Introduction to The Prosecutorial System
A Brief Introduction To The Prosecutorial System Of The Republic Of China
I. 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 High 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.
II. 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.
III. Limitation of the Function of the Prosecutor A Prosecutor is subject of the following limitation in the exercise of his/her function:
A prosecutor while in office is prohibited from:
b. 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 Criminal 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.
2. The Guarantees Accorded to Prosecutors Prosecutors are accorded with the following guarantees:
a. Guarantee of livelihood: The salary and allowance of a prosecutor while in office, as well as his/her pension are covered.
b. Career guarantee: Prosecutors and judges are lifetime appointments.
IV. The Function of Prosecutors
A Prosecutor shall make a disposition of non-prosecution in one of the following circumstances:
a. The same case is subject to a final judgment previously rendered;
b. The statutory period of limitations has already expired;
c. There has already been an amnesty;
d. A law enacted after the commission of the crime abolishes the punishment;
e. 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;
f. The suspect is dead;
g. The court has no jurisdiction over the suspect;
h. The act is not punishable;
i. The crime is exempt from punishment by law;
j. 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.
V. 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 competent prosecutors’ office or military prosecutor) or the competent juvenile court.
3.Assissting in private prosecution
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.
4.Taking charge of private prosecution
a. If a complainant, who is summoned in accordance with the law, fails to appear in court without good reason.
b. If he/she appears but makes no statement.
c. If he/she appears but leaves without the permission of the court.
d. 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.
e. 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.
f. 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.
VI. The Legislative Principles of the Prosecutorial Power
1.The Principle of Substative Discovery of Facts
2.The Principles of Statutory and Discretionary Prosecution
3.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:
b. 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.
VII. The procedures for handling cases of reconsideration are as follows:
1. As for the original prosecutor:
a. 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.
b. 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.
c. 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.
2. 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:
a. county magistrate or mayor.
b. The head of a police department, commissioner of police or commissioner of public safety.
c. Military police officer
d. Those who shall follow the instructions of a prosecutor in investigating a crime are:
e. Commissioned police officers
f. Military police officers or non-commis sioned officers.
g. 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:
b. military policemen
c. persons who are authorized to exercise the duties of judicial policment in sepcific matters.
VIII. 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:
1.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.
IX. The titles of such additional offices are as follows:
1.The Feng-yuan provisional office of the prosecutors’ office for the Taichung District court.
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