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As one
law
Facts, Chinese
Procuratorial organ
Pitch in
State legal supervision
Organ, prosecutorial power is located in
Judicial power
Have got
constitution
Confirmation of;
As a legal issue, the dispute between the procuratorial power and the nature of the procuratorial organ has not stopped for a moment.
According to the
Criminal Procedure Law of the People's Republic of China
"
[1]
Relevant provisions, the people's procuratorial powers mainly include: restriction and supervision of investigation power, litigation supervision
[2]
The four major parts of the investigation of duty crimes and the supervision of the execution of penalties and the inspection of prisons.
[3]
- Chinese name
- Procuratorial power
- Foreign name
- procuratorial authority
- Subordinate department
- procuratorate
Prosecutorial power is conferred by the state
Procuratorial organ
The power to supervise the unification and correct implementation of the Constitution and the legal system of the State is the embodiment of state power in social life.
[4]
The procuratorial power is the procuratorial organs against each other
Abide by
Laws, rules, regulations,
Carry out
Executive order
,
decide
Check, understand,
SUPERVISOR
And the power to guide.
[4]
Procuratorial power is accompanied by a country's democratic legal process to promote, intervene, check and balance other state powers, especially to restrict
Judicial power
,
Executive power
The function is becoming more and more prominent. Prosecutorial power belongs to legal supervision power in nature, because:
First, judging from the position of procuratorial power in the state power structure, procuratorial power is subordinate to the unified supreme power of the state, parallel with the executive power and the judicial power, and independent state power.
Second, judging from the content of procuratorial power, procuratorial power itself has the characteristics of supervising the implementation of national laws.
Third, judging from the purpose of procuratorial power, the purpose of exercising procuratorial power is to maintain the unity and correct implementation of the Constitution and laws.
[5]
The Communist Party of China was established in Ruijin, Jiangxi Province in November 1931
Chinese Soviet Republic
Since then, the establishment and exploration of the people's procuratorial system have been carried out. In the 80 years of development, the people's prosecution system has absorbed both the former Soviet Union and Western countries
Procuratorial system
Many advantages, but also integrate the essence of Chinese politics, history and culture, with distinct Chinese characteristics, play supervision
Public power
The function of exercising and maintaining legal unity and fairness and justice in accordance with the law. Under the guidance of the theory of socialism with Chinese characteristics, the evolution of people's procuratorial work has been endowed with independent supervisory functions under the authority of the people's Congress.
[3]
Restricting and supervising the power of investigation
The Provisional Organization Regulations of the Supreme People's Procuratorate in December 1949 stated: "Yes
Criminal case
To conduct investigation,
Institute a public prosecution
". The Constitution of 1954 and the Organic Law of the Procuratorate shall regulate and supervise
Power of investigation
The protection of citizens' rights has made more specific provisions: citizens'
Personal freedom
Inviolability. No citizen may be arrested except by decision of a people's court or with the approval of a people's procuratorate. Procuratorate "for investigation organs
Investigation activity
Whether it is lawful or not shall be monitored."
The Organic Law of the Procuratorate of 1979 not only provides for the right
Public security organ
Investigate the case, conduct a review, decide whether
Apprehend
, Sue or
Immunity from prosecution
"And it was specified
Investigation and supervision
The main content of,
Warrant arrest
and
Decide to Sue
Legal requirements, as well as investigative oversight procedures.
Criminal procedure law
It also stipulates that the procuratorate may file and investigate criminal cases that it deems necessary to accept directly.
The Criminal Procedure Law amended in 1996 stipulates that the case should be filed
Spy on
Cases that are not investigated,
procuratorate
The public security organ shall be required to explain the reasons for not filing a case; If the procuratorate considers that the reasons for not filing a case cannot be established, it shall notify the public security organ to file a case.
Supervision of criminal filing
The system begins.
Litigation supervision
The Judicial Procedure of the Chinese Soviet Republic, promulgated in April 1934, stipulates that after the final trial, if the procurators still have different opinions, they may protest to the judicial organs and retry the trial. In February 1937, the Central Ministry of Justice issued an order that the State prosecutor General had an extraordinary right of appeal. party-led
Jinji-lu-henan border area government
It states: "If you have a different opinion on the judgment of the High Court, you have the right to raise it with the border Government.
indict
The government of the border region accepting its complaint may organize a special court or return it to the High Court for review."
