One of the more interesting issues of Chinese state institutional organization is the relationship between the Communist Party and the State. I have suggested that though the CCP does not enjoy an extra constitutional role in Chinese political organization, it does exist autonomously from the state and its organs. Indeed, state organs, under the constitution, must accept the leadership role of the CCP as part of understanding of constitutional fidelity under the Chinese constitutional system. See, Larry Catá Backer, A Constitutional Court for China within the Chinese Communist Party: Scientific Development and the Institutional Role of the CCP, 43(3) Suffolk Law Review 593-624 (2010).
At the same time, political citizenship is concentrated in and exercised through the cadres of the Communist Party in its leadership role, while state officials serve in the administrative role described for them through the State Constitution. Larry Catá, Backer, "The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism," Penn State Legal Studies Research Paper No. 05-2009.
(From http://www.12388.gov.cn/xf/index.html; the banner of the web site for the Central Commission for Discipline Inspection in China; see Central Commission for Discipline Inspection Opens Website, China Digital Times, Oct. 28, 2009).
At the same time, political citizenship is concentrated in and exercised through the cadres of the Communist Party in its leadership role, while state officials serve in the administrative role described for them through the State Constitution. Larry Catá, Backer, "The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism," Penn State Legal Studies Research Paper No. 05-2009.
The autonomy of the CCP within Chinese governance systems raises a host of interesting issues. One of the less well known of these, particularly because it has few analogues (and therefore little resonance) in the West, is the institutional power of the CCP to discipline its members. Party discipline is something quite different from the sort of intra-group discipline of Western political parties, or (outside of Islam) the disciplining of members within religious communities. Because CCP members wield substantial political power as members of the political organ within the nation that retains the authority to set and protect the political framework within which the organs of state government operate, the issue of member discipline become an intensely political one. It is bound up in the primary requirement of the Party to lead by example, and it affects the legitimacy of the institution of the Party to preserve its leadership role within the Chinese constitutional system. But because CCP members also serve as officials within the state apparatus, CCP discipline has a significant connection to the operation of the government. That may bring the institutions of the state, and law, into play, in the context of disciplinary investigations that are grounded on what are shown to be violations of national law. But if the process and protections afforded individuals are distinct as between state prosecution and CCP discipline, how are these two important mechanics of legitimating actions--one focused on the integrity of the CCP in its leadership role, the other focused on the government in its administrative role--to be harmonized?
For Westerners, the mechanics of Party discipline, like the role of the CCP itself, within China, is difficult to properly understand, for lack of legitimating institutional analogies from which to draw. And the actual process of discipline is not analogous to the process systems that are at the heart of Western practice. A Financial Times story from a few years ago illustrates these points well. Tom Mitchell, "The case of the Chinese mayor who wasn’t there," Financial Times, Aug. 12, 2009.
On the first weekend in June, residents in one of China’s richest cities were subjected to an Orwellian charade. The mayor of Shenzhen, in southern Guangdong province, had gone missing on a Friday, with no explanation provided for his absence at official events.In neighbouring Hong Kong, the Chinese special administrative region where press freedoms are still protected, media outlets reported that Xu Zongheng was the target of a corruption probe. The official Xinhua news agency finally issued a single-sentence dispatch on Monday confirming Mr Xu’s detention for “serious violations of discipline”. An “acting mayor” was soon appointed and nothing more was said of the matter.For almost four full days, everyone in Shenzhen turned a blind eye. Government officials who knew the mayor was in trouble spoke no evil. Local journalists and editors who were in the loop wrote no evil. It is one thing to praise the naked emperor’s fine clothes – and quite another to pretend he is there when he just ain’t.* * * *In China, senior government and Communist party officials vanish all the time without causing so much as a ripple in the domestic media.Like so many cadres before him, Mr Xu disappeared into the jaws of the Chinese Communist party’s disciplinary inspection commission. The powerful commission’s so-called shuang-gui (or “twin regulation”) powers allow it to detain party officials indefinitely. In theory, officials caught up in this extra-judicial twilight zone are merely making themselves available to party investigators and can be released later without stain. In reality, the commission’s targets are routinely handed over to government prosecutors months or even years later, all but gift-wrapped for summary show trials and sentencing.In a more famous example of shuang-gui in action, in 2003 the head of Bank of China’s Hong Kong subsidiary disappeared for two years before resurfacing in a courtroom in Changchun, a city in the country’s far north-east. There he was convicted for a corruption spree that had allegedly begun nine years earlier in Shanghai. When it comes to “renditioning” suspects from one jurisdiction to another, the disciplinary inspection commission appears to be as accomplished as the CIA.
