| Procuratorial power is full of contradictions since it appears, which is determined by the characteristic of the link between judicial power and police power. It stems from judiciary, but is always in chains of administration. Different from the stability of judicial power and police power, procuratorial power is characterized by being more dynamic, which makes procuratorial power be a kind of power with expansibility and adaptability that judicial power and police power cannot achieve. To be dynamic makes procuratorial power integrate gradually with law and politics in a country and become unique. Compared with other powers, procuratorial power has a flexible creation of theories and regulations because of the uncertainty about its development. The perspectives and approaches of the research on the theories can be adjusted constantly to how to perfect procuratorial organ, which is an imperfect one; to perfect the nature of its power, the contents, and the performance of its power. As to the level of system, the power and the corresponding way of performance of procuratorial power, judicial power, and investigation power can be divided and formulated from the entire judicature on the basis of factors like the structure of power, the tradition of law, and the condition in the real world. But the uncertainty does not mean that the development of procuratorial power is unlimited and informal. No matter from longitudinal comparison or crosswise comparison, the general feature of procuratorial power can be summarized clearly through the appearance. Although different countries have different national conditions, and the judicial philosophy, the process and ways of enforcement are different in different countries, procuratorial power undertakes the same historical mission all the time. The establishment of modern procurator system aims at the double-regulation of the judicial power and the power of investigation(police power). From the perspective of the maintainance of legal order and the security of human rights, “prosecutor should be the governor of the law, prosecuting those who have broken the law, protecting those who are oppressed, and offering aid to all citizens”. The adscription, configuration and performance of procuratorial power may be different in different countries, but deviation from the historical mission of preservation of law, restriction of public rights, and protection of human rights will never be permitted. Every country, especially China, which is in the transitional stage, should try to find, between the experience of the Western countries and the practice of China, a balanced way to bridge the gap between the ideal and the reality to reform justice system. Consequently, the differences in the adscription, configuration and performance of procuratorial power are inevitable. It is not appropriate to evaluate and model Chinese procuratorial power after foreign experience.The fundamental function of procuratorial power in China should be embodied by its adscription, configuration and performance, which is also the basic criterion for judging the legitimacy and rationality of judicial system reform.The Judicialization of procuratorial power refers to the judicialization of its performance, in essence, the judicialization of the procedure. It reflects the change in way and the value orientation of its performance. The dynamic reasons for the judicialization of procuratorial power can be summarized as the following two aspects: firstly, its judicial nature; secondly, the requirement for the social development. Compared with other countries in the world, Chinese procuratorial power has the strongest judicial nature. And the judicial natue of procuratorial power requires that the performance of procuratorial power must adhere to the judicial principles, changing from an executive model to a judicial one, in other words, changing from an arbitrary unilateral model of no participation, opposition, or openness to a rational judicial deliverance model that is participant, opposed and open. In addition, the ultimate goal of system reformation is, in fact, to satisfy the value needs of the principal part. And the democracy, justice and credibility that the judicialization of procuratorial power has been embodied is to meet human needs of judicial democracy, justice and credibility. Therefore, the judicialization of procuratorial power is inevitable in China.Institutionally and practically speaking, the judicialization of procuratorial power is feasible. From the institutional aspect, the Constitution defines clearly and definitely that the legal nature of the People’s Procuratorate is the state organs for legal supervision. As the guardian of law, the People’s Procuratorate must have independent, neutral characteristics, and act fairly and equally. The regulations on procuratorial power in the Constitution are the abstract foundation of the judicialization of procuratorial power, and judicial remedy and judicial review of the People’s Procuratorate, granted by criminal procedure law, make it feasible to judicialize the procuratorial power. From the function of procuratorial power, the conclusion that the judicialization of procuratorial power is valid and legal can be drawn. From the practical aspect, the other institutional reformation in the past took a top-down mode, while the judicialization of procuratorial power bases on a bottom-up approach. It becomes a legal phenomenon that exists objectively, which reflects the real needs of the social development.This paper can be divided into seven