I. Dissection of the Supervision Law’s Empowerment Article

According to Article 3 of the Supervision Law, Supervisory Commissions shall “supervise all functionaries exercising public power (hereinafter as “public functionaries"), investigate duty-related violations and crimes, conduct the construction of clean governance and anti-corruption work, and uphold the authority of the Constitution and laws." With the aid of Interpretations of the Supervision Law of People’s Republic of China (hereinafter as “Supervision Law Interpretations") issued by the Regulatory Affairs Office of the National Supervisory Commission, we may dissect this empowerment Article in three folds.

Prior to the enactment of the Supervision Law, the now invalid Administrative Supervision Law only targeted certain established functionaries exercising Administrative power. For one thing, it overlooks some grassroots functionaries exercising Administrative power, such as head of the neighborhood committee. For another, it overlooks various functionaries exercising other types of public power, such as civil servants of the Judicial branch. Also, it overlooks other “related personnel" who are not public functionaries per se but may still corrupt the public power. For example, the offeror of bribes or the co-conspirator in duty-related crimes. In hindsight, the Supervision Law closes these loopholes, and clarifies in the Supervision Law Interpretations that it is the possession of public power, not public office, that makes someone a “functionary exercising public power".[2] In a nutshell, it focuses to preserve the integrity of the public power.

Prior to the enactment of the Supervision Law, the now invalid Administrative Supervision Law only targeted certain Administrative functionaries’ violations of administrative disciplinary rules, while the Anti-corruption Bureau under the People’s Procuratorate only targeted State organ functionaries’ duty related crimes pursuant to the Criminal Procedure Law of the People's Republic of China (hereinafter as “Criminal Procedure Law"). No surprise such arrangement created an enforcement vacuum. For instance, for someone who is neither an Administrative functionary nor a State Organ functionary, his or her duty related violations are technically out of both organizations’ reach. By targeting duty-related violations and crimes of all functionaries exercising public power, the Supervision Law eliminates this grey area.[3] 

In the passing decades, CPC’s Commission for Discipline Inspection has established an effective and practicable working mechanism to supervise CPC members’ violation of Party disciplinary rules. One example of this is the “Two Specifications", an investigatory measure that summons a CPC member to clarify certain issues during specified time and in specified location. However, there was no consolidated means to supervise the duty-related violations and crimes of those CPC members acting as functionaries exercising public power. And despite of its proven result, “Two Specifications" is often criticized for lacking legal basis and enforcement visibility. The enactment of the Supervision Law solves both problems. On one hand, it builds up the nationwide Supervision alongside with the CPC Party Supervision. On the other hand, it legalizes the “Two Specifications" with the newly construed “Article 22 Detention". According to the Supervision Law Interpretations, CPC’s Party supervision and Supervisory Commission’s nationwide supervision are “two sides of the same coin" that collectively strengthens the Anti-corruption force. [4]

II. Discussion of the Supervision Subject’s Right to Legal Assistance under the Supervision Law

As a starting point of our analysis, we think that the Supervision Law and the Criminal Procedure Law are driven by different legislative concerns. While it peels off the power to supervise duty-related crimes, the Supervision Law does not aim to disturb or replace the preexisting Criminal detention and prosecution flow established by the Criminal Procedure Law. In short, The Supervision Law redefines the national Supervision system, not the Judicial system.

However, since certain provisions of the Supervision Law (such as the provisions governing illegal evidence preclusion, onsite investigation etc.) almost mirror those in the Criminal Procedure Law, some commentators have been asking: whether the supervision subject’s right to legal assistance, which is not mentioned in the Supervision Law, shall be the same as the Criminal suspect’s as per Criminal Procedure Law? Not surprisingly, experts’ opinions diverge on this point….

In an effort not to mislead anyone, we decide to address this sensitive issue in the most objective way. That is strict adherence to the original wordings of the Supervision Law and the Supervision Law Interpretations. After all, for the moment, no one could say for sure what kind of legal assistance is the supervision subject entitled to. All we could do is gather enough information and be prepared.

To begin with, it is worth noting that, only in Article 47, the Supervision Law explicitly quotes the Criminal Procedure Law. And in that quotation, the application of Criminal Procedure Law is limited to cases “referred by the Supervisory Body to the People's Procuratorate", and merely for People's Procuratorate to decide the “compulsive measures" and the criteria “not to prosecute". In other words, in the universe of the Supervision Law, the application of Criminal Procedure law only kicks in after the supervision subject is officially classified as a Criminal suspect, i.e. when the Supervisory Commission hands him over to the People’s Procuratorate. That means there is no overlapping period where the supervision subject is governed by both the Supervision Law and the Criminal Procedure Law.