In 1949, the Supreme People's Procuratorate's Provisional Organization Regulations provided for two types of supervision over trial activities: "protest against illegal judgments made by judicial organs at all levels"; "In civil cases and all administrative proceedings relating to the interests of the working people of the whole society, we may participate on behalf of the State public interest." Later, the scope of trial supervision was added to the appeal of the ruling.
The Organic Law of the Procuratorate of 1954 stipulates: The Procuratorate
Institute a public prosecution
The chief procurator or procurator shall attend the court as a state public prosecutor to support the public prosecution and supervise the legality of the trial activities; If a local procuratorate at any level considers that there is a definite error in a judgment or order of first instance made by a court at the same level, it shall have the right to lodge a protest in accordance with the appeal procedure; The Procurator-general of the High Procuratorate attended the meeting of the Judicial Committee of the Supreme Court, if yes
Judicial committee
If you disagree with the resolution, you have the right to submit it to the Standing Committee of the National People's Congress for examination and handling. These regulations are new China
Procuratorial system
Create five years of practice summary improvement and improvement.
The year 1979
Criminal procedure law
It stipulates: "The procurators who appear in court have the right to submit corrective suggestions to the court if they find that the trial activities have violated the law." The Criminal Procedure Law amended in 1996 clearly defines the people's procuratorates as the subject of exercising the power of supervision, and stipulates that courts have the right to put forward corrective opinions if they find that they have violated procedural procedures in handling cases.
It was issued in March 1982
Civil procedure law
(for trial implementation) and the Administrative Procedure Law promulgated in April 1989
Procuratorial organ
Power of supervision over civil administrative trials. At this point, the system of procuratorial organs supervising and preventing trial violations and errors in the three major litigation areas has been basically established.
Investigation of duty crimes
Ruijin
During the period, the Ministry of Industry and Agriculture Procuratorial Work was both a function of duty crime procuratorial work, and its responsibilities included supervising the correct implementation of national policies, laws and decrees by state organs, enterprises and staff. Investigate, punish and eliminate class dissenters, corrupt, wavering and passive elements among them; In cases of corruption and bureaucracy
Power of investigation
Let's wait.
neo-Chinese
Procuratorial organ
subsupervisor
Public power
From the point of view of the exercise of law, the focus of the direct filing and investigation of cases is the crime carried out by the staff of state organs, enterprises and institutions. In November 1962, the "Trial Provisions on the Scope of Duties of the Three Organs of the Public Security Law to Accept ordinary Criminal Cases" was promulgated, "corruption and embezzlement belong to the staff of state organs, grass-roots cadres and enterprise employees
Public property
, infringement of personal rights and other serious acts, which have constituted a crime and need to be dealt with according to law, shall be accepted by procuratorial organs.
Institute a public prosecution
The court accepts the judgment." So far,
Procuratorial organ
Direct exercise
Duty crime
The scope of investigation power is clear.
The Organization Law of the Procuratorate and the Criminal Procedure Law, adopted in 1979, have made specific provisions on the power and jurisdiction of the procuratorial organs to file criminal cases at the legal level. "
Crime of corruption
Violation of citizens
Democratic right
Sin,
Crime of misconduct in office
And other cases that the people's Procuratorate deems necessary to accept directly by itself, the people's Procuratorate shall file a case for investigation and decide whether to initiate a public prosecution." For execution
Criminal procedure law
The Joint Notice on the Jurisdiction of the Case issued will
Subject of crime
For state workers or crimes committed in line with their duties or for exploitation
Job convenience
22 criminal cases involving 5 categories of crimes are classified as cases under the direct investigation and jurisdiction of procuratorial organs.
The Criminal Procedure Law amended in 1996 clearly stipulates that crimes of embezzlement and bribery, crimes of dereliction of duty by state functionaries, illegal detention by state functionaries using their power,
Extract confessions by torture
Crimes of infringing upon citizens' personal rights and crimes of infringing upon citizens' democratic rights in retaliation, frame-up or illegal search shall be filed for investigation by the procuratorate. For other major criminal cases committed by state organ functionaries using their functions and powers, when it is necessary to be directly accepted by the procuratorate, it may be filed by the procuratorate upon the decision of the procuratorate at or above the provincial level
Spy on
.