The Chinese Party apparatus has responded to these sorts of stories.
A CPC official on Tuesday for the first time explained a Chinese anti-corruption term, translated as "double designations", which is used to question Party members being investigated for violating Party discipline.
Gan Yisheng, secretary-general of the Central Commission for Discipline Inspection of the CPC said at a press conference that "double designations" means Party members are requested to attend questioning sessions at a designated place and for a designated duration.
Gan said there are stringent regulations governing "double designation" procedures which must be pre-approved. Corporal punishment is banned and Party member's dignity must be respected throughout the questioning.
During "double designations", the relevant Party members are still regarded as a comrade, as they have not proven to have violated laws, he said. (From CPC Official Explains "Double Designations", CRI English,.com, Sept. 26, 2009).
At the same time, the Western press appears to favor (in a positive light usually but not always) stories that confirm the vigor of CCP responses to corruption and its extirpation. Jaime Flor-Cruz, Chinese Communists, 90 years later, still fighting corruption, CNN June 25, 2011. " As the Communist Party of China (CPC) celebrates the 90th anniversary of its founding, party officials are pledging to continue the fight against corruption. . . .In response to the public outcry, the CPC is vowing to sniff out corrupt officials. Wu says his anti-graft group last year investigated 139,621 cases of malfeasance and punished 146,517 people. Of those cases, 5,373 have been referred to the courts for criminal persecution. . . . The press, aided by netizens, has been working zealously to expose the corruption cases. Internet users have set up websites designed to help blow the whistle." Id., (quoting in part Wu Yuliang, deputy secretary of the CPC Central Commission for Discipline Inspection, the party's anti-corruption body). The Western press pays less attention to the processes or systems used to effectuate these anti-corruption campaigns.
(From Jaime Flor-Cruz, Chinese Communists, 90 years later, still fighting corruption, CNN June 25, 2011 (Soldiers and civilians perform "red" songs at Shijingshan Stadium on Tuesday in Beijing, China.))
Prominent Western scholars of China have noted the potential tensions in a system in which the Communist Party invokes a rule system not derived specifically from or manged through, the laws enacted under the umbrella of the State Constitution and its National People's Congress legislative structure. difficulty . "Shuanggui poses a challenge to our understanding of the Chinese legal system. It is frankly admitted by just about everyone involved to be unlawful - in the Chinese system, all forms of detention must be authorized by law passed by the National People's Congress or its Standing Committee, and shuanggui has no such authorization. Yet it is open - the existence of the system itself is not a state secret - and pervasive. Thus, it cannot be dismissed as a mere aberration; a proper understanding of the system has to account for shuanggui as a constitutive element, not a mistake." Donald Clarke, Shuanggui and extralegal detention in China, China Law Prof Blog, March 1, 2008.
There are few studies of the practice in the West. Among the best is Flora Sapio, "Shuanggui and Extralegal Detention in China," China Information 2008 22: 7 (DOI: 10.1177/0920203X07087720) (online version). Professor Sapio ultimately argues that "Shuanggui is nothing new: it is just solitary confinement under a different name. Therefore it could be labeled as a “neotraditional” practice the regime is unable to suppress. Coupled with other factors, shuanggui could eventually cause the regime to collapse. . . . The standardization of Party norms on detention has not changed the nature of shuanggui, which remains a form of extralegal detention and should therefore be abolished." (Ibid., 24-25). She notes only two studies of the practice undertaken in the West: Graham Young, “Control and Style: Discipline Inspection Commissions since the 11th Congress,” The China Quarterly, no. 97 (1984): 24–52; Chang I-Huai, “An Analysis of the CCP’s Role in Mainland China’s State Supervisory Systems,” Issues & Studies 34, no. 1 (1998): 38–78. (cited in Sapio, supra, at page26 note 3).
