| The performance evaluation mechanism of the procuratorial work, as a standard systemof assessing and guiding procuratorial behaviors in practice, plays a regulating role in theimplementation course of the criminal procedure law. The more developed the performanceevaluation mechanism of the procuratorial work is, the more mature of criminal procedureand the more complete corresponding judicial system can be. The performance evaluationmechanism of the procuratorial work is determined by the nature of prosecutorial power andthe role orientation of the prosecutors, on one hand, the prosecutorial power is essentiallyexecutive power, and the prosecutors are essentially executive officials，the performanceevaluation and appraisal of Chinese executive officials have been existed from the period ofWarring States of the ancient China, and in modern times, under the influence of the WesternNew Public Management Movement, civil officials are evaluated in the manner ofperformance management; on the other hand, due to the particularity of the position, theprosecutors are thought to have the character of an expectant judiciary judge, and an expectantjudiciary judge’s performance is indispensable for evaluation and investigation, as the Britishchancellor Denning said，“Judges are not perfect, they may misjudge, resulting in many casesof injustice......Where a miscarriage of justice can be corrected on appeal, however, somemisjudge you can not...... in many other industries where negligence may lead to a claim fordamages in the lawsuit. Since other professionals should bear responsibility for damages, thejudge can do an exception? Do not be your own judge or guaranteed by the Government toensure that he does not make misjudged it? Judges have no reason to evade responsibility?”.Therefore, combining the features of procuratorial power, executive power and judicial power,the prosecutors fulfill the obligation of objectiveness and fairness, and the performance of theprosecutor should be examined and evaluated in some forms. To study the performanceevaluation mechanism of procuratorial work is essentially to study criminal procedure and theprocuratorial system in practical operation, as the performance evaluation mechanism ofprocuratorial work plays an important role in justice, procuratorial structure and litigationrights of citizens, which is bringing a profound impact on both the reform and realization ofCriminal Procedure Law as well as the further reform of the procuratorial system. To studythe performance evaluation mechanism of procuratorial work will contribute to solve the problems such as role confusion of the superior and subordinate procuratorial organs,emphasis on cooperation more often than constraints among public security bureau, theprocuratorate and the court, the litigation rights of citizens are not effectively guaranteed. Forthat reason, the performance evaluation mechanism of procuratorial work is an important partin the research field of Criminal Procedure Law; and because the performance evaluationmechanism of procuratorial work performs the functions of evaluation, guidance andmanagement, to study the performance evaluation mechanism of procuratorial work alsoinvolves the content of management, but the realization of its managerial value must be basedon the basic value goals of criminal procedure.The thesis consists of four chapters besides the introduction.The first chapter, as the theoretical framework, mainly defines the concept of theperformance evaluation mechanism of procuratorial work, discriminates related concepts andresearches about the source of the performance evaluation mechanism of procuratorial work,on this basis; it expounds the historical gradual progress of Chinese performance evaluationmechanism of procuratorial work. The present Chinese performance evaluation mechanism ofprocuratorial work, as a system in which the performance of the subordinate prosecutorsevaluated and appraised by the superior ones in criminal procedure, with the same concept ofthe procuratorial performance appraisal, has relevance to the concepts of case qualityevaluation, case management, case quality appraisal, legal performance evaluation, legalevaluation, evaluation of rule of law, but there are more of differences among them. As amechanism of performance evaluation, one of the theoretical origins of the procuratorialevaluation mechanism is the related theories of Western New Public Management, whichdiffers from traditional administrative management in that it introduces the concepts andmethods of business management into government performance evaluation, with customers’satisfaction as the main evaluation criteria. Another theoretical origin of the procuratorialperformance evaluation mechanism is the litigation concept of turning judgment intomanagement. Through judicial performance evaluation, America has strengthened the controland management of the litigation process by the judges, which affects Chinese judicial organsthat they put increasing emphasis on the establishment of a sound mechanism of judicialperformance management. The practice of Chinese performance evaluation mechanism ofprocuratorial work, having adsorbed part of the above theories, in the continued developmentand improvement of Chinese Criminal Procedure and procuratorial system, has explored a set of performance evaluation mechanism of procuratorial work with Chinese characteristics.Having gone through the prototype period with statistical data of the prosecution but with noevaluation, the exploration period with the ISO9000quality management system trying out inthe different parts of China, and the developing period with the standardization of theperformance appraisal model by the Supreme People’s Procuratorate, Chinese performanceevaluation mechanism has formed the present practical mode of setting the goals of theevaluation, assessing and appraising the performance of the subordinate procuratorial organsby the superior ones, thus the traditional mode, prescribed by legislation, assessing andappraising the performance of public prosecutors by the evaluation committee of theprosecutor, has been changed.The second chapter, as the analysis of text specification, the focus will be put mainly onthe analysis of the content of text specification of the current Chinese performance evaluationof procuratorial work. At first, the value goals of evaluating procuratorial work includespromoting justice and procedural justice, achieving the organic balance of managementpurposes, information purposes and incentive purposes, as well as strengthening legalsupervision for procuratorial work especially the supervision for the investigation. Secondly,the current performance evaluation of procuratorial work is conducted by superiorprocuratorial organs all over the