Study On The Constitution Article135

In recent thirty years, the reforms of the judicial systems are prevailing aroundthe world. China began to propose the reform of judicial system since the late1980s,and launched the strong deepening reform of the judicial system in2013. Theoptimization of the structure of the judicial organs and allocation of their functionsand power is the core of the judicial reform. The study is needed on the ConstitutionalArticle135as a constitutional and judicial principle that provides the relationship andworking targets of the organs of the court, prosecutorate and public security (aliasedas three organs hereinafter) in the criminal procedure. However, a considerable part ofscholars ignores the basic system established by the Constitution of China with toomuch emphasis on extraterritorial experience, on the other side are divorced from theChinese judicial realities and actual demand. They did not conduct enough researchon the actual situations of Chinese judicial systems, and did not pay much attention onthe reform appeal and actual demand from the judicial practice departments.Therefore, the reform programs proposed by such scholars are not only beyond theChinese Constitution framework, but also divorced from the specific judicial practice. If we build the country by law in a manner contrary to law, the result cannot havesubstantial impact on the judicial system reform.This thesis argues that the deepening of the judicial system reform cannot be ofstopgap measures and only stay in form. We have to think deeply to clarify the basicconcepts of the judicial organs, judicial powers and legal supervision under theChinese constitutional systems. We should consider the special stage of the China’sdevelopment to design the judicial system based on the China’s national conditionsaccording to the constitutional value pursuit and the modern litigation philosophy. Inour criminal judicial system, we should pay high degree attentions on the congenitaldeficiency of the court’s status, the Chinese characteristics of the procuratorial organpositioning and the acquired disorders of the investigation power exercise of thepublic security organs. From the practical point of view, on the one hand, theinfringement of the basic rights of the investigated individual and the frequentexposures of wrongful convictions continue to destroy the judicial credibility andauthority. On the other hand, the interferences in the administration of the justice fromthe external power subjects and social opinions in various ways are the importantreasons that cause the inefficient constraints between three organs. In order toimprove the implementation of the Constitution Article135, it needs to:(1) optimizethe power allocation and clarify the constitutional and legal relationships betweenthree organs.(2) ensure that three organs return to their proper constitutional status,that is, the judicial and procuratorial organs can excise the power of jurisdiction andprosecution according to law independently and impartially; and the public securityorgans can excise the power of investigation strictly according to law.(3) establishand maintain the authority of the People’s Court and enhance the legal supervisionpractical effectiveness of the People’s Procuratorate.(4) respect the laws of justice, ensure the judicial authority and respond to the judicial practices in order to make theChinese criminal justice to become the new judicial model of the protection of basicrights and the pursuit of justice.This thesis adopts the methods of historical analysis, normative analysis,comparative analysis, empirical analysis and specific case analysis. Beginning withthe core values and power allocation of the Chinese Constitution, the thesis reviewsthe historical context of the Constitution Article135, and further conducts theconstitutional interpretation on the principle of separation of responsibilities, mutualcoordination and mutual restriction in criminal procedure between three organsprovided by the Constitution Article135. Through extensive survey on legalprofessional groups and in-depth analysis of typical cases, the thesis summarizes theserious drawbacks of three-organ model in Chinese criminal justice practices, andfurther analyzes the causes of such drawbacks. It concludes that the rights are tooweak to balance the powers in the Chinese constitutional configuration and the powerof jurisdiction and prosecution is not enough to restrict the investigation power. Inaddition, it explores how to optimize the legal authority configuration in criminalprocedure and improve the relevant measures of safeguards so as to implement theConstitution Article135effectively and reach the objective of protecting the citizen’sfundamental rights.The thesis consists of five chapters as the follows:Chapter1: The multi-interpretation of the Constitution Article135. This chapterfirstly traces and reviews the historical evolved context of the relationship betweenthree organs. At the beginning of the creation, the Chinese legal system transplantedin large scale the relevant provisions of the former Soviet Union, especially theprocuratorial system. It provides the historical background support to interpret the present relationship between three organs by examining the historical origins,formation, establishment and entering the constitutional law of the relationshipbetween three organs. The sections2and3dissertate that the protection of citizen’sfundamental rights is the starting point and ultimate value of the modern constitutionsfrom the view of the constitutional value, and dissertate upon the constitutional statusand duty range of three organs from the view of the constitutional power allocation. Itcan properly hold the relationship between three organs only by understanding theproperties, duty positioning and value subjective of three organs comprehensively andsystematically in the constitutional context. It gives the normative interpretation of theprinciple of separation of responsibilities, mutual coordination and mutual restrictionprovided by the Article135in the constitutional level with the considerations of thepurpose of the Article135entering the