The Law on supervisory authorities (中华人民共和国监察官法), called the Law on Graft Busters in English language sources, was approved in the 30th session of the Standing Committee of the 13th National People’s Congress in late August and will come into force on 1 January 2022.
Its adoption is yet another step made by the country towards a unified system of anti-corruption authorities: previously, China had established the National Supervisory Commission (NSC) and supervisory commissions at the national, provincial, prefectural and county level.
The Law, in the first place, specifies which categories of persons belong to the system of anti-corruption bodies. Besides the senior officials and staff of the supervisory commissions of all levels, these are the employees in the quality of inspectors posted by commissions to public bodies, organisations and entities fulfilling public functions and the personnel of other supervisory authorities. The Law also expands their powers, granting them the right to hold those who obstruct their work liable for such actions.
In the second place, it defines the procedure for appointing and removing the officials of relevant anti-corruption bodies: candidates for positions in an anti-corruption body will have to pass an exam and meet a number of general requirements such as complete higher education with at least a Bachelor’s degree. At the same time, the Law contains a list of restrictions on the employment in anti-corruption authorities, including:
- criminal liability also in the cases where prosecutors refused to institute proceedings and the person was exempted from criminal liability due to a minor nature of the crime;
- expulsion from the Communist Party;
- dismissal or removal from office;
- disciplinary liability for bad faith;
- emigration of the spouse or children.
In the third place, the Law expands a number of anti-corruption standards to the employees of relevant bodies and their relatives, in particular:
- the prohibition to do service in the presence of family ties: the officials that are relatives by marriage or direct relatives, relatives up to the third degree of affinity or close relatives-in-law cannot hold leading positions in the same commission, any positions in the same division of a commission, be inspectors of the same bodies (entities) and occupy the positions of director, deputy director or members of commissions two levels higher or lower with respect to each other at the same time;
- the prohibition to be at the same time a member of the Standing Committee of the National People’s Congress and hold positions in the executive bodies or the judiciary;
- the prohibition to fulfill at the same time the functions of people’s assessors, people’s comptrollers, practicing lawyers, arbitrators and notaries;
- the prohibition to work for commercial organisations;
- the prohibition for spouses, parents, children and children’s spouses of the servant of a commission to act as a representative or defender in the cases on the docket of the commission where the servant works, or to provide any other remunerated legal services;
- post-employment restrictions: within three years after leaving a managerial position, the former employee can neither engage in activities related to the oversight or the judiciary that can result in a conflict of interest nor act as a representative or defender in the cases on the docket of the commission where he/she was previously employed except for the cases where he/she acts as a guardian or a close relative of the interested party.
Finally, the Law contains new provisions on whistleblowing. In particular, it obliges the commissions to standardise their workflow, create and improve the mechanisms for internal oversight and control. The Law stipulates that any organisation or natural person can report any misconduct or legal infringement by an employee of an anti-corruption body. The tip should be immediately investigated by the body that receives it and inform the whistleblower about the outcome. Moreover, the Lawprohibits any retaliation against whistleblowers. It also stipulates that the officer that conducts the oversight activities based on the report of a violation should recuse himself/herself in one of the following circumstances:
- he/she is a close relative of the reporting person or the person with respect to whom the oversight activities are conducted;
- he/she was a witness in the case;
- he/she or his/her close relatives have an interest in the subject matter;
- other circumstances that can affect an impartial consideration of the issue of oversight.