The formation of the supervisory authority in China
This work is devoted to the amendments to the Constitution of the People's Republic of China in 2018 concerning the creation of a new type of state bodies - supervisory commissions. In addition, special attention is paid to the Law of the People's Republic of China "On Supervision", through which constitutional provisions are being developed. The article examines the legal status of the State Supervisory Commission and local supervisory commissions, and concludes that they have broad powers in the field of combating corruption outside the framework of criminal proceedings. It is proved that the supervisory commissions are a system beyond the control of the administrative and judicial authorities of the People's Republic of China, which is responsible only to the assemblies of People's Representatives. The article also argues that although the activities of the supervisory authorities are independent of other bodies, but due to its actual fusion with the Central Commission of the Communist Party of China for Discipline Inspection, it is under the control of the party, thereby giving it additional leverage over the entire Chinese society.
Keywords: NPC, China, corruption, bribery, reform.
The People's Republic of China is one of the most dynamically developing countries. Moreover, China is a geographical neighbor and one of the most important trade and political partners of the Russian Federation. In this regard, it is necessary to pay attention to the study of its legislation, especially since this state is facing many of the problems that Russia also has.
In 2018, the first five-year term of office of Chinese President Xi Jinping ended, who, having assumed the post of head of state, declared one of the priorities the fight against corruption, which poses a serious danger to this state and the Communist Party of China (hereinafter referred to as the CPC) <1>. A campaign was launched to counter both small (flies) and large (tigers) corrupt officials, as well as a campaign to catch fugitive corrupt officials (foxes) <2>. The official slogan of the anti-corruption struggle was the slogan "Together to beat tigers and flies, hunt foxes." The results of the <3> first five years (2013-2018) of the anti-corruption campaign are presented below <4>.
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<1> Luzyanin S.G., Troshchinsky P.V., Sukhodolov Ya.A. Features of legal regulation of the fight against crime in China // All-Russian Journal of Criminology. 2016. N 4. P. 813.
<2> Sukharenko A.N., Truntsevsky Yu.V. Chinese experience in fighting corruption: state and trends // International public and private law. 2016. N 4. pp. 40 - 42.
<3> Compiled on the basis of data from reports of the General People's Prosecutor's Office of the People's Republic of China.
<4> In 2013, 51,000 cases were initiated, among prominent "tigers" brought to justice: Bo Xilai, a member of the Politburo of the CPC Central Committee of the 17th convocation, secretary of the City Committee of the central subordination of Chongqing; Jiang Zemin, a member of the CPC Central Committee of the 18th convocation, head of the Committee for Control and Management of State Property; Liu Tenan is the head of the State Administration for Energy Affairs. In 2014, 41,487 cases were initiated, among those brought to justice Zhou Yongkang is a former Minister of Public Security of the People's Republic of China, a member of the Standing Committee of the Politburo of the CPC Central Committee of the 17th convocation; Xu Caihou is the deputy chairman of the Central Military Council, a member of the Politburo of the CPC Central Committee of the 17th convocation. In 2015, 40,834 cases were initiated, and the "tiger" from the business Xu Jianyi, chairman of the Board of the First Automobile Corporation of China (FAW), was brought to justice. In 2016, 47,650 cases were initiated, the "tigers" Su Rong, Deputy Chairman of the National Committee of the People's Political Consultative Council, Wang Min, Deputy Chairman of the Committee on Health, Culture and Education of the National People's Congress of the 12th convocation, were under investigation. In 2017 59,539 cases were initiated, such "tigers" as Sun Zhengcai, a member of the Politburo of the CPC Central Committee of the 18th convocation, secretary of the City Committee of the central subordination of Chongqing; Li Ligo, Minister of Civil Administration of the People's Republic of China; Wu Aiying, Minister of Justice of the People's Republic of China; Chen Xiu, chief prosecutor of the city of central subordination of Shanghai, were brought to justice. Data on anti-corruption cases for 2018 were not published at the time of writing, however, it is known that the tigers were brought to justice Yang Jing, Executive Secretary of the State Council of the People's Republic of China; Zhang Shaochong, Deputy Minister of Finance of the People's Republic of China.
