Briefings on the Prosecutorial System
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Prosecutorial System OF The Republic OF China
- The Establishment of Prosecutorial Agency In the Republic of China, on behalf of the State, the prosecutor performs the function of prosecution and the execution of criminal penalty in order to protect the rights and interests of people and maintain the legal interests of the nation and society. In a criminal proceeding, the prosecutors’ office, acting as the instigator of the action, and the court which is in charge of trial, are two opposing bodies with independent and separate functions. According to the Law Governing the Organization of the Court, prosecutors’ offices form part of the court at the same level of trial: the Supreme Court has a prosecutors’ office with a number of prosecutors, of whom one is appointed as Prosecutor-General; each of the other Hight Courts or District Courts had its own prosecutors’ office with a number of prosecutors, of whom one is appointed as the chief prosecutor. However, no chief prosecutor shall be appointed if there is only one prosecutor in the particular office. If there are more than six prosecutors in an office, they can be divided into several divisions. Each of these divisions shall have a divisional chief in order to supervise the business of the particular division. In addition to directing, supervising and assigning prosecutorial and administrative affairs, the Prosecutor �General is to supervise all prosecutors at different court levels of the whole nation, whereas the chief prosecutor of the prosecutors’ of-fice at the high Court supervises prosecutors at different court levels of the province where it is located , and the chief prosecutors of the prosecutors’ of fice at the Branch High Courts and those at the District Courts are to supervise the business of their respective offices. Administratively, prosecutors’ of fice at all levels are subject to the supervision of the Minister of Justice.
- Appointment and Qualification of Prosecutors According to the Law Governing the Organization of the Court and the Statute Governing Judicial Personnel Administration, the qualifications of prosecutors are identical to that of judges. Both of them possess the status of judicial officials. Prosecutors shall be appointed from those persons who have passed the Examination of Judicial Officials, completed the Training Course for Judicial Officials and possessed distinguished records after the term of practice. Being appointed in the same manner, prosecutors and judges, if required , can change their status to that of the other. The qualifications for appointment of prosecutors at different levels are explicitly stipulated in Articles 9,10 11,12, 17 and 27, of the statute governing Judicial Personnel Administration.
- Limitation of the Function of the Prosecutor A Prosecutor is subject ot the following limitation in the exercise of his/her function:
- A prosecutor while in office is prohibited from:
- Holding a salaried or non-salaried public office concurrently, unless otherwise permitted by law.
- Engaging in trade or any other business which a public official is prohibited from engaging in.
- Articles 17,18 19,20 and 24 of chapter III on withdrawal of court officers, the Code of Crimininal Procedure, shall apply mutatis mutandis to a prosecutor; provided , that service as a prosecutor in a lower court shall not be a reason for withdrawal.
- The Guarantees Accorded to Prosecutors Prosecutors are accorded with the following guarantees:
- Guarantee of livelihood: The salary and allowance of a prosecutor while in office, as well as his/her pension are covered.
- Career guarantee: Prosecutors and judges are lifetime appointments.
- The Function of Prosecutors
The prosecutor shall conduct investigation, whenever a criminal case arises. According to Articlet 228, the Code of Criminal Procedure, if a prosecutor, based on complaint, information , or voluntary surrender, or for any other reason , suspects the crime having been committed, he/she shall immediately commence an investigation of the crime and the relevant evidence.
After completion of the investigation, unless initiating a public prosecution according to laws, the prosecutor shall make any one of the following dispositions:
A Prosecutor shall make a disposition of non-prosecution in one of the following circumstances:
- The same case is subject to a final judgement previously rendered;
- The statutory period of limitations has already expired;
- There has already been an amnesty;
- A law enacted after the commission of the crime abolishes the punishment;
- The case involved is one which may be initiated only upon complaint or request, and such complaint or request has been withdrawn or the period within which a complaint may be filed has expired;
- The suspect is dead;
- The court has no jurisdiction over the suspect;
- The act is not punicshable;
- The crime is exempt from punishment by law;
- The suspicion of a crime is insufficient.
In addition, if the prosecutor considers it appropriate not to prosecute a case involving one of the offences specified in Article 61 of the Criminal Code, or not to prosecute a juvenile case involving one of the offences for which the maximum principal punishment may be imposed does not exceed imprisonment for five years, he/she can make a disposition of non-prosecution after having taken into consideration the provisions of Article 57 of the Criminal Code.