Supervision of execution of penalty and inspection of prison
The Organic Law of the People's Procuratorate of 1979 stipulates that: the execution of judgments and orders in criminal cases and prison,
Detention house
Supervision shall be exercised over whether the activities of the Labour reform organs are lawful; When it is found that the execution of a criminal judgment or order has violated the law, notify the executing organ to make corrections; When it is discovered that the activities of the prison, detention house or labor reform organ are illegal, it shall notify the competent organ to correct them. In the same year, The State Council's Supplementary Provisions on Reeducation through Labor clearly stated that "the People's Procuratorate is on
Re-education through Labour
Exercise the "duty of supervision" over the activities of the organ.
From the perspective of the evolution of procuratorial powers, within the current constitutional and legal framework, procuratorial functions should play a role and assume the expectations of the people.
Rule of law
We need to ensure the implementation of the Constitution and laws, safeguard judicial fairness and justice, promote the orderly rule of law in society, and urge the exercise of public power in accordance with the law and the integrity of officials. We should also do the following: First, be loyal to the mandate and accept the oversight of the People's Congress; Second, investigate and punish
Duty crime
To curb the momentum of corruption; Third, strengthen litigation
SUPERVISOR
To safeguard fairness and justice; Fourth, resolve conflicts and guide people to defend their rights.
Some jurists say,
Chinese procuratorial system
On the basis of
The people's democratic dictatorship
The theory of the former Soviet Union
Lenin's socialist procuratorial system
The thought, in inheritance
New democracy
The fine tradition of procuratorial work in the base areas and liberated areas during the revolutionary period, carrying forward the essence of the ancient Chinese political and legal system, especially the imperial history supervision system, and absorbing foreign socialist procuratorial work, especially in the Soviet Union
Institutional construction
On the basis of experience, combined with the actual situation of China and established. This view is more comprehensive, but there are some points for discussion and supplement.
Ancient supervision system
The prosecution system of the former Soviet Union
2. Soviet Socialism
Procuratorial system
It should be the most important and direct source of China's procuratorial system. From the beginning of the establishment of the procuratorial system in New China, Lenin's theory on legal supervision (known as general supervision in the former Soviet Union) was taken as the guiding ideology for the construction of procuratorates in the macro level, and combined with China's reality in the micro level.
Peng Zhen
The comrade pointed out: "Lenin, after the October Revolution, insisted that the functions and powers of the procuratorial organs were to safeguard the unity of the legal system of the state. Procuratorate organization law application
Lenin
This guiding ideology."
Collapse of the Soviet Union
Later, China became the main representative country of socialist legal system, and China's procuratorial system, with its distinctive socialist characteristics, is unique in the procuratorial system of other countries in the world.
Anglo-American factor
3, Since the 1990s, the west wind has become east, China's
Procuratorial system
It is influenced by the procuratorial system of foreign countries, especially the countries of common law system. Outstanding performance in the reform of litigation mode: 1979
Criminal procedure law
The criminal procedure model constructed on the basis of "is typical
The mode of ex officio litigation
Features; The revision of Criminal Procedure Law in 1996 introduced and absorbed many common law systems
Party doctrine
The content of the criminal litigation mode has formed a "mixed" litigation mode, which has a tendency to develop into the litigant doctrine in practice. The purely "party doctrine" and "isosceles triangle" litigation mode are based on the legal system of the Anglo-American law system, and are not compatible with the original legal system of China. First of all, China is a country of written law, judges must strictly follow the law and cannot create the law, so the procuratorate's legal supervision becomes necessary and possible; Secondly, the legal supervision of the procuratorial organs is the supervision in the sense of procedure, and there is no conflict with the judicial power with substantive disposition. Respecting the judicial power does not mean "judicial supremacy", and not correcting mistakes is the biggest infringement on judicial authority. Finally, China's procuratorial organs are the country's legal supervision organs, not the prosecution parties, and together with the courts bear the responsibility of punishing and maintaining crimes
Social justice
The dual mission of the law and the lawyers as the legal workers of the state do not constitute the opposite poles.