In the People's Republic of China, "subordinate rulemaking and internal party regulations are widely used in the field of combating corruption" <5>. This is due to the fact that "the vast majority of civil servants are members of the CPC" <6>. Therefore, information about the possible involvement of a CPC member official in corruption is checked at the first stage by the CPC Central Commission for Discipline Inspection and its territorial bodies, which apply disciplinary measures of educational influence, and if they are insufficient, then initiate criminal prosecution. The intensification of the fight against corruption in the People's Republic of China has put on the agenda issues of applying the experience of the anti-corruption struggle accumulated by the CPC to citizens who are not members of this party, as well as reforming legislation. This is due to the fact that "in the fight against corruption, a balanced combination of preventive and repressive approaches is necessary" <7>, which can be observed in the policy of the "triad of anti-corruption" proclaimed by Xi Jinping <8>.
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<5> Sevalnev V.V. Legislation in the field of anti-corruption: Russia and China (comparative legal aspect) // Journal of Foreign Legislation and Comparative Jurisprudence. 2017. N 3. P. 100.
<6> Troshchinsky P.V. Normative and legal regulation of the struggle of the modern Chinese state against corruption // Actual problems of Russian law. 2016. N 2. P. 172.
Gutsev P.Y. Constitutional foundations of anti-corruption in Russia // Constitutional and municipal law. 2009. N 12. pp. 9-12.
<8> Sevalnev V.V., Tsirin A.M. The experience of the best practices of the civil service of China and Russia // Journal of Foreign Legislation and Comparative Jurisprudence. 2018. N 6. pp. 153 - 159.
It can be said that the apogee of the first five years of the anti-corruption struggle is the introduction on March 11, 2018 of amendments to the Constitution of the People's Republic of China <9> and the adoption of the Law of the People's Republic of China dated March 20, 2018 "On Supervision" <10>. Their goal is to create a new system of state authorities, i.e., "the control and supervisory branch of government typical of East Asian, Confucian states" <11>. According to Chinese researchers, the formation of supervisory authorities as a separate type of public law institutions should help transform the goal of fighting corruption from a temporary struggle to a permanent process of counteraction, from passive control to active supervision and building a system of transparency of government. Thus, the transition from the treatment of symptoms to the treatment of root causes is carried out <12>.
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<9> The Constitution of the People's Republic of China, as amended. dated March 11, 2018
<10> The Law of the People's Republic of China dated March 20, 2018 "On Supervision".
<11> Zhilkibaev S.N. Central Committee of the CPC "On the front line" of the fight against corruption in China // Society and the state in China. 2017. N 22-1. P. 513.
<12> Wei Changdong. The program of reform of the state supervisory Commission: signs, functions and responsibilities // Digest of Social Sciences. 2017. N 6. P. 75.
It is noteworthy that the adoption of the Law and amendments to the Constitution was preceded by an experiment conducted for two years in the provinces of Shanxi and Zhejiang, as well as Beijing, to create supervisory authorities <13>. That is, in fact, the Constitution and the Law "On Supervision" legitimized the practice that began to take shape, which apparently turned out to be positive. It seems that the domestic legislator should turn to the Chinese experience in terms of adopting experimental regulatory legal acts before implementing global legal reforms. This approach makes it possible to identify the shortcomings of the future permanent law and, as a result, correct it or reject its adoption, especially when it comes to amending the Constitution.
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<13> The draft Law of the People's Republic of China on Supervision has been submitted to the NPC of the 13th convocation..
