| Procuratorial suggestion is a very "Chinized" legal phenomenon. The suggestion of the foreign procuratorial organs basically belongs to the category of public prosecution functions, mainly applying to criminal procedure enforcement. But in China, procuratorial suggestion exerts pluralistic functions. Through historical investigation, procuratorial suggestion and procuratorial function have intrinsic relationship: procuratorial function provides direct basis for procuratorial suggestion, and procuratorial suggestion is one of the manifestations of procuratorial function; the given procuratorial suggestion always embodies the certain procuratorial function, and with the increasing improvement of procuratorial function, procuratorial suggestion have been developed abundantly. Procuratorial suggestion's basic position is to base on procuratorial function, to combine law enforcement and case-handling, and not to recommit the same error of "common supervision" in the past. Of course, from the perspective of development, the transformation and development of procuratorial function certainly drive procuratorial suggestion to make progress synchronously; in turn, the innovative practices of procuratorial suggestion will also promote further expansion and improvement to procuratorial function.The study idea of "procuratorial function-procuratorial suggestion" can not be divorced from Chinese procuratorial system and the inherent regulations of the constitutional system. Analyzing from the nomology, when procuratorial organs take procuratorial function in to practice,, procuratorial suggestion includes those behaviors which are to urge the specific objects to correct, deal with or improve their work in written form, aiming at related offence behaviors or litigation matters which impede the realization of procuratorial purposes and the hidden troubles which may lead to illegal and criminal cases again.Under the system of National People's Congress, based on, relying on even and supported by procuratorial power, procuratorial suggestion is a sort of instrumental procuratorial behavior. As far as its nature is concerned, procuratorial suggestion is a kind of expressive behavior of procuratorial organs, and respectively expresses propositions of participating in litigation, legal supervision and preventing illegal and criminal cases. Therefore, it belongs to behavior of power,bears compulsory and persuasive at the same time and generates legal effect in procedural sense. Compared with common procuratorial behavior, procuratorial suggestion is characterized by the generalization of legal basis, the subordination of legal status, the negotiation of legal relationship, the weak power of legal behavior and the uncertainty of legal effect. Through systemic arrangement to the pluralistic applicable scope and complex legal basis of current procuratorial suggestion, based on procuratorial function, procuratorial suggestion should be classified into three types:procuratorial suggestions of participating in litigation, of legal supervision and of preventing illegal and criminal cases. These three types of procuratorial suggestion have different characteristics and respectively apply to bidirectional litigation restricting relations, unidirectional legal supervision relationship and derivative procuratorial guidance relationship. If people range procuratorial suggestion in accordance with the type of legal supervision, of participating in litigation and then of preventing illegal and criminal cases orderly, then there is a state of compulsion gradually weakening, and persuasiveness gradually strengthening.。Respectively cooperating and supporting each corresponding procuratorial functions, three types of procuratorial suggestions play a role in the extending law-enforcement effect in practice, promote the comprehensive governance of public security and the construction of fighting against corruption and of encouraging honesty, highlight the social value of procuratorial work; three types of procuratorial suggestions improve procuratorial means, form the supervision method of "combining hardness and softness", and realize the "soft landing" of legal supervision; they strengthen legal supervision, respond to the people's judicial needs, and timely achieve fairness and justice; they implement constitutional position of procuratorial power, expand the scope of legal supervision steadily, and promote administration according to law and judicial administration fairly. However, because of the lower legalization degree itself, procuratorial suggestion has both good and bad reputation in practice and needs to be transformed urgently. Through comparative analysis with judicial and administrative suggestions, the legalization degree of the court's judicial suggestions and existing problems are roughly equivalent to procuratorial suggestion, and both of them have a considerable degree of coincidence in applicable scope, so integration is very necessary. On the other hand, the theory and legislation of administrative suggestions are relative mature, so it is valuable for procuratorial suggestions to fully use for reference in the improvement of system.As "a power in practice", the improvement and development of procuratorial suggestion is facing the important task of the legalization. Whether from the necessity of reality, the legality of basis, the rationality of theory or from the regulation of objectivity, the legal development of procuratorial suggestion possess the legitimacy basis. The primary task of procuratorial suggestion's legalization is legislation. The problems of non-uniform theoretical understanding, the lower authority in practice, imbalanced functional structure, disordered applicable scope, irregular operating procedure all of which caused by the