sinographic
Procuratorial system
We must stand on the basis of localization, and draw lessons from foreign procuratorial systems must also be considered
Native constitutional structure
and
Legal culture
Compatibility and integration. China's procuratorial system should have the character of advancing with The Times, but advancing with The Times should not be blindly copied, and the procuratorial reform must be carried out within the framework of the socialist political system and the people's procuratorial system. So stick with China
Procuratorial organ
Legal supervision
The scientific orientation of the organ, and also the true nature of the independent legal supervision power of the procuratorial power, and constantly strengthen and improve it, is the basis and premise of the current procuratorial reform. Ignoring the constitutional system of China, and following the "constitutional system" of Western countries (especially Anglo-American law countries)
Separation of powers
"For
standard
It will certainly make China's procuratorial system deviate from its original intention, and cause the socialist legal system to conflict, and even drown in the tide of the west wind and the east.
Nature is the fundamental attribute that distinguishes one thing from another. The so-called attribute refers to the inherent inherent characteristics of things. Procuratorial power, as the product of the continuous differentiation, development and combination of state power, naturally has its unique inherent attributes. The nature of procuratorial power directly determines the content, structure and function of procuratorial power, and the content, structure and function of procuratorial power also reflect its nature. Generally speaking, the nature of procuratorial power refers to the position of procuratorial power and its ownership in the division of power in the national power structure system. From the perspective of foreign countries, procuratorial power is always a "power that has not been clearly located", and it has always lingered in the system of separation of powers. It is not exactly equivalent to judicial power or executive power, but is prosecutorial power unrelated to those two kinds of power? The answer is no. No matter the attribute of judicial power or executive power, there is a selective affinity between them and procuratorial power. That is, the causal relationship between the attributes of judicial power, executive power and procuratorial power is not decisive, but non-decisive. Procuratorial power, judicial power and executive power are different from each other and cross each other. There is no either-or or exclusive relationship between the attributes of judicial power and executive power. The key to the research on the attributes of procuratorial power is to grasp the essence of separation of powers at the beginning of the establishment of procuratorial power, and grasp the purpose of the establishment of procuratorial power, that is, to divide the judicial power and the executive power, and finally achieve the purpose of governing the country according to law. The research method of the attribute of procuratorial power should grasp the power essence of the differentiation of procuratorial power, and firstly think rationally. For a long time, the academic circle has been debating about what kind of power procuratorial power is, with different people having different opinions, and no unified view has been formed so far. As for the theory of the nature of procuratorial power, there are mainly four kinds:
[6]
1. This view holds that prosecutorial power belongs to the scope of judicial power. Mainly from the existing national system to prove that our country to carry out
The system of people's congresses
. In "...
The People's House and the People's House
"Under the power structure, prosecutorial power has been associated with
Executive power
A complete separation. The Constitution has clearly stipulated that the procuratorial power is not subject to the interference of the executive, indicating that there is no subordinate relationship between the procuratorial power and the executive power. from
Judicial power
To come to understand the meaning of justice is to follow the judicial authorities
Judicial procedure
In the activity of applying law to specific facts, the procuratorial organs take measures and make decisions throughout the litigation activities to apply the law to specific case facts, and the characteristics of their behavior and the nature of their activities are also of judicial nature. In addition, the main way of exercising judicial power is litigation, and procuratorial organs are the main participants in litigation activities, so procuratorial power should be regarded as an integral part of judicial power. Although the theoretical circle has not formed a complete unified view of what judicial power is until 2010, it is generally believed that the narrow judicial power refers to the judicial power. (This paper will not study the connotation and extension of judicial power, and the "judicial power" mentioned here only refers to the narrow judicial power) This paper holds that the procuratorial power is not narrow
Judicial power
. It is generally believed that judicial power has the characteristics of finality, passivity and independence, but procuratorial power does not have these three characteristics at the same time.
[6]
2. According to this view,
Procuratorial organ
The organizational system has administrative characteristics. A basic principle of the organization and activities of the procuratorial organs is "procuratorial one system", that is, the upper and lower levels of the procuratorial organs form a whole. It is manifested as: "hierarchical construction" and "command power" of superiors, superior organs have the "command power" to lower organs, superior prosecutors have the "command power" to lower prosecutors, and the lower prosecutors have the obligation to obey. This vertical hierarchical system and upper and lower leadership relationship is a typical administrative relationship. The behavior carried out by prosecutors, including criminal investigation and prosecution, is a kind of active and active behavior carried out to maintain legal order, not a passive and passive judgment behavior, which has administrative characteristics. This paper holds that procuratorial power is not executive power. We judge the attribute of a power according to its source and ownership of power, the purpose of power setting, and what power constitutes a unity, what unique behavior personality and function, rather than from one side to make a conclusion. Moreover, an executive principle does not have the function of stating the nature of its power.