chapters. Besides the introduction and conclusion, the paper focuses on the connotation, scope, theoretical fulcrum, methods, and guarantee measures of the judicialization of procuratorial power.Chapter one focuses on the connotation of the judicialization of procuratorial power, trying to answer the question that the connotation of judicialization of procuratorial power refers to its function or its power performance. To solve this question, it is necessary to analyze the origin question of procuratorial power. Generally speaking, operation method is decided by the nature of the power. If the nature of procuratorial power is executive, it is unnecessary to follows the judicial principles; If the nature of procuratorial power is judicial, its function is in itself judicial, and it is unnecessary to judicialize its function. So if judicial function of procuratorial power is exercised in an executive way, it is necessary to restore the judicial nature, ie. to follow the judicial principles. Through analyzing the characteristics of being incident, independent, passive, neutral, and ending, the paper draws the conclusion that procuratorial power has a judicial nature. By the analyzing the causes of divergence in its orientation, the paper indicates that it is appropriate for procuratorial power to operate legal supervision in a judicial way, and points out because of different criteria, the judicial nature of procuratorial power will not be denied by the orientation of legal supervision. Logically, the connotation of judicial nature of procuratorial power can be taken as the judicialization of power operation. The judicialization of procuratorial power not only refers to the formal direction or tendency of power operation, but also its value orientation. The analysis of the dynamic reasons for judicialization of procuratorial power operation proves that the judicialization of procuratorial power is in fact to make procuratorial power an independent, democratic, fair, efficient, accountable procedure. The value mentioned above can be proved by related experience like, exercising independently, judicial nature of the operation procedure in foreign countries. In the end, compared with the operation procedure of jurisdiction, based on the current law structure and functionalism, the paper proves that it is proper for the procuratorial organ to exercise the function of judicial review in a judicialization way.Chapter two focuses on the scope of the judicialization of procuratorial power, intending to answer the question whether its scope is a complete or a limited one. The nature of the question is to make the scope of the judicialization of procuratorial power clear. Firstly, this section makes a horizontal and vertical comparison of the development and contents of procuratorial power with foreign countries, and gives a literature review on its development and contents in China, which serves as the precondition for making the scope of judicialization of procuratorial power. Secondly, it generalizes the criteria for the scope of judicialization of procuratorial power: the structure of the principal parts of the procedure, the importance and influence of procedural decisions, and the effectiveness of judicial decisions. According to the criteria mentioned above, the paper will examine the contents of the procuratorial power and fix the scope of judicialization of procuratorial power, which includes: right of examination and approval of arrest, examination and prosecution, case supervision, detention necessity review, decision of the civil and administrative effective supervision, supervision of criminal appeal, and judicatory relief. Thirdly, it analyzes the legal foundation and feasibility of judicialization of procuratorial power from the intuitional and practical aspects. But, a system with feasibility does not mean there is no barrier in the process. So, lastly, it analyzes in details the scruple in the feasibility of judicialization of procuratorial power, discussing questions like, whether the conflicting roles of procuratorial organs can guarantee the objectivity and neutrality of cases review; how to step into the vacuum of the prosecutor’s power of supervision; whether promoting reform of trail-centered litigation system will be in conflict with the judicialization of procuratorial power. Institutionally, acting as the censor, the conflict does exist in the procuratorial organs. In order to solve the conflict, current legal structure offers a put-on-a-level way, which means that procuratorial organ of a higher level acts as the censor. Formally, the public’s doubts on the relative conflicting roles are reasonable.From the perspective of development, external supervision(people supervisors) can be introduced. In reality, the credibility of procuratorial organ and the achievement of its justice should be exercised by due process of procuratorial powers so as to remove the public’s doubts. In a sense, role conflict is not the barrier of judicialization of procuratorial power, but its contributing factor. The vacuum left by the abolishment of administrative examination and approval system can be stepped into by the client’s effective participation and the restriction of censor‘s power. The judicialization of procuratorial power will not take precedence over judicial powers because both have the same value orientation, which refers to the improvement of the quality of case handling by the fair performance of power. It will not pervert but promote the formation of a trial-centered criminal procedure structure by the division