The place of Shaunggui within the Chinese legal system, and the political and constitutional implications of its character as extra-legal, provides a base from which one can consider the relationship between law, legal process, the state and the Party apparatus under the umbrella of the Chinese constitutional system. If, indeed, Shuang gui exists outside the law, then its legitimacy and methods are subject to question within the framework of the law system developed through the National People's Congress system and Western (and some internal) criticism might be considered important. But is it possible to consider Shuanggui as within the legal system, even if beyond the reach of the legal process and rule systems derived from actions of the National People's Congress and the state constitution? More precisely, if lawfulness can derive from sources outside or beyond the state constitution, might those serve as a basis for understanding the normative framework within which Shuanggui can exist within the structure of Chinese constitutionalism? The source of that constitutional authority, and its democratic institutionalization, might be found within the constitution of the Chinese Communist Party itself. But reliance on the CCP Constitution would also have to rest on the idea that the CCP constitution itself forms a part of the constitutional structure of China. And if that is the case, then shuanggui cannot be understood without an understanding of the construction of Chinese constitutionalism, that is, of the relationship between State and Party Constitution in the formation of the Chinese constitutional system--not grounded in a single document constituting a state apparatus, but instead based on a dual set of constituting actions: one directed to the formation of the state apparatus and the other to the constitution of the political superstructure of the nation. Within this context, the debate about Shuanggui and its application can take on a substantially distinct character.
This post begins to look more closely at the issue of Shuang gui in the context of the Chinese State-Party constitutional system. We start with the simplest formal description of Shuang gui from within. This was prepared by my research assistant Gao Shan. It can be read usefully within the descriptive framework of Professor Sapio's work cited above. Future posts will begin exploring the concepts, their application within the Party and the issues of Party discipline in the context of state operation. The object will be to move from description of mechanics, to its conventional justification, and finally to the central issue--the legitimacy of Chinese constitutionalism reflected in the issues of the legitimacy of Shuanggui itself. I will suggest, ultimately, that it is quite plausible to understand shuanggui as legitimate and falling within the legal limits of Chinese constitutionalism, but only when one understands Chinese constitutionalism in its systemic context. In this context, shuanggui can be understood as essential for the performance by the Chinese Communist Party of its Constitutional obligations according to the premises of its own constitution (and thus subject to law under the State Constitution). Once the legitimacy of shaunggui is thus properly understood, one can move from the false issue of its legitimacy (and that of the current system) to the far more important one of the appropriate construction of shuanggui and its implementation as a device of Party discipline in light of Chinese constitutional principles
There are few studies of the practice in the West. Among the best is Flora Sapio, "Shuanggui and Extralegal Detention in China," China Information 2008 22: 7 (DOI: 10.1177/0920203X07087720) (online version). Professor Sapio ultimately argues that "Shuanggui is nothing new: it is just solitary confinement under a different name. Therefore it could be labeled as a “neotraditional” practice the regime is unable to suppress. Coupled with other factors, shuanggui could eventually cause the regime to collapse. . . . The standardization of Party norms on detention has not changed the nature of shuanggui, which remains a form of extralegal detention and should therefore be abolished." (Ibid., 24-25). She notes only two studies of the practice undertaken in the West: Graham Young, “Control and Style: Discipline Inspection Commissions since the 11th Congress,” The China Quarterly, no. 97 (1984): 24–52; Chang I-Huai, “An Analysis of the CCP’s Role in Mainland China’s State Supervisory Systems,” Issues & Studies 34, no. 1 (1998): 38–78. (cited in Sapio, supra, at page26 note 3).