[6]
3. According to this view,
Legal supervision
It is the essential attribute of procuratorial power, and judicial and administrative are both attributes of procuratorial power. If the legal supervision of procuratorial organs is uncertain and not confirmed, the development of procuratorial organs may be biased, which is a wrong direction. If we do not recognize the administrative nature of procuratorial organs, we will not be able to confirm the common system of "procuratorial integration" in the contemporary world. If not acknowledged
Procuratorial organ
With a certain judicial nature, it cannot be introduced into the procurator relative
Independence principle
And a series of related systems. The expression of this theory is vague and can not reveal the essential attribute of procuratorial power. The executive power and the judicial power have distinct characteristics respectively, and the procuratorial power is an independent power, which is the right of legal supervision. Therefore, it cannot be said that the procuratorial power is both the executive power and the judicial power, otherwise, it will eventually lead to the situation that "this is also that, and that is also that" cannot identify the particularity of a certain thing itself.
[6]
4. This view holds that prosecutorial power is neither judicial nor executive, and is independent
Legal supervision
Right, the procuratorial organ is the legal supervision organ. The organic combination of the administrative and judicial nature of procuratorial power constitutes the unique attribute of the legal supervision power, which makes it different from the executive power and the judicial power, and become an independent power in the classification of state power. Legal supervision power and procuratorial power are two propositions of one thing. ] What our country implements is
The system of people's congresses
the
Political system
,
People's congress
Be national
Organ of power
Exercise state
Legislative power
, and will
Executive power
,
Judicial authority
The power of legal supervision is vested in the people's government, the court and the court respectively
procuratorate
Exercise.
Procuratorial organ
It is a national legal supervision organ, whose powers are collectively referred to as procuratorial power or legal supervision power. It is an independent and special power granted to procuratorial organs by the state to ensure the unified and correct implementation of laws.
Power of investigation
,
Right of prosecution
As the concrete manifestation form and realization means of procuratorial power, the power of litigation supervision is unified and attached to the procuratorial power, so that the procuratorial power presents some characteristics of judicial or administrative. This paper supports the theory of legal supervision, that is, procuratorial power should be positioned as legal supervision power.
[6]
Our country
Feudal king
The dynasty has long practiced administrative (including judicial), military, and supervision under imperial power
Separation of powers
The system of... Among them,
Right of supervision
Is independent of the executive power, the judicial power, yes
Executive power
and
Judicial power
Is an external constraint, which is very similar to prosecutorial power. In addition to not exercising the power of prosecution, the imperial history system and
Procuratorial system
The other two functions are basically consistent. Therefore, the imperial history system is the historical source of China's procuratorial system, although it was eliminated with the collapse of the Qing Dynasty, but as a kind of
Centralization of power
The essence of the supervisory system under the rule has persisted. In the long feudal society, the confusion of judicial power and executive power,
Right of prosecution
As a result, the Western procuratorial power with the public prosecution power as the core has no soil and conditions in China, but it has formed a imperial history system with the main content of impeaching and investigating officials and supervising and restricting trials, and some functions overlap with the procuratorial power. After the end of the Qing Dynasty, we introduced the western separation of trial and inspection, carried on the democratic reform of litigation, and made our country
Procuratorial system
It can be established and developed with the right of public prosecution as the main content. At the same time, the supervision system derived from the imperial history system is also constantly changing and extending, and finally finds its home in China's procuratorial organs and procuratorial powers, completing the coincidence of the procuratorial power in the historical essence and the modern form, and also completing the integration of China's traditional procuratorial power and the procuratorial power from the West. The procuratorial system of the former Soviet Union founded by Lenin is a brand new socialist type of procuratorial system, which does not copy the western countries
Legal system
Instead, it is formulated from the actual situation of Soviet Russia and draws on the advanced experience of foreign countries and human legal history. The establishment of procuratorial power in our country draws on Lenin's procuratorial theory, but it is not a simple copy of the former Soviet Union's procuratorial system, but absorbs the reasonable part of it according to the actual situation of our society, and continuously enrichis and develops in the course of practice. It can be seen that after the establishment of socialist China, Lenin's theory of legal supervision was borrowed and transplanted into the former Soviet Union
Procuratorial system
The procuratorial organ is positioned as a legal supervision organ alongside administrative organs and judicial organs, exercising the function of legal supervision.