country to subordinate ones through quantitative scoringmethod.However; the Supreme People’s Procuratorate does not conduct evaluation of theprocuratorial work for the provincial prosecutors, but only provides guidance for them byestablishing regulations of the performance evaluation. Again, specific indicators ofperformance evaluation of procuratorial work are set in accordance with post criminalinvestigation, investigation supervision, and public prosecution; viewing the specification ofevaluation established by the Supreme People’s Procuratorate and those of the representativeprovincial procuratorial organs including Zhejiang, Guangdong, Tianjin, Chongqing, there areas a whole some characters in the setting of the current performance evaluation ofprocuratorial work, such as the proportion of negative indicators, unbalanced setting ofpositive indicators, verifying the quality of a proceeding work on the basis of the result of theprior proceeding, and so on. Finally, the operation procedure of prosecution serviceevaluation is in the charge of the comprehensive departments of the procuratorial organs,conducted with the help of the departments of work guidance, while collecting statistical datafor procuratorial work is done by case management department. In addition, the result of the performance evaluation of the prosecution work is only a reference to the performanceevaluation of subordinate procuratorial organs without the effect of generating directly theincentive effects.Chapter Three is mainly about the positive study of actual result of the performanceevaluation mechanism of the procuratorial work. Objectively speaking, the operation of theperformance evaluation mechanism of the procuratorial work can effectively improve worklevel of the procuratorial organ, enhance the inner supervision and balance, promote thespecialization of the procurators, which plays a positive and accelerative role. But on the otherhand, the unscientific and unreasonable contents of the performance evaluation mechanism ofthe procuratorial work can bring the passive impact for the practice of the criminalproceedings, the procuratorial behaviors, the procuratorial structure, the judicial justice,citizen litigation’s rights and the public credibility of the judiciary. The instruction of thesuperior procuratorial organ and collective decision as the exception clauses in theperformance evaluation mechanism of the procuratorial work can result in the role confusionof the superior and junior procuratorial organs and the procurators cannot exercise theprocuratorial power independently. The proceeding result of the latter as the index of theformer procuratorial work can lead to the fuzziness of the function of the police, the court andthe procuratorate and the coordination is important than the balance,which can ensure all theresults of the proceeding can be unanimous. The performance evaluation mechanism of theprocuratorial work hastens a lot of the extralegal coordinate procedures which aggravate theweak position of the citizens relative to the state organs in the criminal procedure. The severetendency of recourse in the performance evaluation mechanism cannot only weaken thejudicial credibility, but also increase the possibility of social crisis. Besides, the operation ofthe performance evaluation mechanism of procuratorial work also exist some problems,including the non-professional evaluation subject, the non-scientific evaluation object, thelack of bidirectional feedback of performance evaluation mechanism, inefficacy of the publicsupervision and opinions, the unscientific evaluation of the quantization scoring, ignoring theregional difference and the fairness of the evaluation, the lack of the indexes and the overallconsideration of other law enforcement agencies and the judicial organizations.Chapter Four is the suggestions of the reform and perfection of the performanceevaluation mechanism of procuratorial work of the above-mentioned problems. The reformdirectives should base on the basic principle and operation rule of the procuratorial power to perfect the procuratorial structure of Chinese characteristics and focus on the scientificdevelopment of procuratorial work. Both the procuratorial performance appraisal of thePennsylvania and Taiwan, through the comparative study, put a high value on theperformance of the procurators, especially the ability of legal application and the theoreticalstudy. The difference is that the former is not in accordance with the result of proceedingswhile the latter is in accordance with the handling of the cases.As for the specific reform measures, we should consider the useful foreign experience aswell as the Chinese legislation and the practice of the criminal procedure. To begin with, theperformance evaluation mechanism should be conducted by the evaluation committee ofprocurators instead of the superior procuratorial organs, and the supreme people’ s procuratealso should take the duty for evaluating the business of the provincial people’s procurate. Theappraisal system established from the top to the grassroots will not only change the traditionaloperation of procurate power which means that the independent status of the procurators inthe process of dealing with the case will be enhanced and the interventions from theadministrative branches will be reduced, but also coordinate with the professionalconstruction. In order to change the traditional mode successfully, the current function of theperformance evaluation mechanism should be divided into the centralized management ofcases, evaluation system of cases quality, tracing accountability for the liability for fault.Secondly, for the content of the evaluation indexes, we should stop the mechanical wayof verifying the result of criminal proceedings. Specifically, we can set reasonable range forthe acquittal ratio in order to make predictable analysis. At the same time, we also can providethe effective guidance for the procurators to improve the level of handling the cases from fourconcrete indexes (quantity and efficiency, abiding by the procedural regulations, quality andprofessional requirements), not according to the types of procuratorial works. Surely, theevaluation indexes will be classified by different ranking rather than simple scoring.At last, the public opinions outside of the procuratorial system should be taken seriouslyin the course of the performance evaluation of the procuratorial work, and the mechanism ofthe feedback for the evaluation outcomes should be established immediately. Not enough, theevaluation outcomes also become the basis for the promotion of the procurators. Besides, thepersonnel system and the expenditure are the necessary parts of the performance evaluationmechanism. |
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