The place of Shaunggui within the Chinese legal system, and the political and constitutional implications of its character as extra-legal, provides a base from which one can consider the relationship between law, legal process, the state and the Party apparatus under the umbrella of the Chinese constitutional system. If, indeed, Shuang gui exists outside the law, then its legitimacy and methods are subject to question within the framework of the law system developed through the National People's Congress system and Western (and some internal) criticism might be considered important. But is it possible to consider Shuanggui as within the legal system, even if beyond the reach of the legal process and rule systems derived from actions of the National People's Congress and the state constitution? More precisely, if lawfulness can derive from sources outside or beyond the state constitution, might those serve as a basis for understanding the normative framework within which Shuanggui can exist within the structure of Chinese constitutionalism? The source of that constitutional authority, and its democratic institutionalization, might be found within the constitution of the Chinese Communist Party itself. But reliance on the CCP Constitution would also have to rest on the idea that the CCP constitution itself forms a part of the constitutional structure of China. And if that is the case, then shuanggui cannot be understood without an understanding of the construction of Chinese constitutionalism, that is, of the relationship between State and Party Constitution in the formation of the Chinese constitutional system--not grounded in a single document constituting a state apparatus, but instead based on a dual set of constituting actions: one directed to the formation of the state apparatus and the other to the constitution of the political superstructure of the nation. Within this context, the debate about Shuanggui and its application can take on a substantially distinct character.
This post begins to look more closely at the issue of Shuang gui in the context of the Chinese State-Party constitutional system. We start with the simplest formal description of Shuang gui from within. This was prepared by my research assistant Gao Shan. It can be read usefully within the descriptive framework of Professor Sapio's work cited above. Future posts will begin exploring the concepts, their application within the Party and the issues of Party discipline in the context of state operation. The object will be to move from description of mechanics, to its conventional justification, and finally to the central issue--the legitimacy of Chinese constitutionalism reflected in the issues of the legitimacy of Shuanggui itself. I will suggest, ultimately, that it is quite plausible to understand shuanggui as legitimate and falling within the legal limits of Chinese constitutionalism, but only when one understands Chinese constitutionalism in its systemic context. In this context, shuanggui can be understood as essential for the performance by the Chinese Communist Party of its Constitutional obligations according to the premises of its own constitution (and thus subject to law under the State Constitution). Once the legitimacy of shaunggui is thus properly understood, one can move from the false issue of its legitimacy (and that of the current system) to the far more important one of the appropriate construction of shuanggui and its implementation as a device of Party discipline in light of Chinese constitutional principles
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The introduction of Shuang gui
This article gives reader a general overview of Shuanggui, what is Shuangui, how it created, who enforce it, the procedural of Shuang gui investigation and how cases transfer between different government organs and party discipline inspection organ. It is not get into the rule of Shuang kai, a discipline punishment measurement, which will be specific in an individual essay.
Table of Contents:
- Basic concepts: what is Shuang gui and Liang zhi
- What is Shuang gui?
- How it created?
- What is Liang zhi?
- The connection between Shuang gui and Liangzhi
- What is Shuang gui?
- Shuang gui, an efficient way against officers’ violation of discipline
- How CCDI or CDI conduct an Shuang gui investigation?
- Who is the suspect?
- Preliminary verification
- Filling the case, a graduated system
- Investigation
- Designated place: interrogation premise
- The punishment decision
- Who is the suspect?
- Transfer of the case
- Cases from prosecutor, police to CDI
- Cases from CDI to PP or police
- Specification about the court
- Rumors of a Xiamen Yuanhua case
- Cases from prosecutor, police to CDI
- CCDI: Central Commission of Discipline Investigation, zhongyang ji wei 中央纪委
- CDI: Commission of Discipline Investigation, Ji wei 纪委
- MOS: Ministry of Supervision of the People’s Republic of China
- CPC: Communist Party of China
- NPC: National People’s Congress
- PSD: Public Security Department
- SPP: Supreme People’s Procuratorate of People’s Republic of China
- PC: People’s Court
- PP: People’s Procuratorate
Shuang gui, 双规 a Chinese anti-corruption term, translated as “double designations”i, which is used to question Party members being investigated for violating Party discipline. The plain meaning of the words, according to Gan Yisheng, the secretary-general of the CCDI, suggests that Party members are requested to attend questioning sessions at a designated place and for a designated duration.