[6]
At the same time, through the investigation of the origin of the procuratorial system in other countries, we can find that the western procuratorial system has become the backbone of safeguarding the unity of law, preventing administrative and judicial arbitrariness, protecting human rights, safeguarding public welfare and realizing justice since its birth. Supervision is the inherent character of procuratorial power.
Socialist country
So did the formation of the prosecution system in the former Soviet Union
Lenin
Inherited the essence of the thought of the predecessors, and based on
Dictatorship of the proletariat
The theory and the concrete practice of Soviet society have created the socialist procuratorial legal thought and system with strong vitality and legal supervision as the core. Among them, procuratorial organs perform the function of legal supervision is a common feature. Therefore, the position of procuratorial power as legal supervision power has historical basis and is based on China and foreign countries
Procuratorial system
Scientific judgment and positioning made in the whole process of development.
[6]
Throughout the world, the nature of a country's prosecutorial power is limited by its constitutional system. Therefore, to understand and define the nature of our procuratorial power correctly, we must grasp our country deeply
The system of people's congresses
The connotation of... According to the Constitution, China implements the system of people's congress
Organizational form of political power
,
Procuratorial organ
It is the product of the implementation of the people's representative system. The system of people's Congress belongs to our country
Fundamental political system
Is the basic form of political power organization.
People's congress
Unitary exercise of state power on behalf of the people. The power of other states derives from the people's congresses; not only are their organs and leading personnel selected by and accountable to the people's congresses, but their activities in exercising state power are also subject to the supervision of the people's congresses. The People's Congress is
Organs of state power
Not only enjoy
Legislative power
It also has the power to supervise the implementation of laws. The people's congress system is a model of democratic political power structure established in China on the basis of summarizing historical experience and giving full play to the people as masters of their own affairs.
The system of people's congresses
The demand that state power should be exercised uniformly by the people's Congress does not mean that state power and the exercise of all its powers and abilities should be exercised by the people's Congress; on the contrary, it calls for the division of state power into several parts to be exercised by different organs of the state on the premise that the People's Congress has the supreme power (including legislative power). In order to make the state power can be organically combined to form a unified operation system, but also to form a division of responsibility, mutual constraints, efficient operation, to prevent arbitrary
Checks and balances
Mechanism. In China, all state power belongs to the people, who exercise state power uniformly through the people's congresses at all levels and their standing committees, which are composed of their own elected deputies, and derive power from other state organs
People's congress
They are elected by, accountable to and supervised by the people's Congress. In our country
State institutional system
The People's Congress is in the highest position, under which there are also administrative organs,
Judicial organ
,
Procuratorial organ
And the military organs, respectively, exercise the executive power, judicial power, procuratorial power and military power in the functions of the state. Executive power, judicial power, procuratorial power and military power are indispensable organic components of state power, and the exercise of these powers is of course subject to the supervision of the people's Congress. In addition, the executive power, judicial power and procuratorial power (we will not study military power for the time being) must also check each other, so as to ensure the orderly operation of all powers and capabilities of the entire state power. The executive power, judicial power and procuratorial power are parallel, and there is no subordinate relationship between the upper and lower levels. Procuratorial power is an independent power, and according to the Constitution and the organic law of the people's court and other legal provisions, procuratorial organs are state legal supervision organs, exercising legal supervision functions. Therefore, legal supervision is the most important and essential function of procuratorial power, which should be positioned as supervisory power. Historical experience tells us that power is in danger of being abused from the day it comes into being. To ensure that power is not abused and that it runs efficiently on the right track, an effective supervision and restriction mechanism must be established
Balance of power
Principle. As the procuratorial power parallel with the administrative power and the judicial power to supervise the related activities of the administrative organs and judicial organs, it conforms to our country
Constitutional government
In line with the general principle of checks and balances of power.