- Transfer of jurisdiction
If a prosecutor considers that a case is not within his/she jurisdiction, he/she shall immediately notify or refer the case to the competernt prosecutors’ office or military prosecutor) or the competent juvenile court.
If evidence obtained by a prosecutor as a result of investigation is sufficient to show that the suspect has committed the crime, the prosecutor shall instigate public prosecution and prepare the filing of an indictment with the court.
- Enforcing prosecution
After instigating public prosecution on behalf of the State, acting as the accuser, the prosecutor takes action against the accused in the court responsible for trial. For example, he/she shall appear in court on the day of the hearing, state the essential points of the prosecution after the court on the day of the hearing, state the esential points of the prosecution after the court in quires the accused, express opinions after the court investigates evidence and make an appeal immediately if the judgement by the court is considered improper.
- Assissting in private prosecution
According to the Code of Criminal Procedure, a person who is injured by the commission of crime may intiate a private prosecution if he/she has legal capacity.
But if he/she is a person without or with limited legal capacity or dead, his/her statutory agent, lineal ascendant, or spouse may initiate priviate prosecution. If proper asisstance is not rendered to those people ignorant of laws or legal proceedings, who are initiation private complainants are as a result not substantially protected. Thus, regarding those cases of private prosecution notified with the date of hearing by the court, the prosecutor shall render his/her assisstance by expressing opinions if he/she has factual or legal opinions or thinks the case is seriously concerned with the legal interest of the State or society.
- Taking charge of private prosecution
If a complainant, after initiating his/her private prosecution, is found hesitating or unable to proceed or withdraws his/her private prosecution because of corecion or inducement by the accused, and the consequence is serious, the prosecutor shall take charge of the private prosecution, if necessary, except cases which may be initiated only upon complaint. In accordance with the laws, the prosecution in one of the following circumstances:
- If a complainant, who is summoned in accordance with the law, fails to appear in court without good reason.
- If he/she appears but makes no statement.
- If he/she appears but leaves without the permission of the court.
- If he/she, who initiates a private prosecution dies or loses his/her legal capacity before the conclusion of the argument, is found without a person who may resume the prosecution or whith a person who fails to resume within the statutory time limit, the court shall notify a prosecutor to take charge of prosecuting the case.
- Conducting the execution of court decisions. In order to enforce the states poser of penalty, prompt the proceeding and maintain the fairness of court decisions, the prosecutor shall be assigned to supervise the execution of court decisions.
- Performing those functions prescribed by other laws. The prosecutor is authorized to request the court to dissolve a juristic person whose purpose or behavior is found contrary to public order or good morals. According to the Lawyers’ Law, the chief prosecutor of the district court is empowered to directly supervise the local bar association. In addition , any attorney-at-law who has violated the lawyers’ Law should be referred by the chief prosecutor to the Attorney Disciplinary Committee for disciplinary action.
- The Legislative Principles of the Prosecutorial Power
- The Principle of Substative Discovery of Facts
A prosecutor takes responsibility for investigations of crime on behalf of the state. In order to discover the facts, he/she may use necessary means to investigate evidence. The code of Criminal Procedure provides the prosecutor whth the power to summon, arrest, interrogate and detain the suspect as well as the power to search, attach and inspect those persons or property involved with an committed crime. Through the use of such powers, the facts are to be discovered so as to ensure proper and impartial administration of public prosecution. If a prosecutor initiateds prosecution without fulfilling his/her duty to counduct substantive investigation, with the pasage of time and changes in circumstances, the court may not be able to estableish the facts when it conducts the trial.
- The Principles of Statutory and Discretionary Prosecution
Whether a prosecutor has the uthority to decide to or not to prosecute depends on the different principles adopted by the legislature. The principle of statutory prosecution stipulates that a prosecutor shall initiate prosecution by filing an indictment with the court when hs/she considers that the committed offence meets the legal requirements for prosecution. However, according to the principle of discretionary prosecution, though the committed offence is found to meet the legal requirements for prosecution, the prosecutor, based on policy consideration, may decide not to prosecute the crime. The code of Criminal Procedure makes the statutory prosecution the rule and the discretionary prosecution the exception. For instance, the statutory prosecution is cleary stipulated in Article 251, of the code of criminal procedure, which prescribes that if evidence obtained by a prosecutor after investigation is sufficient to prove that the accused is suspected of having committed a crime, a public prosecution shall be initiated. In comtrast , Article 253 of the code of criminal procedure stipulates that if a prosecutor considers it appropriate not to prosecute a case involving one of the offences specified in article 376 of the code of criminal procedure, after having taken into consideration the provision of Article 57 of the Criminal Code, he/she may decide not to prosecute. Another exception is Article 254 of the Code of Criminal Procedure which states that if the suspect commits several offences for one of which he/she has received or may receive a sever sentence, a prosecutor may decide not to prosecute for the other offinces which he/she considers will not serilusly affect the execution of the sentence.
