A Study On The Power Of Prosecution In View Of Sociology Of Law

The Power of Prosecution is recognized as one important state power of modern nations ruled by law,and is also the most active element in the criminal procedure.Power of Prosecution was not born together with criminal procedure.The birth,growth,and getting mature of the Power of Prosecution was associated with the state's pursuit for more extensive and inner interests through criminal procedure,together with the state's action to undertake more social responsibilities.The arising of the Prosecution Power brought meaningful impact to criminal procedure which is developed into a very special model within the context of legal operations. And complicity of criminal procedure was increased by the involvement of such power.The Power of Prosecution is a kind of phenomenon of law,and to its core,a phenomenon of society,which is a state power created to meet the differing requirements of state and society for the investigation and accusation of crimes at different stages during the evolution of society. That's the real reason why different features appear when vertical and horizontal comparisons of Prosecution Power among different societies are carried out.Therefore,it provides us a more realistic route for analysis when we make research on the Prosecution Power by taking sociology of law as our methodology and tool.By doing so,the Prosecution Power,as the object of our research,is posed at a more broadened background besides the shadow of criminal procedure and sole legal system.It's helpful for us to identify the real party served by Prosecution Power,to make clear the fundamental motivation of the arising,developing and growing up of Prosecution Power,to undercover the relationship between Prosecution Power and social development,and to disclose the function of Prosecution Power in the endeavor for the realization of social harmony.The Power of Prosecution is created as the replacement of private prosecution at certain stage during the development of criminal procedure. The replacement of private prosecution by Prosecution Power in the period of social evolvement is due to the reality that certain social needs could not be satisfied any more by private prosecution.Those social needs include, specifically,(1) the increasing of the amount of crimes where no specific offended exists due to the amounting complexities of criminal cases.(2) the society's calling for the lowering of the cost for the eliminating of crimes. (3) the requirement of society for the moral justifications in the settlement of social disputes.(4) the growth and full development of the theory and technology of state ruling should be deemed as the social orientation for the creation of a crime investigation and accusation force which is more widely accepted,more efficient,more justifiable,and more powerful.The creation of Prosecution Power is,therefore,the natural fruit of social development.The Power of Prosecution is created upon social requirements at certain stage,and is making self-regulation from time to time with the guiding lines and methods along with the arising problems,the new requirements during the gradual change of society.In the process of gradual separation and opposition between society and state,and incremental growth of social force,from the view point of proceedings,the Power of Prosecution is separated from the power of trial,getting to be equal with the right to defense.And,to some different extents,the power of investigation and accusation on crime is given back to the offended.As to the power itself,the investigation and accusation is strengthened against the crimes affecting personal safety,the supervision of state power is achieved through the adjudication of crimes carried out by public servants,while being no interference any more with some private lives.In the progress of cultural evolvement,the change and development of Prosecution Power along with the social morality and ethics,the decrease of religion power, and the advancement of technology are regulating the investigation and accusation of crimes,to different degrees,both on procedure and substantive issues.The effects of evolvement of economy on Prosecution Power is fundamental.On the one hand,the development of economy have effects on the substantial aspects of Prosecution Power,since that development bring about new subjects of crime,give rise to more social disputes,which results with the changes of common social comments on people's action and the increasing of crime.On the other hand,it leads to the change of means and style for the carrying out of Prosecution Power, since the growth of economy provide more resources for the operation of power,as well as bringing fresh ideas to human minds.The Power of Prosecution is given birth upon the needs of the society, and is shaped and developed along with the evolvement of social classification as well as some individual element.At nowadays it has been grown into a crime attacking force adopted worldwide.In modern society ruled by law,the social values of Prosecution Power include:the value to safeguard social order,the value to save social resource,to value to realize social rationality,and the value to realize social justice.The social functions include:the function of interest protection,the function of interest balance,the function for power restriction,and the function for procedure triggering,advancing.In traditional Chinese society,there was no real Prosecution Power which has the same meaning of it under modern society.Ruled by the Empire,there was no concept of citizen at all in traditional Chinese society. So Power was admired,but Right was ignored.Under that circumstance the state power to investigate and accuse crime was cruel,not independent,and was abused at will,without any apposing restriction such as right to defense.With consideration to the influence of LI System which was so powerful in traditional Chinese society,the power of state to investigate and accuse crimes was extensive but obscure.The standard of LI System is the thinking basis for the state power to bring criminals to justice,but professionals of that field could not be produced by that system.Stability motivated and harmonization oriented,no power and right could found to restrict or limit state power with regard to investigation and accusation of crime.Personal and family life was invaded by state power.'Proper Penalty' is accepted as guideline for the accusation of criminals.As a characteristic of thinking in traditional Chinese society,individual case were paid much more attention than general rule,thus ruling by law is not well developed.As a matter of fact,the procedural justice which is applicable commonly was much more outweighed by substantial justice embodied by individual case.The journey of modernization of China stepped out by the end of Qing Dynasty,while the modernization of the Prosecution Power of China commenced with the movement for revision of law which occurred at the very end of Qing Dynasty.Thanks to that movement,the modernized concept of Prosecution Power was introduced into China.In the past almost one hundred years,the concept of Prosecution Power of China saw its evolvement from the ends of Qing Dynasty to the periods of the People's Republic of China.Headed by the system reform of economy which began from the late 1970s,China entered into a transit stage of significant reform, which is also a term whereas the Prosecution Power was experiencing a profound change.Within the past almost 30 years,the sprits of citizen and the concept of rights woke up among Chinese society.The concept of Prosecution Power which stressed much more on the accusation of crime was added by new meaning to combine the accusation and the protection of human rights,empowering more citizen rights to restrict Prosecution Power. Prosecution Power itself witnesses more limitation at the same time.The gradual transfer of Chinese society from "neighborhood society" to "strangers' society" put forward new requirements for the Prosecution Power,and poses a new challenge to that Power.It's a reality that society has been classified whereas the social members are more motivated to claim for the right of equality for opportunities.Therefore it should be taken into account by the Prosecution Power to treat the accused party equally.The accused party will enjoy more choices and resources to challenge the Prosecution Power on a level play field.While treating the opposing party equally,the Prosecution Power shall,at the same time, compensate the factual un-equality brought about by social classification in light of that doctrine that every case have its merit.The opinion on harmonization has been transferred from traditional concept which emphasizes personal obligation and totality stability to the newer one which encourages personal full development and active coordination. Correspondingly,during the investigation and accusation of crimes using Prosecution Power,not only the social and state interests should be met,but also the willingness of the parties should be respected.Thus the criminal disputes/conflicts between the parties,and that between state and the accused,could be settled peacefully.Power of Prosecution is a force pushing forward and safeguarding the sound and through transit of our society.Therefore,within the forthcoming term of our social change,Prosecution Power must be regulated among three kinds of conflicts,which are:(1) the conflicts between social order protection and citizen rights protection;(2) the conflicts between modernization and traditional heritage;(2) the conflicts between the ideal and reality of Prosecution Power.