In Chapter 3 of the Constitution of the People's Republic of China, a new version has a section (Articles 123 - 127) dedicated to the State Supervisory Commission, the newly created supreme supervisory and control body of China <14>. At the same time, the supervisory authority should not be confused with the People's Prosecutor's Office, which, according to Article 134 of the Constitution of the People's Republic of China, is a state body overseeing compliance with the rule of law, but its functions differ significantly from what the Supervisory Commission does <15>. According to paragraph 7 of Article 62, paragraph 11 of Article 67 and art. 124 of the Constitution of the People's Republic of China, the State Supervisory Commission consists of the chairman, his deputies and members. The head of the State Supervisory Commission is elected for no more than two terms by the National People's Congress (NPC), and his deputy and members are appointed by the Standing Committee of the NPC in coordination with the head of the State Supervisory Commission. The Commission is accountable only to the NPC and is formed for a period equal to the time of its convocation. At the same time, the powers of the head of the commission may be terminated only by the NPC, and the powers of his deputies and members of the commission - by the Standing Committee of the NPC at the request of the head of the State Supervisory Commission. As for the provincial supervisory commission, its members are elected by a representative body of the appropriate level, and the term of office of its head is equal to the term of office of the People's Congress that elected him.
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<14> Article 123 of the Constitution of the People's Republic of China stipulates that the State, provincial and municipal supervisory commissions are the supervisory bodies of the state.
<15> If we turn to the interpretation of the hieroglyphs that make up the names of these two bodies, then the hieroglyphs that make up the name of the prosecutor's office speak more precisely about supervision, supervision, while the hieroglyphs show not only supervision, but also control and verification. Therefore, it would be more accurate to call the Supervisory Commission the Control Commission.
Article 125 of the Constitution of the People's Republic of China stipulates that the State Supervisory Commission, as the highest supervisory body, directs the work of supervisory commissions established at the provincial and local levels. Supervisory commissions at lower levels are responsible to the bodies that formed them and to supervisory commissions at higher levels. It follows from this that, although local supervisory commissions are created by different assemblies of people's representatives at different levels, they are all part of a single system headed by the State Supervisory Commission. This approach fully complies with the principles of democratic centralism and dual leadership proclaimed in the Constitution of the People's Republic of China and the CPC Charter.
The State Supervisory Commission and commissions at the local and provincial levels have been declared independent of other State authorities. Part 1 of Article 127 of the Constitution of the People's Republic of China stipulates that supervisory commissions exercise their powers independently, in accordance with the Law; any administrative bodies, public organizations and private individuals cannot interfere in their affairs. This is due to the fact that "the birth of a modern supervisory authority is a response to the spread of corruption in administrative authorities, and the positioning of supervisory authorities as the "fourth power" is a symbol of the creation and evolution of the concept of national human rights with Chinese characteristics" <16>.
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<16> Wei Changdong. The program of reform of the state supervisory Commission: signs, functions and responsibilities // Digest of Social Sciences. 2017. N 6. P. 73.
It can be seen from the above that the procedure for the formation of supervisory commissions gives their members real independence from other bodies. At the same time, the role of the head of the State Supervisory Commission becomes extremely important, who can be dismissed only during the session of the National People's Congress <17>. This approach is supported in Chinese literature <18>, noting that thanks to such a scheme of formation of supervisory authorities, relations of mutual restrictions and control are created, one can say, a balance is ensured in public administration. This is exactly what the Constitution of the People's Republic of China requires, in Part 2 of art. 127 which stipulates that supervisory authorities, when considering cases of unlawful abuse of authority, must mutually cooperate and mutually restrict judicial and law enforcement agencies, prosecutor's offices.
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<17> Sessions of the National People's Congress are held once a year.
<18> Jiang Wenhua. Some issues that should be paid attention to in the Law "On Supervision" // Review of Legislation. 2018. N 1. P. 182.
Meanwhile, the provisions of Articles 124 - 127 of the Constitution of the People's Republic of China are offset by the fact that the head of the State Supervisory Commission is simultaneously the deputy head of the CPC Central Commission for Discipline Inspection <19>. That is, although the State Supervisory Commission is formed by a representative body, in fact it, and therefore the provincial and local supervisory authorities, are directly dependent on the Communist Party of China. It can be said that these relations with the CPC actually turn the State Supervisory Commission into both a state and a party body, which, as the researchers note, ensures the implementation of the leadership role of the party <20>. On the one hand, this helps to strengthen the CPC and strengthen its leadership in the country, and on the other hand, it prevents the transformation of supervisory authorities into uncontrolled ones, which Chinese lawyers are very afraid of <22>.