- The principle of Single Prosecutorial Body According to the Law Governing the Organization of the Court, a prosecutor functions independently from the trial court, A prosecutor is authorized to issue an indictment, a written disposition of non-prosecution, a written disposition of non-prosecution, a written appeal and a reply in the prosecutor’s own name. Nevertheless, the Principle of Single Prosecutorial Body has been adopted in order to maintain the solidarity and the intergrity of the prosecutorial power, i.e., from the Prosecutor-General of the Prosecutors’ Office at the Supreme Court down to both prosecutors’ offices at the high court and district court, all the prosecutors’ offices are vertically connected and constitute a single body. The principles are described as follows:
- Prosecutors shall follow the orders and directions of their superior prosecutors. Being different from the authority of judges who conduct trials independently, prosecutors are bound by the orders of their superiors.
- The Prosecutor-General or the chief prosecutor may personally undertake the business assigned to a subordinate prosecutor and may re-assign the business of one subordinate prosecutor to another . For example, in dealing with a complainant who files an application in writing for r3econsideration of the disposition of non-presecution with his/her reasons for dissatisfaction, according to paragraph IV of Article 257, the Code of Criminal Procedure, if the chief prosecutor considers it necessary, he/she may, before delivery is made in accordance with the provision of Paragraph II, (i.e., delivery of files to the superior chief prosecutor when the application is found to be groundless ) personally investigate or order another prosecutor to investigate to determine whether the original disposition should be set aside or upheld.
Application for reconsideration is to be made in writing by a complainant, within seven day, which shall set out the complainant’s reasons for dissatisfaction with a prosecutor’s decision not to prosecute, through the original prosecutor to the chief prosecutor (or Prosecutor-General) of the immediate ly superior prosecutor’s office.
The procedures for handling cases of reconsideration are as follows:
- As for the original prosecutor:
- If the original prosecutor considers that the application for reconsideration is wellgrounded , he/she shall set side his/her disposition and continue the investigation or initiate a prosecution.
- If the original prosecutor considers that the application for reconsideration is groundless, he/she shall immediately deliver the records and exhibits to a chief prosecutor (or prosecutor-General)of superior prosecutors’ office.
- Application which is not filed within seven days after receipt of a written disposition of non-prosecution shall be dismissed.
- In case of emergency, a prosecutor may perform his/her functions outside the territories of his/her jurisdiction to secure the facts and evidence. This is the typical example of the utilization of the principle of single prosecutorial body which is different from a judge who shall exercise his/her power within a fixed territory of his/her jurisdiction.
- Other Bodies which assist in the Exercise of the prosecutorial functions
In order to assist a prosecutor in criminal in vestigation, the law manifestly specifies the following offices as the facilitating bodies so as to ensure effective exercise of the prosecutorial function.
- Judicial police officer:
- Those who has the duty to assist a prossecutor in investigation a crime are:
- county magistrate or mayor.
- The head of a police department, commissioner of police or commissioner of public safety.
- Military police officer
- Those who shall follow the instructions of a prosecutor in investigating a crime are:
- Commissioned police officers
- Military police officers or non-commis sioned officers.
- Persons who are authorized to exercise the duties of a judicial police officer in specific matters.
- Judicial policemen:
Those who shall follow the order of a prosecutor in investigating a crime are:
- military policemen
- persons who are authorized to exercise the duties of judicial policment in sepcific matters.
- The Organization of the Prosecutorial Body in taiwan, Republic of China
At present, in the taiwan-penghu area, there is one prosecutors’ office form the high court, four prosecutors’ offices for the high court, four prosscutors’ offices for the branch high courts, nineteen prosecutors’ offices for the district courts.
The titles and the jurisdictional territories of these prosecutors’ offices are a follows:
- The prosecutors’ office for the taiwan high court exercies the jurisdiction over cases of reconsideration and appeal handled by the respective prosecutors’ offices for Taipei, Panchiao, shih lin, taoyuan, hsinchu, miao li, keelung and I-Lan district courts, and is responsible for the direction and supervision of administrative affairs of all prosecutors’ offices in the taiwan-penghu area.