In general, Shang gui is what people called the rule of Article 28, section 3 of Regulations of CPC on Discipline Regulations. Under this provision:
2. How was it created?• Any person or institutes who know the matters of the case shall bear the duty of providing evidence. According to the procedural of the regulations, the investigation group has the power to adopt the following measures:(3) Requiring relevant person answering questions and clarifying issues at
designated duration and designated place.
Shuang gui, a measurement that was first used in Liang Xiangyin’s embezzlement investigation in 1989. At that time due to Liang’s position, the governor of Hainan province, a special investigation group was established by CCDI and MOS. The investigation did not went on very well because one key witness refused to release any useful information and her confinement was about to expire. It was obvious that in order to avoid any potential liabilities, the key witness would act in collision with the suspect to make confession identical and ruin the investigation. At that point, the minister of MOS, Wei Jianxing, instructed the investigation group tried to keep thekey witness stay in the interrogation place as possible as they can but not infringe her civil right. Finally, the investigation group acquired the substantial evidence from that key witness.
Later in an internal meeting of MOS, the minister suggested to keep and systematize this “designed duration and designed place” rule. During the 90s, Regulations of CPC on disciplinary Regulations incorporated this rule and people always call it as “Shuang gui.”
3. What is Liangzhi?
Shuang gui is a rule that only applies to the CPC member, however, for non CPC member who works for the governments or state owned enterprises and violates administrative disciplines, the rule of Liang zhi 两指 will apply.
Under section 3 of article 20 of Law of PRC on Administrative Supervision:
In investigating violations of the rules of administrative discipline, a supervisory organ may adopt the following measures in light of actual conditions and needs:
(3) to order the persons suspected of violating the rules of administrative discipline to explain and clarify questions relevant to the matters under investigation at a designated time and place; however, no such persons may be taken into custody or detained in disguised form;
4. The connection between Shuang gui and Liangzhi
Shuang gui was based on the CPC’s internal disciplinary regulations, which is approved by National Party’s Congress and applies to CPC member. CCDI is the implementer. Liang zhi is the rule of Law of PRC on Administrative Supervision and approved by NPC. MOS enforce this rule and the law of administrative and supervision. Thus, in theory, the rule of Shuang gui is more like an internal auditing rule of a corporations and “Liang zhi” is a public rule that applies to the whole society. Although Shuang gui and Liangzhi are different system that based on different authorities, in the real world their boundary is very vague.
In practice, MOS and CCDI are actually administrated by the same group of people under two different titles and they are even sharing same website portal. Because on February 17, 1994, according to the decisions of CPC’s central committee and State of Council, MOS and CCDI merged into each other. MOS is under the State of Council, and CCDI is under the CPC’s Central organ. Moreover, MOS’s minister at each level served as the deputy secretary of CCDI. Considering the fact that most of the government officials are CPC members, this arrangement was reasonable and practical. Finally, the direct result of this merge is that since the merge of 2 organs, party members will subject to CCDI’s investigation when he violates either the party or administrative disciplines. Thus, when the rest of the article talks about discipline, it can refer to the party or the administrative discipline.
II. Shuang gui, an efficient way against officers’ violation of discipline
1. Powerful Implementer CCDI and its structure
CCDI was the implementer of Shuang gui, they are responsible for receiving the complaints, filling the case, conducting investigation and making punishment decision. In some level, their function is like the combination of the police station and the prosecutor.
The following diagram of CPC structure shows the authority and construction of CCDI in relation with other CPC’s organization.