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<19> Biography of Comrade Yang Xiaodu.
<20> Li Hongbo. Place and regulatory system of supervision rules // Modern law. 2019. N 5. P. 43.
<21> He Shiqing. Political and legal analysis of the system of the state supervisory Commission // Bulletin of the Wuhan University of Science and Technology. The series "Social Sciences". 2018. Issue 20. N 3. P. 245.
<22> Jiang Wenhua. Some issues that should be addressed in the Law "On Supervision" // Review of Legislation. 2018. N 1. P. 182.
As noted above, the amendments to the Constitution were covered in more detail in the Law of the People's Republic of China "On Supervision". This regulatory legal act establishes a list of issues within the competence of the supervisory authorities.
Thus, according to Article 15 of the said Law, the State Supervisory Commission may conduct an audit against any persons who are in one way or another connected or previously associated with the state, regardless of their membership in the CPC <23>. Such verification, according to Article 4 of the Law, includes the collection of various evidence of a person's involvement in corruption, interviewing witnesses, appointment of examinations, etc. At the same time, according to Article 33 of the Law, the evidence obtained in this way is admissible when the case is considered by the court. If necessary, the State Supervisory Commission may also detain a suspect <24>. In fact, the so-called supervision and discipline inspection represent full-fledged investigative actions, but a criminal case is not initiated until it is transferred to the prosecutor's office. Consequently, a person detained by representatives of the supervisory authorities is deprived of the right to a lawyer, since in this situation, due to the lack of criminal prosecution, the CPC of the People's Republic of China does not apply. Moreover, the family of the detainee is not even informed about the fact of detention, if there are grounds to believe that evidence may be destroyed. This approach significantly infringes on the rights of the suspect and his relatives, who find themselves in the dark about his fate until an official message about the verification of a citizen appears on the website of the supervisory commission or in the media.
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<23> These include government civil servants, military personnel, judges, prosecutors, employees of state-owned enterprises, teachers and teachers of public schools and universities, employees of state institutions of medicine, culture and sports, deputies of people's assemblies at all levels.
<24> According to Article 43 of the Law of the People's Republic of China "On Supervision", a person can be detained for a total of no more than 6 months.
The State Supervisory Commission has fairly broad powers not only to conduct investigations, but also to implement international cooperation in the field of anti-corruption activities. Thus, according to Articles 50 and 51 of the Law of the People's Republic of China "On Supervision", the State Commission coordinates international cooperation with other countries, regions and international organizations for the conclusion and execution of international treaties on combating corruption, extradition of criminals, judicial assistance. That is, the powers that were previously assigned to other state bodies have now been transferred to the commission.
Thus, based on the above, it can be seen that in March 2018, a separate system of state bodies was created in the People's Republic of China - the supervisory and control system, which is completely independent of administrative and judicial authorities, but is closely linked to the CPC. The fact that only the CPC and the People's Assemblies can actually influence the supervisory bodies, and the latter to a lesser extent due to their session activities, significantly strengthens the party's control over society. Another important consequence of the amendments to the Constitution of the People's Republic of China and the adoption of the Law "On Supervision" is the legitimization at the national level of the mechanism of disciplinary investigations previously adopted within the Communist Party. Although the experiment conducted for two years before the adoption of amendments to the Constitution showed the effectiveness of such an approach in the fight against corruption, it can hardly be called acceptable, for example, for Russia, since a suspect during inspections, which are actually investigative actions, is deprived of a significant number of rights provided for in the criminal procedure legislation of the Russian Federation. Meanwhile, the very idea of establishing strong and independent oversight bodies deserves attention and further study.
