On The Problem Of Procuratorial-Power Allocation

The conflicts between the constitutional interpretation to procuratorial organs and its real political position in reality are the source of dispute on the nature of procuratorial power between academic circles and judicial practical circles. Though the constitution defines the procuratorial organ as the legal surveillance institution of the state, the correlative law does not entrust it with the corresponding power of legal supervision, especially the power of general supervision. But the litigation supervision and the general supervision are the landmark power of legal surveillance. Having these powers or not is the basic difference of Chinese procuratorial power under the System of People's Congress from the Western procuratorial power under the System of the Separation of Three Powers. Due to the lack of the allocation of the aforementioned procuratorial power, the debates on the nature of procuratorial power have inevitably happened. Therefore the way to harmonize the procuratorial power's constitutional nature and its real legal function is not to try very hard to demonstrate the nature of procuratorial power just like building castle in the air, but to scientifically allocate and construct the power restriction and supervision system and mechanism, which carry Chinese special character, based on the comprehensive evaluation on Chinese power structure and the application of the Constitution.The allocation of procuratorial power is a kind of normalization that the legislative body sets up the procuratorial organs and gives them special power meanwhile normalizes its running mechanism in the legislative procedure based on the community's special culture, tradition, history and the public legal-rights appeal. The purpose of allocating the procuratorial power is to regulate the procuratorial organs and protect the public's legal rights. To allocate the procuratorial power, the economy, culture and the other social problems should be considered. The basic target of the optimal allocation of the procuratorial-power is to well realize the power check and supervision in the System of People's Congress, and its ultimate target is to guarantee human rights.As far as the relationship between Phenomenon and Essence is concerned, Phenomenon reflects Essence, while Essence decides Phenomenon. They are integrated. The constitution is a normative description to the subjective spirit, while the constitutional politics is the abstract handling to the social reality. The existing conflict between procuratorial organs'constitutional definition and its constitutional position tells us a truth:if the whole constitution mechanism runs well, it means there are no big problems in the procuratorial system and mechanism, so it is not necessary to allocate the procuratorial power. On the contrary, if there are faults in the constitution system and mechanism, then the suspicion on the procuratorial organs' constitutional position should be suspended. First of all, we should analyze the deep conflicts and problems existing in the current constitution system and mechanism, then manage to solve the actual problem of the lack of constriction and supervision on powers, and to solve the problem of the lack of the positive interaction between powers and rights. Based on these, we can finally analyze the possibility to perfect the constitution system and mechanism.The basic problem existing in our current constitutional system is the lack of perfect supervision and restriction mechanism to powers. Judging from the theory of power, under the System of People's Congress, the management of power has no the interactional nature and are short of dynamic balance, and what's more, the steering management does not work, and the "lubricating system "—the public right relief—are not perfect. Most of all,"the startup mechanism" and "the lubricating agent", which are free from the legislative power, the administrative power, and the judicial power, are absent. Being in the network of all kinds of powers, the procuratorial organ as a kind of "power devices" has the characters of rationalism and conservation, the lack of the actual judicial disposition, and the representative of public interests. All of these make it be qualified for the very important task of "starting up" and "lubricating" the legislative power, the administrative power, and the judicial power, and make it become a very important organization to restrict and supervise the above powers. Now China is on the way to realize the dream of running the state by law. In the following long time of future, China will be in the state of changing from the "formal legal state" to the "actual legal state". This prospect will actually guide us to scientifically allocate the administrative power and the public rights. In order to ensure the procuratorial organ to perform its duty of public prosecution and duty crime detection, according to the constitutional description to the procuratorial organ and the critical subjective legal appeal by public to restrict the administrative power, the system of criminal lawsuit in China should be improved, meanwhile the right of presenting the civil and administrative prosecution should be entrusted to the procuratorial organ so as to strengthen its mechanism of supervision and restriction. As far as the procuratorial organ is concerned, not only its priority to duty crime detection should be cleared up, but also the right to take the corresponding detective techniques should be given to it. It is the time's requirement and the constitutional culture's valuable pursuit to perfect the procuratorial organ's supervision to suit and give the right of general supervision to it. According to the constitution, as the organization of legal supervision, the procuratorial organ should have the perfect supervision on the criminal, civil, and administrative lawsuit, and the general supervision on laws, regulations, rules, and normative legal documents. The ultimate objective and also the most valuable pursuit for the allocation of procuratorial is to construct China's special system of the power control and the right guarantee within the current constitutional politics with the guidance of power restriction and human rights protection.Based on the comprehensive study of the basic problem of procuratorial power allocation, taking the current constitutional politics as the systematic context, the fact of the procuratorial organ being the representative of public interests as the logic, the power restriction and human rights protection as the ultimate value, this article tries to do a complete and deep investigation on a series of problems relating to the allocation of the procuratorial power. Specifically speaking, it consists of introduction, the constitutional theory of the procuratorial power allocation, the constitutional definition and allocation of the public prosecution power, the allocation of the duty crime detection power, the allocation of the prosecutorial supervision to lawsuit power, the general legal supervision and so on.