III. How CCDI or CDI conduct an investigation?
1. Who is the suspect?
2. Preliminary verification
3. Filling the case, a graduated system
4. Investigation
5. Designated place: interrogation premise
6. The punishment decision
3. Specification about the court
4. Rumors of a Xiamen Yuanhua case
References
i CPC official explains "double designations" http://english.peopledaily.com.cn/200609/26/eng20060926_306561.html
ii The Central Organizations of the CPC
http://www.gov.cn/english/2005-‐09/02/content_28610.htm
iii This can be proved by checking the website of CCDI and its branches.
iviv The Central Committee of Discipline Inspection http://en.wikipedia.org/wiki/Central_Commission_for_Discipline_Inspection_of_the_Communist_Party_of_China
v Chart of the Central Organizations of the CPC
http://english.gov.cn/2005-‐09/02/content_28612.htm
vi Document of the Central Commission for Discipline Inspection), no. 7, 5 June 1998
vii Article 10 of CPC’s disciplinary inspection working regulation
viii Article 28 of CPC’s disciplinary inspection working regulation
ix Opinions on CCDI regarding to further strengthening the standard of investigation 中共中央关于进一步加强规 范办案工作的意见
x The measurements on strengthening cooperation between Shan dong CDI, Department of Organization of Shan dong, PC of Shan dong, PP, PSD and Shandong Auditing office for investing discipline and law violation cases (trial)
Although there are many controversies regarding to the constitutionality of Shuag gui, it proved to be an efficient way to against corruption since the birth of it.
The government officers are afraid of Shuang gui very much for two reasons. First, Shuan gui is a serious investigation that conducted in a very secret way. Anyone whose parents, friends or himself/ herself works in the government or state owned enterprises probably familiar with such stories: It usually starts with one normal day, without any sign or notification, one officer was taken away by a van with people in casual cloth and he never appeared in the public view again. Later, people might hear the news that the officer is convicted for some crime by the local court after 6 months or a year.
The second reason for officers being afraid of Shuang gui is the powerful implementer CCDI and their way of conducting investigation. 1. Powerful Implementer CCDI and its structure
CCDI was the implementer of Shuang gui, they are responsible for receiving the complaints, filling the case, conducting investigation and making punishment decision. In some level, their function is like the combination of the police station and the prosecutor.
As the guard of internal anti-corruption mechanism, CCDI works under the Party Central Committee. The local discipline inspection commissions works under the dual leadership of the Party committees at the same level and discipline inspection commissions at the next higher level. The term of office of discipline inspection commissions is the same as that of the Party committees.ii In the practice, the secretary of CDI also served as the member of CPC’s standing committee at the same level. iii At CPC’s top level, since the re-establish of CCDI, 4 out of 5 secretary of CCDI served the position of politburo member of CPCiv.
The following diagram of CPC structure shows the authority and construction of CCDI in relation with other CPC’s organization.
The organization of CCDI’s branch (take Wuhan as an example)
General office
[in charge of the general administratio n of the department] |
Legislation office
|
Response the research and explain CDI policy
|
Education office
|
Educate party members and officials against the violation of discipline and evils of corruption
| |
Party’s integrity office
|
In charge of the CPC’s democratic meetings and study group regarding to the discussion of discipline
| |
prevention office
|
Incorporated with the branches of MOS and worked together against the malpractice in the working places.
| |
Operation office 1,2, 3
|
Investigation of CPC member in gov, enterprises and other organizations
| |
Archive
|
Duties of Archive
| |
Reception office
|
Receive the complaints from the public
| |
Organization
|
HR department of CDI
|
office
| ||
Reviewing office
|
Reviewing and exam the investigation
| |
Enforcement office
|
Conduct the general inspection in its district
| |
General inspection office
|
In charge of general inspection tasks and responsible for the election of county’s special inspector
|
III. How CCDI or CDI conduct an investigation?
Shuang gui will not be used unless CCDI or CDI has already possess some solid evidence that there is a violation of the party or administrative discipline. Moreover, CCDI and its branches at each level shall conduct the investigation in accordance with some certain procedurals and regulations. Generally, the investigation initiated by a preliminary verification. Shuang gui investigation will start if the suspect is believed to have any serious violations. The case may transfer to the PP or police by the discussion of CDI leaders if there is an involvement of criminal activity.