[6]
The provisions of the constitution and related laws to the status of the procuratorial organ indicate that the procuratorial power of our country should be positioned as
Legal supervision
The right. Article 129 of the Constitution provides that
People's Procuratorate of the People's Republic of China
It is the legal supervision organ of the state. "
Organic Law of the People's Procuratorate of the People's Republic of China
Article 1: The People's Procuratorates of the People's Republic of China are state organs for legal supervision. In modern times
Country ruled by law
In, a state organ in the whole
State institutional system
The status and the nature of the functions and powers it exercises should be clearly defined by law, especially by the constitution. The above provisions of the Constitution and related laws jointly explain that the procuratorial organ is the national legal supervision organ, and the functions and powers it exercises (that is, procuratorial power) are an independent power - the power of legal supervision.
[6]
To sum up, to
Constitutional government
It is scientific to discuss the nature of procuratorial power from the Angle of view. From the perspective of constitutionalism, the procuratorial power is positioned as
Legal supervision
The right not only conforms to the requirements of the constitution and the government, but also has a solid legal basis.
[6]
From the review relationship and
Judicial supervision
In the process of development, procuratorial power has always shown the characteristics of independence and supervision. The separation of the right of complaint and the right of trial is a significant division of labor in the history of litigation, and an important principle and system of modern criminal procedure. It provides the legal basis and system foundation for the separation of the examination and inspection institutions. In a certain sense, the starting point for modern countries to adopt the institutional model of "separate inspection and inspection" is to enhance
Procuratorial organ
To avoid the mutual influence of judicial power and procuratorial power, so as to exert the supervision function of procuratorial organs more effectively, realize the horizontal balance of procuratorial power on judicial power, and prevent the abuse or alienation of judicial power.
[6]
Today's world mainly has
Civil law system
,
Common law system
and
Socialist law system
Three major legal systems. Due to the reasons of economic foundation, political system and historical tradition, different legal system countries or even the same legal system countries
Procuratorial system
There is a big difference. Just as
Taiwan of China
Senior district attorney
Zhu Chaoliang
"According to the position of the prosecutor, there is a position as an agent of the executive, as in the French legal system, there is a position as an executive
pleader
Such as
American legal system
Those who are positioned as public interest representatives (or public interest defenders), such as
Japanese legal system
"
In 12th century France, the power of local feudal lords was great, and the power of Kings was limited and strengthened
centralization
To maintain the unity of national laws, the king set up an agent to deal with private affairs on behalf of the king, and undertake
Crown law
Duties performed on the land of the Lord. In the 14th century, France replaced its former king
Agent AD litem
Rename as
procurator
On the one hand, they investigate and prosecute criminals as state prosecutors and participate in court trials; on the other hand, they supervise local administrative authorities on behalf of the king and become the king's eyes and ears in the local areas. This is thought to be
Procurator system
The origin of... Until 2010,
Civil law system
Most countries define procuratorial organs as quasi-judicial organs and quasi-judicial organs
Legal supervision
The organs, to a certain extent, assume the functions of legal supervision and ensuring the unified implementation of national laws. The French prosecution, on the one hand, acts in criminal proceedings
Spy on
, Sue,
Support the prosecution
and
Direct criminal adjudication
The execution of such functions, on the other hand also on
Judicial aid system
Operation,
Household registration official
,
Private educational institution
,
News magazine
And other regular publications for review and supervision. The German public prosecutor acts as the state prosecutor during the trial phase, and at the same time supervises the legality of the trial proceedings and has supervisory responsibility for the legality of the judgment. The Portuguese Public Prosecution Service also monitors the constitutionality of conventional laws. Therefore, civil law prosecutors enjoy status, financial and privilege protection similar to judges, and are called "standing judges" and "guardians of the law"
Public prosecutor
Be again
Legal supervisor
Prosecutors in France, Germany, Japan and other countries can appeal certain erroneous decisions of the court (
counterappeal
).
