Research On The Right Of Investigation And Verification Of Procuratorial Organ In Civil Action

Under Chinese dual judicial system, procuratorates carry out powers of supervision. Procuratorial departments cannot realize expected goal set by legislation if they only review courts files. It is indispensible for them to have and perform powers of investigation and verification. Main point of the paper is to inspect relevant theory and practice problems of procuratorial investigation activities in civil suits comprehensively, for rationalization of investigation powers step by step.This academic dissertation is made up of the introduction and five chapters.The introduction discusses significance of the selected topic, analyzes research status about procuratorial investigation powers and expounds normative analysis, text analysis and empirical research methods in this paper. Besides, it summarizes the purpose and value of this research.Chapter Ⅰ systematically reviews basic theory about procuratorial investigation and absorbs academic viewpoints of earlier findings. This part expounds concepts, attributes, characteristics, functions of civil procuratorial investigation powers and specifically reveals implementation subjects and exercising objects of procuratorial investigation powers. Furthermore,it abstractly summarizes some basic principles of setting up and excising procuratorial investigation powers and argues that principles of legitimacy, proportionality and effectiveness shall be regarded. It identifies some differences and relationships of procuratorial investigation and other relevant concepts like court’s investigating, lawyer’s evidence collection and duty crime investigation etc.Chapter Ⅱ historically illustrates evolution and development process of procuratorial investigation powers by text analysis method, from which we can learn some experience and lessons. Along with Civil Procedure Law Amendments in 2012, related norms became clear and definite. Procuratorates’ excising investigation powers has experienced changing process from sollen to reality, from argument to consensus and from disregard to emphasis. Its application scope has changed from strict limitation to wide expansion. Specific methods of procuratorial investigation have made great progress toward compound and diversity.Chapter Ⅲ probes into its specific application of procuratorial investigation and analyzes related typical cases in trial supervision procedure, illegal behaviors supervision and enforcement supervision proceedings for typed analysis. This part reveals functions of procuratorial investigation power in the course of evidence adoption and fact ascertaining by means of empirical research. In practice, the powers focus chiefly on investigating perjury, false litigation and fresh evidence etc. Secondly, they concentrate upon inquiring certain illegal and criminal behavior done by parties, judges and executives. Problems concerned have many similarities and differences. The research can only make conditional and incomplete summary because practical cases emerge in endlessly.Chapter IV discusses and analyzes critically some deficiencies in rules configuration and specific exercise of procuratorial investigation power according to empirical cases, data and information. Two interpretation texts made by SPP in 2001 and 2013 had great significance. However, they still have some specific defects such as more or less authority orientation, failure to respect parties’procedure interests and ineffective guarantee of legal measures etc. Specific methods cannot satisfy actual needs of supervision. Inner and outer cooperation sounds insufficiently. Some procuratorial organs have shown earnest interests in the power, while some others have only much less interest. In practice, many departments attach much more importance to substantial problems than procedural issues. Some staff cannot abide by procedural requirements.Chapter V inquires into powerful rationalization problems from angles of strengthening and restrictions in order to satisfy practical need and avoid abusing power. There are still some enrichment space in the rules of specific ways like records transferring, inquiring, inquest, identifying, collecting or measuring audio-visual material and electronic data etc. Procurators shall fully undertake the obligations of objective and fairness and safeguard good faith principle. They shall also intensify the measures of protecting the parties’ procedural interests and lessen authoritative attributes properly. Negative power list shall be set up and internal and external balance measures shall be strengthened.