Not every party member who violates a discipline will be subject to the investigation of Shuang gui. According to the No.7 Document of the Central Commission for Discipline Inspectionvi, measurement of Shuang gui applies to two kinds of party members:
- 1) Suspect who may subject to the punishment of suspension or who is likely to flee, fabricate, destroy evidence or other conducts that obstacle the investigation;
- 2) Suspect who is held the position above the county or section level.
2. Preliminary verification
CCDI or CDI accepts complaints and reporting matters that involve the members of central committee or members of CCDI or CDI at same level; matters involves party officials and lower level party organizations. vii After receiving the complaints or reports, CCDI or CDI will conducts a preliminary verification that not exceeds 2 months. If it believed that there are facts of violation, it shall files the case. If it is necessary, the verification can be extend for one month, for complex and important matter, it can be extended again.
According to the hierarchy of party member, different party member has different filing procedural. For members of CPC or CDI standing committee, such as chief and deputy secretary, the decision of filing a case shall be made by CDI’s next higher level. Before the making of decision, CPC’s committee’s opinion shall be considered. For other party member, the decision of filing the case can be made by opinions of CPC’s committee.
The suspect will be notified of under an investigation at the present of CDI’s investigator. He shall not contact outside world during the investigation and without CDI’s permission neither leaving the board, go traveling are allowed. Moreover, the judicial departments shall cooperate with CDI to provide any evidence that is necessary for the investigation. Also in order to collect the evidence, CDI possessed the power to search and seizure items that may necessary for the investigation.viii (other measurements such as freeze suspect’s deposit.) During the investigation, the suspect shall sign on his statement.
The period of investigation shall not exceed three months. When it is necessary, it can be extended for one month. For important and complex cases, the extension shall not exceed 3 months. For case not break in 3 month extension, CCDI or CDI at province level can grant new extension to cases come from its lower level.ix Thus, unless there are some special situations, the total period of Shuang gui shall not exceeds 6 months.
It has been emphasized for many times that Shuang gui is not a criminal investigation and it cannot deprave the freedom of the invetigate. However, in practice this is a grave zone that raises many controversies in the society.
Usually, a suspect will be summoned to a specific place for inquiry by CDI or CCDI. During the investigation, the suspect is not allowed to leave the premise that he stayed or contact with outside world. The premise can be a hotel room or a resort. But this is not a vacation because he has to stay with rest of the investigators in the same room. And he must be subject to the monitoring all the time even when he goes to the bathroom. Although it is not certain that how harsh and how frequent that the physical or mental abuse exists during the investigation, cases of suicides during Shuang gui is not rare.
The suspect’s employer, the state owned enterprise or government agencies, shall making the punishment decision within one month after the end of the investigation. If the decision is made by the CDI above county level, the CDI shall consider the opinion of CPC committee in suspect’s employed organization.
IV. Transfer of the case
In practice, the central CPC only has a very general rule about the transfer. In fact, each province may have its own detailed rules regarding to the procedural of transferring. Here I provide the rules of Shan dong province as an example to talk about the procedural of transfer.
1. Cases from prosecutor, police to CDI
2. Cases from CDI to PP or police
In practice, the central CPC only has a very general rule about the transfer. In fact, each province may have its own detailed rules regarding to the procedural of transferring. Here I provide the rules of Shan dong province as an example to talk about the procedural of transfer.
Under the practice of Shan dong province, they established an anti-discipline violation campaign. The campaign is constituted by PC of Shan dong, PP, DPS, CDI, Department of Organization of Shan dong and Auditing office of Shan dong. The campaign is designed for the cooperation between the different organs of the government in fighting the violation of the party or administrative discipline. The transfer of the case between different organs is subject to the rules of this campaign.
First, the campaign has to set up a coordinate office, the leader is a member of CDI’s standing committee who is in charge of the investigation reviewing and examining. Other members are constituted by the people who come from other affiliate government organs and in charge of the external cooperation in those organs. xi Second, for each campaign members, they set up their own internal department as the channel of cooperation. Thus, the cases of different organs can be transferred through the internal department of each campaign member. Moreover, the details of the cooperation can be discussed in a meeting that holds by 2 or more campaign members.