of cases and improvement of efficiency.Chapter three focuses on the theoretical fulcrum of the judicialization of procuratorial power, attempting to answer the question what is the theoretical foundation of it. The judicial democracy, fairness, and credibility should have a valid foundation, which is also the target of the judicialization of procuratorial power. The need of citizens for a democratic, fair, and credible jurisdiction requires the procuratorial power act fairly. Judicial democracy requires that the judicialization of procuratorial power embody an equal, respecting, and caring idea, guarantee a participant, equal, neutral, and open legal procedure. Judicial decisions, which come from the procedure of investigation, should embody the experiencing personally and direct and verbal principle. The credibility requires the judicialization of procuratorial power follow the judicial principles and law; excise the judicial power independently, openly, equally, and fairly; strengthen the authority of judicial decisions.Chapter four focuses on the methods of the judicialization of procuratorial power, intending to find some specific methods of it. There are two methods of the judicialization of procuratorial power: one is moderate judicialization(listening mode not under the same time and space), and the other is complete judicialization(trial hearing mode at the same time and space). Naturally, the implementation of the judicialization of procuratorial power ought to be based on the principle of listening mode, with the complement of hearing mode. Objectively, considering institutional factors, material security factor and the inequalities in social economy between different areas, the judicialization of procuratorial power should be based on the reality, allocate resources reasonably, intensify priorities, and advance gradually. According to the relevant observations of procuratorial reform in 2015, open review is implemented for “categories of cases”, and public review is implemented for "five cases" in an exploratory way. As to the two methods of the judicialization of procuratorial power, trial hearing mode should be the standard way. Thus, the thesis analyzes this point from the dimensions of epistemology, axiology and humanism. From the perspective of epistemology, the prosecution hearing mode follows the law of the unity of opposites,which in itself reflects not only the justice of the processing, but be conducive to the realization of objective to ensure the substantial justice of the case. From the perspective of axiology, it meets not only people’s needs for objective value, but also their pursuit of the value of the process, which makes the achievement of justice possible in a visible way. From the perspective of humanism, the prosecution hearing mode focuses on rights, highlights the client’s status as the main body of the procedures, and reflects the respect and protection for human rights. Based on this, the paper gives a specific construction of the prosecutorial hearing mode, including its fundamental principles, the scope, the main body, and the concrete procedures.Chapter five focuses on the guarantee measures of the judicialization of procuratorial power, attempting to answer the question what guarantee measures it need. The judicialization of procuratorial power needs support and guarantee from other institutions: the independent operation of procuratorial power guarantees a principal part for it, the openness offers a procedural part, the perfection of help from lawyer guarantees a procedural structure, the establishment of procuratorial house offers the material guarantee. Firstly, excising the judicial power independently is the precondition and guarantee for the judicialization of procuratorial power. Without the independent practice of procuratorial power, the judicialization of procuratorial power will be of no substantive meaning. In terms of the independent exercise of prosecutorial power, the relevant experience of continental law countries can be used as reference. The supervision of the case handling through a clear definition of the chief prosecutor’s right to receive and transfer the case will ensure independent exercise of the prosecutor, monitor the case handling mechanism of the prosecutor, and balance the coherence and independence of prosecutorial power. Secondly, the core issue of making the prosecutorial affairs public is the judicialization of procuratorial power, and the promotion of the prosecutorial affairs transforming from a formal publicity to virtual publicity in parallel with a formal one. The publicity of the prosecutorial affairs not only is the foundation of the judicialization of procuratorial power, but also provides the solution to the problems occurring in the process of the judicialization of procuratorial power. Thirdly, the assistance of the lawyer is beneficial to the formation of reasonable procedures of the trial hearing mode, the achievement of the constraints of public power, the protection of human rights, and promotion of fair review of the prosecution. If the lawyer’s intervention cannot be effectively guaranteed, a valid fight against the hearing mode will not be achieved, thus the justice of the judicialization of procuratorial power will be damaged greatly. Fourthly, the construction of procuratorial court is the material basis and platform of the judicialization of procuratorial power, and the basic guarantees of normalized and fair exercise of the function of procuratorial court. |
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