- The Prosecutors’ office for the taichung branch high court exercises the jurisdiction over cases of reconsideration and appeal handled by the respective prosecutors’ offices for the taichung, changhua and Natou district courts.
- The Prosectors’ office for the taiwan branch high court exercises the jurisidction over cases of reconsideration and appeal handled by the repective prosecutors’ offices for the Yunlin, chia-I and taiwan district courts.
- The Prosecutors’ Office for the kaohsiung branch high court exercises the jurisidiction over cases of reconsideration and appeal handled by the respective prosecutors’ offices for the kaohsiung, pintung and penghu district courts.
- The prosecutors’ office for the hualien branch high court exercises the jurisdiction over cases of reconsideration and appeal handled by the respective prosecutors’ offices ofr the hualien and taitung district courts.
- The prosecutors’ office for the taipei district court exercises the jurisdiction within the district of taipei metropolitan area and part of taipei hsien.
- The prosecutors’ office for the panchiao district court exerises the jurisdiction over part of taiper hsien.
- The prosecutors, office for the shih lin district court exercises the jurisdiction within part of taiper metopolitan area and part of taipei hsien.
- The prosecutors’ office for the taoyuan distric court exercies the jurisdiction within the district of taoyuan hsien.
- The prosecutors’ office for the hsinchu district court eercies the jurisidction within the district of hsinchu city, hsinchu hsien.
- The prosecutors’ office for the miao-li district court exercises the jurisdiction within the district of miao-li hsien.
- The prosecutors’ office for the Taichung District court exercises the jurisdiction within taichung city, Taichung Hsien.
- The prosecutors’ office for the Nantou District Court exercises the jurisdiction within the of district Nantou Hsien.
- The prosecutors’ office for the Changhua district Court exercises the jurisdiction within changhua Hsien.
- The prosecutors’ office for the Yunlin district court exercises the jurisdiction within the district of Yunlin Hsien.
- The prosecutors’ office for the Chia-I District Court exercises the jurisdiction within the district of Chia-I City and Chia-I hsien.
- The prosecutors’ office for the Tainan District court exercises the jruisdiction within the district of tainana city and tainana Hsien.
- The prosecutors’ office for the Kaohsiung District Court exercises the jurisdiction within the district of Kaohsiung Metropolitan area and Kaohsiung Hsien.
- The prosecutors’ office for the Pingtung District court exercises te jurisdiction within the district of Pingtung Hsien.
- The Prosecutors’ Office for the Taitung District Court exercises the jurisdiction within the district of taitung hsien.
- The prosecutors’ office for the Hualien district court exercises the jurisdiction within the district of hualien hsien.
- The prosecutors’ office for the I-Lan District Court exercises the jurisdiction within the district of I-Lan Hsien.
- The prosecutors’ office for the Keelung District court exercises the jurisdiction within the district of Penhu Hsien.
In addition , for the convenience of investigation , four provisional prosecutors’ offices have been established in those hsiens, where no district court has been established or in some other suitable places where territory of a district court is very broad. The titles of such additional offices are as follows:
The titles of such additional offices are as follows:
- The Feng-yuan provisional office of the prosecutors’ office for the Taichung District court.
- The Hsin-Yeng Provisional Office of the prosecutors’ office for Tainan District Court.
- The Chi-shan provisional office of the prosecutors’ office for the Kaohsiung District Court.
- The hong-Chun Provisional office of the prosecutors’ office for the Pingtung District court.
In addition, there are eighteen Detention Centers and five Juvenile Detention Houses affiliated with the respective District prosecutors’ office.
Criminal investigation is an act of preparation conducted by a prosecutors’ office to investigate any suspect and collect and analyze criminal evidence to determine whether or not a suspect should be indicted to the court for his or her suspicion of crime. In accordance with Paragraph 1, Article 228 of the Code of Criminal Procedure (CCP), the prosecutor should have the investigation initiated without hesitation once he or she is aware of the suspicion of a crime via channels of the complaint, self turning -in by perpetrators or other ways (e.g. transferred from the judiciary, investigation delegated by higher authorities, and self-initiated impeachment). In case the suspect’s involvement of an alleged crime is established with probable cause, the prosecutor shall submit the indictment to the court. Otherwise, the prosecutor should refrain from indictment. As for the case over which this Prosecutors’ Office has no jurisdiction, the case shall be transferred to another Prosecutors’ Office with competent jurisdiction.