The general rule is that under a criminal investigation, if the prosecutor or police found that a party member involved in the matter and might be subject to any discipline punishments, they shall transfer the case to CDI or CCDI in accordance with the jurisdiction.
In Shan dong, for case sunder PP’s investigation, if the suspect is a member of party official who subject to the direction of CPC’s committee in county, city or province level, the decision of filing the case shall delivered to the relevant CDI or CPC committee. Moreover, if the suspect is a party member or subject to administrative discipline, PP shall transfer the case file, the decision of prosecution to relevant CDI within one month after the end of the investigation whether PP withdraw the prosecution or not. xii
For cases under public security’s criminal investigation, if the suspect is a party member or subject to the administrative disciplines, the investigator shall transfer the case file within 15 days since the detention. Decision of withdraw shall be briefed to the relevant CDI and CPC committee within one month of the decision.xiii
2. Cases from CDI to PP or police
According to the CCDI’s opinion on father strengthening the standard of investigation, the general rule is that the investigator shall give their opinions on whether the case was involved any crime that is needed for a transfer. The CDI’s leader board shall make decision whether to transfer the case or not.
In Shan dong, for cases under CDI’s investigation, if the suspect was believed to involve a crime, the CDI shall briefing the written statement of the case to the police or PP in accordance with the rule of jurisdiction. This brief shall be submitted within 15 days since the admission of any substantial criminal evidences. Within one month after the case discussion of CDI’s standing committee, CDI shall transfer the case to PP or the police.xiv
The court also needs to notify the relevant CDI during the first instance and second instance of the trail if the defendant subjects to the jurisdiction of CDI or MOS. Since the date of sentencing, the decision shall be notified and the written judgment shall be delivered within 15 days.xv
4. Rumors of a Xiamen Yuanhua case
Although there was no confirmation from the authority, there are widespread rumors about Xiamen Yuanhua smuggling case. In those rumors, people believe that the entail administrative officials in Xiamen export port involved in the smuggling. Due to the scale of corruption, almost everyone involved, the CDI at that time made decision that not transfer those suspects to the PP as long as they returned their bribes or their bribes is not exceed some amount of number.
i CPC official explains "double designations" http://english.peopledaily.com.cn/200609/26/eng20060926_306561.html
ii The Central Organizations of the CPC
http://www.gov.cn/english/2005-‐09/02/content_28610.htm
iii This can be proved by checking the website of CCDI and its branches.
iviv The Central Committee of Discipline Inspection http://en.wikipedia.org/wiki/Central_Commission_for_Discipline_Inspection_of_the_Communist_Party_of_China
v Chart of the Central Organizations of the CPC
http://english.gov.cn/2005-‐09/02/content_28612.htm
vi Document of the Central Commission for Discipline Inspection), no. 7, 5 June 1998
vii Article 10 of CPC’s disciplinary inspection working regulation
viii Article 28 of CPC’s disciplinary inspection working regulation
ix Opinions on CCDI regarding to further strengthening the standard of investigation 中共中央关于进一步加强规 范办案工作的意见
x The measurements on strengthening cooperation between Shan dong CDI, Department of Organization of Shan dong, PC of Shan dong, PP, PSD and Shandong Auditing office for investing discipline and law violation cases (trial)
Lujifa 2011 No. 8 (Hereafter referred to as No. 8 Shan dong)山东省纪委、省委组织部、省法院、省检察院、省 公安厅、省监察厅、省审计厅关于在查处违纪违法案件中加强协作配合的办法(试行)
鲁纪发〔2011〕8 号
xi Article 6 of No. 8 Shan dong
xii Article 10 of No. 8 Shan dong xiii Article 11 of No. 8 Shan dong xiv Article 9 of No. 8 Shan dong xv Article 12 of No.8 Shan dong
鲁纪发〔2011〕8 号
xi Article 6 of No. 8 Shan dong
xii Article 10 of No. 8 Shan dong xiii Article 11 of No. 8 Shan dong xiv Article 9 of No. 8 Shan dong xv Article 12 of No.8 Shan dong
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