Common law
Procuratorial system
It originated mainly in England in the 15th century. In 1461, the King of England will assume
Crown law
Counsel to the King was renamed
United Kingdom Attorney General
In 1515, the Deputy Prosecutor was set up, gradually forming the British prosecution system. Britain is typical
federalism
and
Case law
In the country, the law is called "the feet of the judge", which is mainly followed and created by the judge. The judge with law-making function has a very high social status in the Anglo-American law system, and the supreme authority of the judge in the judicial system cannot tolerate the supervisor who is more advanced. At the same time, the British and American countries have their own members
Legal system
It is neither possible nor necessary to seek the unification of the rule of law throughout the country
Legal supervision
Ideas cannot be produced in common law countries.
Socialist law
Procuratorial system
Originated in the Soviet Union, its theoretical basis mainly from
Lenin
The theory of socialist procuratorial system. The theoretical framework of Lenin's procuratorial system should contain at least the following three meanings: (1) The legal system of socialist countries should be unified. "There can be no rule of law
Kaluga Province
The rule of law,
Kazan
It should be a unified legal system for the whole of Russia, even the whole of Russia
Soviet republic
Uniform federal rule of law." The functions and powers of the procuratorial organs are legal supervision, which is specialized and procedural. "It is the duty of the Procurator-General to render any decision of any local authority contrary to the law, so the Procurator-General is obliged to challenge any decision that is contrary to the law solely from this point of view, but the Procurator-General has no power to suspend the implementation of the decision." Procuratorial power shall be exercised uniformly and independently, free from local interference. "The prosecution shall
Legal supervision
For full-time, does not perform any administrative functions, subject to the central vertical leadership, exercise
Central procuratorial power
" "The prosecutor-General has only one authority and must do one thing: to monitor a truly consistent understanding of the rule of law throughout the Republic, regardless of any local differences and without any local influence."
1.
Civil law system
And socialist law system
State procuratorial organ
Be born with
Legal supervision
The function of...
centralization
and
Written law
The state generally requires the unified and correct implementation of national laws throughout the country, and judges can only strictly apply written laws, but cannot go beyond and create laws. There must be an organ to assume the responsibility of legal supervision in order to maintain the unified and correct implementation of national laws. Therefore, the procuratorial organs in the civil law system and the socialist law system have dual identities of public prosecutor and legal supervisor since the day they came into being. Enjoy status, financial and privileged security similar to that of a judge. Common law national prosecuting authority
Duty
The scope is slightly smaller, so it seems more appropriate to define it as "litigation authority"; The procuratorial organs of civil law countries have more extensive functions, and it is more appropriate to define them as "legal supervision organs".
Civil law system
The Anglo-American law system takes "separation of powers" as a priori premise, so the procuratorial organ can only be located in the administrative or judicial organ. The socialist legal system is more open in the division of power, so under the supreme power, the formation of the legislative, administrative, judicial, procuratorial "four powers separation" pattern.
3. The legal status of the procuratorial organs of the socialist law system is higher than that of the procuratorial organs of the common law system and the civil law system.
① The procuratorial organs in the common law system and the civil law system are located in the administrative organs (or quasi-judicial organs), and most of them are subordinate to
Judicial administrative organ
There are also individual Settings in the court, and the legislative and judicial organs are not at the same level. Chinese procuratorial organs as the state
Legal supervision organ
, due to
Organs of state power
Produce and be responsible for it, same
Judicial organ
Administrative organs are set up in parallel and do not belong to each other. The basic function of the procuratorial organs in the common law system and the civil law system is to prosecute criminal crimes, and even if they have certain supervisory functions, they only supervise the specific activities of investigation, execution and judicial trial. The procuratorial organs of the socialist law system are specialized
Legal supervision
Organ, legal supervision is its basic function, and the scope of supervision is wide,
Public prosecution
Just a means and component of legal supervision.
4. The mode of criminal litigation is the concrete manifestation of the positioning of procuratorial organs.
On account of
Civil law system
And socialist law system procuratorial organs have dual identities, they bear the responsibility of legal supervision in different degrees, so in
Litigation mode
On is more inclined to
authoritarianism
Prosecutors should abide by the principle of objective neutrality and supervise the fairness of the judgment, rather than simply making accusations
defendant
. Common law prosecutors are considered parties to the prosecution, and they can conduct pre-trial proceedings with the defense
Plea bargaining
, right
Right of prosecution
Carry out larger
discretion
and
punishment
In court, it only undertakes the task of proposing and proving the facts of the crime, which is"
Party doctrine
"Or" isosceles triangle "litigation pattern.
