Research On The Improvement On The Justification Of The Procedure Of Criminal Prosecution Examination

In the process of democratization and legalization, checks on powers have becomeincreasingly active in China. It is an important aim for the ruling party to put the powersinto the system of the cage and form punishment mechanism, prevention mechanism andsecurity mechanism to combat corruption, which will also become the important contentfocused on from the political life of the national level to the specific cases in judicial field.Procuratorate in China is entitled to the power of legal supervision, which includes not onlythe power of investigation, prosecution, but the power of supervision over investigativeorgans and judicial organs as well. And so, the procuratorate is called the judge’s judge bysome scholars, which has the power over the other powers. Procuratorate throughout theworld has the power of public prosecution, which is convenient for different legal regionsto compare, refer and study from each other. In China, the mode of checks on publicprosecution power has caused great controversy because of its unique character anddifference from othe judicial regions. The necessary of checks on public prosecution powerhas reached a consensus among the current society, academic and practical circles, andSupreme People’s Procuratorate also issues some measures within its authority, such asthree levels of examination and approval system, people’s supervisor system andnon-prosecution hearing system and so on. However, the academic circle prefers checks onpublic prosecution power from the judge based on the universal truth. It is a great pity thatthe amendments of criminal procedure law in2012adopt nothing from the advice of thescholars and experts and the judicial interpretations issued by Supreme People’sProcuratorate. In view of the important role of these two legal documents in regulating the publicprosecution power, the author doesn’t thinks that different kinds of exploration and adviceup to now can really cause the the attention of lawmakers because of their congenitaldeficience and cquired disorder. And so, there is still a long way to go and we have to workhard.As one of the three major powers in criminal procedure, although the publicprosecution power is paid less attention to than the adjudicative power, it can be extendedto the investigation procedure and the whole trial procedure and becomes a bridge betweenthem.Procuratorate which has public prosecution power is the legal supervision organconfirmed by Constitution, which has special function and position. But as a kind of power,the public prosecution power can be abused against the rihhts from the beginning.Therefore it is necessary to discuss the chechs on it in theory.The procedure of prosecution examination based on the system in China has someproblems such as the closed procedure, the litigants’ insufficient participation,administrationized and written examination, lack of independent decision and self-directedand self-evaluating relief procedure, which lead to the problem of the justification of publicprosecution power. In reality, there isn’t a common agreement on the independent status ofthe procedure of prosecution examination; the rights of the litigants are intentionally orunintentionally ignored; the prosecutors cannot handle the cases independently withoutundue influence; there exists something improper in the process of prosecution examinationand the effect of relief is not ideal. All the problems above mean that there is a great spacefor improving the procedure of prosecution examination. The main legal regions all overthe world take the checks on public prosecution power as a fundamental goal and make theways of justifying it varied which include the preparation and procedure of exercising thepower and the relief for the decision of public prosecution. The preparation and procedureof exercising the power are involved with the process of prosecution examination and therelief for the decision of public prosecution is its relief procedure. However, it is not a goodchoice to copy the relief procedure for prosecution examination completely and theindependence of the prosecution examination procedure makes the justification of publicprosecution power through the process possible. According to the analysis of the variousproposals from the scholars and some practical reforms, the effect of the reform havingbeen promoted is unpredictable because of some reformer’s impure motives. There is littleresponse from the practical circle to the various proposals, most of which areunconstitutional or illegal and difficult to implement because they are involve with the major changes in the political system. We cannot say that these reforms are totallyirrational, but it is a question whether they have to be implemented as that which will causea great change in the judicial area. In addition, they lack further argumentation and most ofthem will only be confined to discussion, and cannot be applied into the practice, not tomention the system level. The public prosecution power in China is exercised by theprocuratorate, which has an independent process as a platform, that is, the prosecutionexamination procedure, which many judicial regions don’t have. And so, the author thinksthat the main way to make the public prosecution power justified is to make the operationof the procedure judicialized by the way of the necessary design and reform of it. That notonly complies with the constitution and the positioning of state agency, but also hasconsiderable rationality and feasibility in theory and practice.This paper is divided into six parts, and its main contents besides the introduction areas follows:The first chapter discusses the basic problem of the improvement on the procedure ofcriminal prosecution examination so as to lay the foundation for the justification of theprocess. It is divided into four sections.The first section points out that the prosecutionexamination procedure is a special process with the participation of the litigants to examineand verify the investigation conclusion and decide to prosecute or not, and it has its owncharacteristics in the subject, the object, the content, the method and the result.Examiningthe prosecution by the procuratorate and the court are different ways to justify the publicprosecution power which have close relationship, and also have difference in the stage, thecharacteristics checking the power, the aim, the subject and the object. The second sectionpoints out that the prosecution examination procedure in China is not an independentprocedure in legislation or theory, which is not consonant with its status.On the one hand ithas its independent tasks, but on the other hand the public prosecution power has judicialnature and the current procedure provides space for the operation of the power. And so, theprosecution examination procedure should be an independent