inadequate legal basis must be settled as soon as possible and timely so as to transform the procuratorial suggestion's legitimacy in nomology into the "legality" in institution, to further improve the level of legitimacy, and thus to drive procuratorial suggestion gradually to being mature and perfect. Among them, procuratorial suggestion of the type of legal supervision and the main of the type of participating in litigation should be transformed into procuratorial authority behavior, and procuratorial suggestion of the type of preventing illegal and criminal cases, which belongs to procuratorial guidance or procuratorial service behavior, does not act as procuratorial organs' legal power. Focusing on the transformation of procuratorial function from "litigation type" to "constitutional type", the procuratorial organs should exploit the institutional functions of constitutional organs, not only continuing to exploit the function of participating in litigation, but also spreading the function of legal supervision in full and expanding the scope of legal supervision to administrative law-enforcement activities and legislative activities. Following this, procuratorial suggestion should also come out from the litigation activities, and make the procuratorial organs'supervision extend to administrative law-enforcement activities and legislative activities.To be on the safe side, the legalization process of procuratorial suggestion should have a clear idea and be progressive, step by step. The target model is the "Procuratorial Suggestions Law" our country makes specially. Before this, some transitional measures can be selected. Firstly, to modify and improve "Provisions of People's Procuratorate Procuratorial Suggestions (Trial Implementation)" not only establishes different procuratorial suggestions corresponding to procuratorial organs'different functions of participating in litigation, of legal supervision and of preventing illegal and criminal cases, but also coordinates and arranges the applicable scope of procuratorial suggestions, of procuratorial opinions and of the notice of correcting illegal behavior, so that it can prevent the phenomenon from mixed or unreasonable use to them. Secondly, the relevant normative documents should be signed jointly. Regarding to the implementation of procuratorial suggestion in litigation activities, especially procuratorial suggestions of the retrial of civil and administrative cases, suggestions of replacing the investigators, and sentencing suggestions, Supreme People's Procuratorate should sign the relevant normative documents jointly or respectively with Supreme People's Court, Ministry of Public Security and Ministry of Justice; regarding to the implementation of procuratorial suggestion in administrative law-enforcement activities, Supreme People's Procuratorate should sign the relevant normative documents with State Council. Thirdly, local legislation should be guided and promoted. The relevant legislation activities of local people's Congresses are actively promoted and normalized through the People's Congress system so as to promote national unified legislative process. Fourthly, nationpeople strive for national amending and legislative interpretation actively so that make procuratorial suggestion write into "Organic Law of the People's Procuratorate", "Criminal Procedure Law", "Civil Procedure Law" and "Administrative Procedure Law"; regarding to the implementation of procuratorial suggestion in legislative activities, the NPC Standing Committee should make the legislative interpretation and authorization, and orient procuratorial suggestion as a kind of special power of instituting unconstitutional review definitely. Fifthly, special legislation of "Procuratorial Suggestions Law" should be promoted strongly. The general idea of "Procuratorial Suggestions Law" is to further enrich and strengthen procuratorial suggestion of the type of legal supervision, in particular to summarize and to improve procuratorial suggestion of litigation supervision, to emphasize on expanding procuratorial suggestion of supervising administrative law-enforcement activities, regulate procuratorial suggestion of supervising legislative activities reasonably; The general idea is to consolidate and to simplify procuratorial suggestion of the type of participating in litigation, to restructure and to weaken procuratorial suggestion of the type of preventing illegal and criminal cases. Finally, this paper provides academic proposal draft of "Procuratorial Suggestions Law". According to the above idea, the basic framework of this paper consists of five parts. The first part of "general principles" mainly stipulates the legislative purpose, the implied meaning and basic principles of procuratorial suggestion and so forth; the second part of "the content, object and applicable scope of procuratorial suggestion" establishes related provisions to procuratorial suggestion of the types of legal supervision, of participating in litigation and of preventing illegal and criminal cases respectively; the third part of "the implementation procedures of procuratorial suggestion" mainly prescribes such issues of the subject, domination, examination approval, delivery, recording, supervision, almsgiving, alteration or revocation of procuratorial suggestion, and the investigation and evidence collection in the procuratorial suggestion; the fourth part of "legal responsibility" regulates related provisions from the suggested objects and procuratorial organs respectively; the fifth part uiof "supplementary articles" ordains other relevant items, thus forms a relative systematic legislative suggestion's text so as to provide valuable support for the legalization development of procuratorial suggestion. |
PDF Full Text Request