Prosecution Right Of The Original Theory

This article probes the basic problems of the right of prosecution and centers on the birth and evolvement of the right of prosecution, the spirits and system basis of the right of prosecution, the essential attribute of the right of prosecution, the exertion principles of the right of prosecution, the legal relation of public prosecution and the system guarantee of the exertion and independence of the right of prosecution etc.The right of prosecution is the center of the procuratorial power. In the criminal procedure, the right of prosecution of public prosecutor is an important litigant right and has direct relations with the judicial authority, the right of defense and the right of detection in the litigant formation .And it has some relations with the litigant condition theory and opposes to the right of defense and the judicial authority.The right of prosecution as an absolute and subjective right is the power to prosecute to commission. What the public prosecutor iwants to settle in the criminal proceedings is to make certain the legal relation between the country and the accused and to avoid judging the accused again. In the cases of public prosecution, the court should exert the power of properly and make the criminal penalty legal, rational and moderate.The commission is prosecuted by accusation, but the law of criminal procedure in each country is different in the accusation mode. The public prosecution and private prosecution both have their merits and defects. Because the apposite mode of public prosecution and private prosecution is better than the single litigant mode, most countries in the world adopt the apposite mode of public prosecution and private prosecution to prosecute the commission.The right of prosecution and procuratorial system in the western countries are derived from France and Britain. There is no public prosecution system in the Chinese archaic political and legal system.The early spirits and system basis of the right of prosecution mainly are establishing the independence between the right of prosecution and the judicial authority, establishing the uniform procuratorial standard and establishing the special system of prosecuting commission. The modern spirits and system basis of the right of prosecution mainly are vindicating the constitutional government, supervising the constable police, restricting the judge and conditioning the right of defense.The procuratorial power whose center is the right of prosecution is an important embodiment of the country authority and a kind of multiple power. The right of prosecution has the following power characteristics: 1) the characteristic of claiming and advising, 2) the characteristic of disposing insubstantially, 3) the characteristic of according with law. The structure characteristics of the right of prosecution are the classification and integration in the system of the procuratorial structure. The main points about the essential attribute of the right of prosecution in the academe are the theory of administrative powers, the theory of quasi-power of the sword of justice and the theory of legal supervision. The essential attribute of the right of prosecution in the litigant formation is the power to litigate, not the power to supervise. In the criminal proceedings, the exertion principles of the right of prosecution mainly are the followings: the principle of vindicating public interests, the principle of separating the litigation and judge, the principle of prosecuting legally, the principle of balancing the right of prosecution and the right of defense, the principle of prosecuting impersonally and the principle of forbidding prosecuting the commission again.The legal relation of the public prosecution is composed of the subject, the object and the action. In fact, public prosecutor is the party, but not the common party. The exertion of the right of prosecution should accord with legal and factual conditions. Factual conditions include the evidence standards of initiating a public prosecution and coherence...