procedure. The third sectionpoints out that the public prosecution power includes the power of examining theprosecution, deciding the prosecution and appearing in court. The three-party pattern in thetrial ensures its justification, but in the process of examining and deciding the prosecution,it lacks proper supervision. Therefore, the improvement of the prosecution examinationprocedure is not only a need for preventing the abusement of the power, but also a need forpower supervision, judicial justice, protection of human rights and judicial practice.The fourth section points out that the improvement of the prosecution examinationprocedure should take the litigation epistemology as scientific basis, the risk management theory as a rational foundation, the litigation purpose theory as an effient base and theprocedure justice theory is the basic guarantee for improving the whole procedure.The second chapter discusses the system and practice of the procedure of criminalprosecution examination in China. This chapter is divided into three sections. The firstsection introduces and analyzes the system of the procedure of criminal prosecutionexamination in detail, and then puts forward the defects of justification in four aspects suchas the object of examination, the way of examination, the litigants’ participation and thedisposal after examination. The second section explores practice of the procedure ofcriminal prosecution examination by the ways of questionnaire survey and discussion withthe prosecutors from15people’s procuratorates, which mainly focus on their basicknowledge of the prosecution examination procedure, the security of the litigants’ rights,the elements influencing them, intermediate procedure in the process of the examinationand the relief for the decision of the examination, and then puts forward some suggestionsfor the response from them. The third section comprehensively summarizes the lack ofjustification for he procedure of criminal prosecution examination. On the one hand theprosecution examination procedure has justified the public prosecution power to a certainextent, but there still exists some problems such as the dominance of the procuratorates, theinsufficient participation of the investigation organs, the suspect and the victim, theprocedure of restricting the power and safeguarding the rights and the opaque procedure.On the other hand, the author also attempts to explore the causes including the confusedunderstanding of the status of the procuratorates, the misunderstanding of the centralism ofjudgment, the idea of ruling by man and the conflicts between the ideas of right protectionand power service.The third chapter explores the procedure of criminal prosecution examination abroad,which presents the systems and practice of the procedures of main countries and districtsbelonged to two legal systems or a mixed one in detail to discuss common experiences andrules so as to improve the procedure in China. This chapter is divided into three sections.The first section explores the legislation and practice on the procedures of main countriesfrom two legal systems such as France, Germany, the United States and the UnitedKingdom. The second section explores the legislation and practice on the procedures ofmain countries and districts where two legal systems are mixed such as Japan, ChinaTaiwan and Russia, and introduces the practice of International Criminal Court alonebecause of its uniqueness. The third section summarizes the procedure of prosecutionexamination from three legal regions, which puts forward the experience of each legalsystem and analyzes their overall characteristics, and then puts forward the way to improve the procedure in combination with its characteristics in China.The fourth chapter explores the improvement on the procedure of criminalprosecution examination in China at the macro level, which mainly discusses some basicproblems about it. The chapter is divided into three sections. The first section points outthat the justification of the procedure of prosecution examination includes two aspects:substantive justice and procedural justice, and the former requires the procedure to bepurposive, progressive and efficient and the latter requires that the procedure will embodiesthe adjudicators’ justice, the litigants’ participation and procedural rationality.The secondsection discusses the status of the procuratorates in the procedure and points out that theprocuratorates are never pure judicial organs in legislation based on the analysis ofpositioning them in the main judicial regions, which are more like administrative agenciesand never indenpendant like the judges, even though they take the objectiveness andfairness as their common obligations. As for positioning them in China, they are legalsupervision organs legislatively and there are many kinds of views about that theoretically.The author also thinks that they are legal supervision organs in nature which have differentchoice on the way to exercising the power such as administrative way or judicial way. Inthe process of prosecution examination, they are legal supervision organs, but they can beadjudicators.The third section points out that the function of the procedure of prosecutionexamination in China is mainly reflected in the handling of the investigation and the caseand procedural autonomy which has changed in practice. It is unfavorable for the judicialefficiency and justice to emphasize too much on strengthening the investigation, enteringinto the trial and supplementing the evidence. Therefore the author suggests that theprocedure of prosecution examination is functioned as supervision on the investigation,checks on the prosecution and justification of the public prosecution power.The fifth chapter discusses the concrete construction of the procedure of criminalprosecution examination, which is divided into three sections. The first section points outthat the explorations to improve the prosecution examination procedure, such as the reviewby the judge, the social supervision and the supervision within the procuratorate, have theirdisadvantages and cannot justify the public prosecution power. The second section putsforward concrete suggestions for the improvement of the procedure on the basis ofanalyzing the director, participants, object of application of the procedure, the way ofexamination, the lawyer’s intervention and the standard of proof. The third sectiondiscusses the questioning in the process of improvement and relevant supporting measures.As for the conflict of efficiency and justice, the justification of self-investigation cases, thechange of the investigation organ’s role and the division of the stage in the prosecution examination procedure, they are not real problems. At the same time, the procuratorialneutrality, the relationship among the investigation organs, the procuratorates and courtsand the procuratorial check-up system shall be appropriately adjusted.