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Research On Refraining Prosecutorial Power

Posted on:2008-05-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:X J XieFull Text:PDF
GTID:1116360242958585Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Research on refraining prosecutorial power is of great significance for safeguarding suspects' rights, for practicing justice, for promoting the rule of law in China. In the introduction, the author confined his research within the provinces and responsibilities of prosecutors. Therefore, refrainment on investigation, on public prosecution supporting, or on public prosecution alteration will not be discussed in this thesis. Moreover, what the author wants to discuss herein is quite different from the prevention of abusing of prosecutorial power. In this thesis, measures or actions are those which could refrain prosecutors from misusing their powers to decide whether or not to accuse someone on some crime, and those which are some legal institutions with coercion and effect. That is to say, non-procedural or potential institutions, such as prosecutors' appointment and removal, prosecution examination, and other restricting means, are not topics of the thesis. This thesis is composed of five chapters.In Chapter One, the theoretic and the factual reasons are given to justify that prosecutorial power should be refrained. While power refrainment and human rights protection are values underlining the rule of law, they just set the theoretic foundation for public prosecution refrainment. In modern society, with the social relations are increasingly Overcriminalized, the less private prosecution exist, and the more cases can be called criminal cases, the more powerful prosecutors' discretion there is. In the meanwhile, prosecutors have great power to lead investigation due to the vagueness of standards of proof and the occlusion of prosecutorial power, in particular the official offences. The entire above makes prosecutorial power inclined to being misused. Furthermore, suspects shall enjoy the benefits from unlawful prosecution, not being charged. Under this condition, if a suspect is accused, his interests is harmed, and these harms, including wrongful conviction, custody before the trial, social and psychological pressure when waiting for trail, discrimination, and procedural interests for suspects, will not be relived through impeccability judgment or state compensation. Besides, the abuse of prosecutorial power can make huge damages to social orders; even change a state of freedom into one of tyranny. Thus, public prosecution refrainment is of great necessity.Actuality of public prosecution misuse is presented in Chapter Two. China has no unambiguous and integrated criterion to judge theabuse of prosecutorial power, and this is the reason why the author reviewed other countries' experience in this field. Based on constitutions and due process of law, many new-type public prosecution misuses have been exposed, prosecutions against speedy trial, against double jeopardy, from leading interrogation, and selective prosecution, and prosecution for revenge, just name a few. If we use the same criterion as our foreign counterparts, we can say safely that misuse of the public prosecution right is very severe and pressing in China. For example, suspects were accused on scarce evidence, or were accused again and again on similar or the same evidence, or were accused even the lawful period of limitation had been over; some suspects were selected with bias to charge, in joint offence, while the others were released without any punishment; sometimes prosecutions were brought against informers, news reports, lawyers and such, only to make revenge; and there are also many prosecutions against misdemeanors. Under these circumstances benefits from nonprosecution can hardly be enjoyed by suspects. Through counting these facts, the author disclosed the deficiency of present refrainment institutions on the public prosecution right, thus clarified the objects of the refrainment, and pushed the justification of it further.Overseas experience in refraining prosecutorial power is introduced and compared in Chapter Three. One important and common rule in all the researched countries is that Head of Judiciary has the power and authority to condition the public prosecution right. However, these Heads of Judiciary must keep their own independence through some restrictive institutions in order to protect prosecutorial power from being controlled by politics or administration. The purpose of this independence is to practice the balance between the public responsibility of public prosecution and the public prosecution right itself. Superior prosecutors should supervise the work done by their inferiors, and this kind of "supervision" is not absolute and must safeguard the independence of inferior prosecutors. The most effective measure to refrain prosecutorial power is judicial review presided by judges, such as judicial review on nonprosecution, or judicial review on preliminary trial. As far as the judicial review on preliminary trial is concerned, it should prevent preliminary trial not only from being inane, but also from transformed into a real trial, and could put procedural punishment on the public prosecution right through