional circumstances, may be extended once, to extend the time shall not exceed three months。 Retention measures taken below the provincial level supervisory authority, extended hold time should be approved by the next higher level supervisory authority。 In addition, the indwelling place to ensure the retention period have made provisions。
These are compared with indwelling "two rules" progressive place。
  In addition, in the past a "two rules" in accordance with party rules, strictly speaking, in terms of the rule of law is flawed。
Now, in accordance with national laws, restrictions on personal freedom, law of the land is turned to party rules, the party's national agency steering mechanism, a modernization of our national governance and the rule of law is an important change。   China Newsweek: "Supervision Law" Article 22 stipulates that "the indwelling place to set up and manage the implementation in accordance with relevant state regulations。 "Do you think, it should be set in a place where indwelling?  Chen: In practice, practice varies around, some on special places indwelling Commission for Discipline Inspection, some on detention center。 I suggest that in order to ensure monitoring of the investigation according to law, orderly, should be uniform implementation in the detention center。
  China Newsweek: Previously, some media attention, the problem during the supervisory agencies in the investigation, especially after a person placed under investigation, whether the lawyer can intervene。 What do you think of it?  Chen Guangzhong: "Supervision Law" There is no clearly defined whether to hire a lawyer。 The key to the problem is not that oversee the investigations into the activities of "Supervision Law" as the basis or the "Criminal Procedure Law" as the basis, apparently because the investigation is based on "Supervision Law"。
The key to the problem lies in the provisions of the "Supervision Law," "talk, interrogation, inquiry, inquiry, freezing, collect, seizure, detention, search, inquest inspection, identification, indwelling" and 12 investigative measures, most of which have high mandatory, I think it allows the lawyers involved during the investigation, the investigation may have caused a certain degree of interference, but can effectively protect the human rights of people under investigation, effectively enhance the quality of handling cases, especially in making the findings more accurate and prevent facts identified deviations and even miscarriages of justice。
At present, the "Supervision Law" Although there is no clearly defined, but it is not expressly prohibited, so I recommend a lawyer should be allowed to intervene during the monitoring of the investigation。   China News Weekly: For the relevant provisions of the lien, if you have other suggestions?  Chen Guangzhong: "Supervision Law" Article 39 stipulates that "the decision to initiate an investigation should be announced to the person under investigation, and notify the relevant organizations。
Suspected of serious crimes committed illegal or duties, it shall notify the family members of the person under investigation, and publicly community。
"This means that, without exception, must inform the family filing。
  The provisions of Article 44 "Supervision Law", "indwelling after taking measures against the person under investigation, it shall, within twenty-four hours notice is left the unit personnel and their families, but it is possible to destroy or forge evidence, interfere with witnesses or collusion, etc. except impede the investigation of the case。 "The article mentioned exceptions made without notice, in practice it is not possible for the families to become general notice。   And in conjunction with Article 39 exceptions, impede the investigation can occur when filing notification。
That being the case, the need for special provisions of Article 44 of greatly reduced。
"Criminal Procedure" provisions without exception must notify the family when taken into custody measures。
Therefore, I suggest that, without exception, to inform the family indwelling。   Supervision Commission and other agencies in conjunction with the constraints China News Weekly: "Supervision Law" Article 47 stipulates that "the people Procuratorate, after examination, that the need to supplement verification, supervisory organ for supplementary investigation shall be returned, if necessary, can add their own investigation。 "Do you think, after the anti-corruption, anti-dereliction of duty crime prevention department and has been transferred to the scribe and supervision departments, the Procuratorate supplementary investigation of their own which department should be responsible?  Chen Guangzhong: I think the prosecution should still retain a certain investigative force, set up an independent investigation department to implement supplementary investigation。
  In addition, the "Supervision Law" Article 66 stipulates that "the violation of this Law constitutes a crime, be held criminally responsible。 "" Supervision Law "does not clear the supervisory authority staff who is suspected of such crimes investigation。 If the investigation by the Commission itself, there is insufficient oversight of autologous。 Some scholars have called for supervisory organs suspected of job-related crimes, the prosecution referred to the same level investigation。 I think this can play a good role in the constraints, it is a good thing to promote the Supervisory System。
  China Newsweek: "Supervision Law" for supervisory authorities and the judicial and procuratorial organs, law enforcement agencies cooperate with each other, checking each other to make provision。
How do you think the relevant provisions?  Chen: From the relations with the supervision of the Attorney General, the later cases prosecuted, how to take coercive measures to replace retention, as well as to go through the review of the decision is not to prosecute, the provisions of these issues, so that the existing cooperation between the two, and there are constraints。
  From the relationship between the court and the supervisory point of view, it reflects the spirit of the trial centered。 "Supervision Law" Article 33 provides that the supervisory authority in the collection, fixation, review, when the use of evidence, should be consistent with the requirements and standards of the criminal trial of evidence。 Illegal methods to collect evidence should be excluded by law, shall not be disposed of in accordance with case。 The regulations implementing the reform litigation to trial as the center, will prevent cases of injustice wrong, promote justice play a role in safeguarding。   From the point of view of the relationship between public security and supervision, public security is to assist the supervisory authority to investigate such assistance is also a constraint。   ( "China News Weekly" of 2018) Disclaimer: republication "China Newsweek" articles written authorization service。