constitution, and the general intention andobjective of the Constitution. The thesis argues that the normative interpretation of theArticle135must highlight the restriction as a core of the power relation system byseeking the interpretation according with the modern criminal judicial concepts underthe prerequisite of protecting the citizen’s fundamental rights and independentjurisdiction and prosecution. The separation of responsibilities emphasizes that threeorgans have independent duty range and respectively excise the power of jurisdiction,prosecution and investigation conferred by constitution and law. It requires threeorgans to perform their duties according to the power allocation and procedureprovided by constitution and law. The mutual coordination is the convergence of theworking procedure. The common tasks of three organs determine that it needs themutual coordination in criminal procedure. However, the mutual coordination is notrandom and unprincipled compromise. The primary purpose of the mutualcoordination is to achieve the effectiveness of the state power operation. The mutual restriction should run through the whole process of power excises performed by threeorgans. The restriction should be the core of the relationship between three organs.From the points of the overall structure of the constitution and the value of protectingfundamental rights, the mutual restriction should be understood as that the courts arein the first place, followed by the procuratorial organs, and then the public securityorgans. The investigation power and prosecution power respectively excised by thepublic security organs and procuratorial organs should be restricted by the jurisdictionpower excised by the court organs. Meanwhile, it has to take the Article135as awhole body. If biasing towards any side, it will be far away from the original intentionof the constitution and lead to imbalance. The principle of separation ofresponsibilities, mutual coordination and mutual restriction is of unity and acomplementary organic whole. The common objective is to ensure the accurate andeffective implementation of the law.Chapter2: The legislation implementation of the Constitution Article135. TheConstitution is the supreme and fundamental law of a state. The rigid contents andbasic principles provided by the Constitution can creates vitality only though effectiveimplementation. The main applicable way of the constitution is the legislation thatspecifies the constitution and ensures the implementation of the constitutionalprovisions. This chapter examines the present legislation status of the powerallocation and mutual relationship between three organs in the criminal procedure law,organic law of the people’s court, organic law of the people’s prosecurate, the people’spolice law and other relevant judicial explanations. This chapter concludes that Chinahas formed a relatively complete legal system with core of the criminal procedure law,organic law and judicial explanations to restrict the specific power and mutualrelationship of three organs in the criminal proceedings. Chapter3: The practice samples of the Constitution Article135. This chapteraims to study the real operating status of the criminal judicial practices of the threeorgans in-depth through the case analysis and empirical research in order to show atrue picture of the mutual relationship between three organs in the criminal judicialproceedings. One the one hand, the empirical research was conducted with the mainform of unnamed survey among the courts, prosecurate, public security and law firmsin typical areas around the country, supplemented with deep discussion with somejudges, policemen and lawyers to learn the opinions and suggestions on theConstitution Article135from the legal professional groups. On the other hand, itshows the specific operating conditions of three organs in practice and reflecting thecommon problems in judicial practices through typical case and data analysis.Chapter4: The value judgment of the Article135in practcile operation. Basedon the empirical research and case analysis in previous section, this chapter performsthe value judgment of the relationship mode between three organs carried out formany years. Three organs make a significant contribution to maintain the stability ofthe social order through the close cooperation to form the powerful force to publishthe criminals. However, the current relationship model between three organs showshuge drawbacks in practical operation. Firstly, the mutual coordination is dominant inthe relationship between three organs. Secondly, the power restriction is absent.Thirdly, the citizen’s fundamental rights cannot be protected in criminal proceedings.Inquiring deeply into the things, the primary cause of the dysfunction of therelationship between three organs is the unbalance of the power allocation in theconstitution design. The rights are too weak to balance the powers and the power ofthe investigation is beyond the framework of the constitution. Meanwhile, there is thetension between the criminal judicial system and the principle of mutual coordinationand mutual restriction. Otherwise, there are multi-factors that affect the effectiverestriction between the powers in practice.Chapter5: The path to improve the implementation of the Constitution Article135. This chapter proposes that the Constitution Article135is implemented accordingto the path of restricting the power and protecting the citizen’s fundational rights. The power allocation is transferred from the public security, prosecurate and court to thecourt, prosecurate and public security. The legislation is transferred from publishingthe criminals to guarding the citizen’s fundamental rights. On the one hand, theoptimization of the power allocation focuses on the restriction of the investigationpower, establishes the judicial relief system of guarding personal freedom and enactsunified procedure regulations of the investigation supervision. On the other hand, theadjustment of the relationship between the court and prosecurate should set up theauthority of the jurisdiction, ensure the independence of the jurisdiction and innovateupon the legal supervision.