withdrawing accusation. The people also can supervise prosecutorial power by the grand jury in the United States, or by checkup committee in Japan. All the four measures discussed in the chapter are affected by politics, economy, and culture in a country. Anyway, all the efforts the author made are to put forward new perspectives for China's judicial reforms.The past and status in quo of the public prosecution refrainment is recorded in Chapter Four. At present, the refrainment is fulfilled via following ways: regulation from politics and law committee, case supervision from people's congress, reconsideration and double check and approval from procuratorate, examination from chief procurator or procuratorial committee, and opinions from people's ombudsman. Nothing is perfect. All the above actions have their own defects. First, no uniform or clear codes or articles can be used as justification. Second, anyone in "politics and law committee" or "people's congress" or superior procuratorate or superior prosecutors has great powers and is inclined to misuse them. Third, the supervised procuratorate and prosecutors lack the independence to carry out their duties. Fourth, much restrict has been put on nonprosecutions while little on prosecutions. Fifth,'the majority of restriction on prosecutorial power is administrative. Sixth, there even are some firm requirements for nonprosecution with only the hearing for suspects excluded. Seventh, regional authorities play significant role in the supervision and procuratorate serve on the regional interests as the result. Eighth, suspects have no access to take part in the procedure which is designed to supervise the public prosecution. The last but not the least important, social factors are overly emphasized to practice particular effects.All the measures mentioned above, in some degree, make the refrainment on the public prosecution right reality, but theindependence of prosecutors is deprived; ensure the supervision and control on nonprosecutions, but the right of not being prosecuted itself is sacrificed; practice the control over normal cases, but prosecutorial power is surrendered to political and such powers. The focus of China's present pursuit in prosecutorial power is to maintain social order, not to safeguard suspects' rights and interests; is to realize essential justice, not to practice procedural justice. Therefore, the misuse of the public prosecution right can be found easily and frequently. The worst of it is that some measures have dissimilated into blocks against implementing prosecutors' responsibilities and duties. In a word, there are two main problems exist in the refrainment on prosecutorial power in present China, one is unsuitable means, and the other is exiguous actions.In the Chapter Five, the author listed principles and rules concerning how to constitute a whole new system to refrain prosecutorial power in China. First of all, division of powers, and checks and balances. That means legislature shall not participate in or determine the implementation of the public prosecution right; the power of investigation, the power of prosecution, and the power of judgment shall be separated; the authority and power shall be divided betweensuperior and inferior prosecutors; and the power to bring a prosecution and the power to approve the prosecution shall be separated. Secondly, keeping the independence of the implementation, and avoiding the interference from politics and from the superior. Thirdly, due process of law. Suspects' right to release from unjust prosecution shall be clarified and protected. And this right shall cover startup and participation the criminal procedure, the neutrality and detachedness of the refrainers, the openness of the procedure, and shall set up a procedural punishment system. Fourthly, moderation and balance. The balance between the responsibility and independence of the public prosecution shall be kept, and the balance between justice and efficiency shall be maintained.For rules, there are five. At first, we should abolish the mediating power of the politics and laws committees. Then, we should set a specific and independent organ within the people's congress to supervise by case. There shall be a required hearing for every nonprosecution case. Moreover, we should reconstruct the relationship inside the prosecuratorate to give prosecutorial power down to every separate and independent prosecutor. The superior prosecutors shall only have the rights to supervise, to succeed, and to transfer the duty or work assumed by their inferiors. The inferior prosecutors shall report to their superiors about complex cases, and shall apply the just and consistent policies to all the case within their domain, and shall keep fair and independent, and shall only obey laws and conscience. Furthermore, hearing shall be the only way that people's ombudsmen exert their power and authority. At last, we should construct preliminary trial machinery. Judges shall be given the power and authority to review the prosecution so as to prevent the misuse of the public prosecution right.
Keywords/Search Tags:abuse of prosecutorial power, refrain, relative independence, supervision by case, people's ombudsman, preliminary trial procedure, prosecutor
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