Not to mention that the “Article 22 Detention" is a classified compulsive measure under the Criminal Procedure Law. According to the Supervision Law Interpretations, the “Article 22 Detention" is a major leap in promoting the Rule of Law because it has legalized CPC’s “Two Specifications" and created a new force to tackle corruption.[5] In addition, the Supervision Law showcases three significant improvements over Criminal Procedure Law. First, the length of the “Article 22 Detention" is materially shorter than that of the Criminal detention. The maximum detention period per Article 22 is six months. In comparison, the entire Criminal dentition period could go beyond twenty months. Second, the treatment one receives under the “Article 22 Detention" is a lot better than that of the Criminal detention. In those National Supervision System pilot zones, the supervision subject enjoys individual bedroom without physical restraints. In contrast, the Criminal suspect generally lives in shared cell, and may be required to put on physical restraints. Third, the Supervision Law requires full-time audio and video recording over search, seizure and other important discovery stages. To compare, Article 121 of the Criminal Procedure Law only mandates audio and video recording where the Criminal suspect could be punished with life imprisonment or death sentence.[6]

Furthermore, the Supervision Law Interpretations stress that the Supervisory Committee wields power of investigation, not power of detection; the supervision subject is functionaries exercising public power, not regular Criminal suspects; the investigation is towards duty-related violations and crimes, not ordinary Criminal offenses. Thus, the Supervisory Commission shall also use ideological tools, such as CPC’s Charter and disciplinary rules, to persuade and educate the supervision subject, making him genuinely sorry for what he or she did. To conclude, what Supervisory Commission does is more than collecting evidence and proving offenses.[7]

Finally, it is worth noting that in the full edition of the Proposed Amendment of the Criminal Procedure Law of People’s Republic of China, the drafters propose to revoke the People’s Procuratorate’s detection power in corruption and bribery cases, and to lift the supervision subject’s “Article 22 Detention" once the People’s Procuratorate takes him into custody as a Criminal suspect. This shows some legislative efforts to close the enforcement gap between the Supervision Law and the Criminal Procedure Law.

III. Discussion of “Related Personnel’s" Exposure under the Supervision Law

As mentioned earlier, Per Article 15, the Supervision Law targets both public functionaries and other “related personnel". Yet, neither the Supervision Law nor the Supervision Law Interpretations sets the definition for those “related personnel". Adding up the underlying legislative intent and other relevant provisions of the Supervision Law, we hereby summarize the gist of “related personnel" and their respective exposure for your reference.

The first sentence of Article 15 reads, “[s]upervisory organs shall supervise the following public functionaries and related personnel". Since public functionaries and related personnel are listed side by side, the only logical interpretation would be: related personnel themselves are not public functionaries.

Although the Supervision Law Interpretations does not explain why “related personnel" are included as one of the supervision targets, it does explain that “public functionaries’ power is not their private possession; it is a duty entrusted by the people".[8] Accordingly, public functionaries cannot trade away the power to other related personnel for personal interests. That would be a blatant betrayal of people’s trust. Also, the Supervision Law Interpretations emphasizes that the political stand of CPC is zero tolerance of corruption.[9] Logically this should cover all kinds of corruption, including corruption committed by public functionaries and aiding and abetting of corruption committed by related personnel.

Under the structure of the Supervision Law, “related personnel" are related to the matter on different levels. For instance, “related personnel" could be culpable coconspirator or innocent witness. Thus, their risk of exposure is also different from one another. Based on our calculation, there are altogether twelve Articles in the Supervision Law that touches upon the rights, obligations and risks of “related personnel". Please refer to the following table for an overview.

Lately, some of our international-corporate clients have been asking us how the Supervision Law might impact their business in China. While the classic answer remains “it depends", there is a common pitfall that all should watch out for. That is the scope of public functionaries. Contrary to the general perception, low-rank officials, such as the head of the village committee, are also public functionaries governed by the Supervision Law. In other words, under the Supervision Law, if a company offers gifts to the head of the village committee in a local marketing event, the government might label the company as a “related personnel" who corrupts the public power. If that company lacks adequate understanding of the Supervision Law, it might not even realize its dealing is culpable. Therefore, to minimize the risk of exposure, we suggest all transnational enterprises doing business in China act promptly for:

(1) a thorough review of the corporate compliance frame work, and

(2) a series of employee trainings regarding the Dos and Don’ts under the Supervision Law.

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