Research On The Prosecutorial Power From The Perspective Of Structure

The prosecutorial power being evolved midway from the prosecution system, has been caught in a trap of unceasing disputes and doubts since its formation, in allusion to the stability and generality of the judicial power. This issue is highlighted especially in, where there was no the concept and institutional design of the "prosecutorial power" until the modern prosecutorial system was introduced in the late Qing Dynasty. At the beginning of founding of the People's Republic of, the prosecutorial system and power imitated the in the design, on account of the ideological homology and establishment of state power system. With the dissolution of the, however, the prosecutorial power encountered a wide range of problems in the course of practice, intensifying the disputes from the theoretical circle to the practice circle of jurisdiction over its legitimacy, constitutional orientation and power allocation, and even affecting the law amendment directly. When it came to the holding of the 18th CPC National Congress, the prosecutorial power faced new challenges and adjustments while pushing a new round of judicial reform. How the prosecutorial power could orbit the rule of law to realize the unification of its theory and practice and hence form rather sound development, is one of the essential topics to be researched in the current prosecution system. This question evokes the selection of a research topic for the author's dissertation. In the meantime, the research categories of structuralism concerning the diachrony and synchrony, the whole and part, the signifier and signified, the present and absent, have broadened the author's research strategy and vision to a greater extent.From the perspective of diachronic structure, although the prosecutorial power did not exist in ancient in the modern sense, its authorities and functions had been duly contained in the judicature. The author, based on the brief overview of exercise of prosecutorial power and relevant results in ancient, elucidates the influence of traditional judicature, especially its power structure, on transformation of prosecutorial system in the modern times of. It could be seen from the late Qing Dynasty to the Republic of China that the modern transformation of's traditional laws had been finished tentatively in the late Qing Dynasty in terms of the legislation, and received further development and improvement in the Republic of China. Nevertheless, this transformation has not been finished yet in terms of application of law. China's traditional power-based idea, the subordinate role of judicial power in the state power structure and administration of justice subordinated to politics have rooted profoundly in the way of thinking and act of people, amid which the formation, transformation and development of the prosecutorial system in the modern times are heavily affected. As a result, it is fundamentally impossible to change the weak position of the prosecutorial power in the state and judicial power structures by constantly expanding and improving the prosecutorial legislation. Notwithstanding the above, with the advancing trend of the world and increasing awareness of right and law among Chinese people, the arbitrary power will be submitted to the rationality of law and justice of people ultimately, and the prosecutorial power will also go along with this historical trend in the future.The positioning of prosecutorial power in the state power structure is a direct determinant of its status, function, authority allocation and power operation and so forth, while the status of prosecutorial power in the state power structure is affected by such factors as the purpose of criminal procedure, value selection, political system, history and culture. By analyzing the setup of prosecutorial power in the context of different power structures between China and the West, this dissertation renders a clarification on the individuality and generality of Chinese and foreign prosecutorial rights that:under the system of "separation of three powers" in the West, the prosecutorial power is secondary to the executive power in balancing the powers, and its attribute of "supervision" is fulfilled behind the allocation of power structure and principle of power operation, thus being implicit; under the system of "unitary power" structure in China, the prosecutorial power serves as an independent state power set in parallel with the executive power and judicial power under the power of the National People's Congress. It does not attach to any kind of power and is devoted to the unique duty of legal supervision, thus being explicit. But no matter which power structure it is subordinated to, the prosecutorial power has the nature of intermediary link, procedure and value pursuit for justice. characterizes the legal supervision of prosecutorial power in its constitution, which is a just attribute to the recurrent disputes because of its difference from that in most countries.The arrangement of relationship among three parties-the prosecuting party, the defense and the judge-varies with the procedure purpose and value guidance in the criminal procedural structure. This variance further results in the different modes of the criminal procedural structure, such as the "judgment centralism" and the "divided cooperative stream-lined". The variance is also noticeable in the relationship between the prosecutorial power and police power, judicial power and right to defense under different modes of the criminal procedural structure. At's 4th Plenary Session of the 18th CPC National People's Congress, the proposal of reform towards the "judgment-centralized" procedural system arouses the disputes over the criminal procedural structure reform again. However, the concept of "judgment-centralized" is not same as that of "judgment centralism" in the theory of criminal procedure. In terms of their connotations, there is an intersection, i.e. requirement for substantiation of court hearing, and a difference, i.e. the whole restructuring of procedural system referred in the "judgment centralism" is not included in the implication of the reform towards "judgment-centralized" procedural system. Therefore, the reform initiative will not change the positioning of prosecutorial power in the criminal procedure from the root, regardless of some unavoidable adjustments and changes. To adapt to such change, the prosecutorial power must strengthen its restriction on the police power based on the existing procedural structure, and intensify its adversarial and cooperative role with the right to defense, so as to realize the best effect of right of supervision on the judgment while respecting the authority of juridical power.The prosecutorial organizational framework contains the structures of system, operation and function as well as supervision and restriction of prosecutorial power. Due to the diversified legal culture, procedural structure and power balance system, foreign prosecutorial organizational framework presents different modes, but a common rule can be found, which rests in the independence, professionalization and specialization of prosecutor, and perfect system for supervision and restriction. In, the prosecutorial organizational framework is featured by the "dual leadership system". It means that the local prosecutorial authority is responsible both to its higher authority and to the organ of state power at the same level that generates it, and reports its work to this organ. Such framework has its both positive and negative sides. Speaking of the positive side, it is conductive to operate the prosecutorial power efficiently and form an effective supervision mechanism for the prosecutorial power within the scope of power system; speaking of the negative side, it is the non-correspondence between the rights and duties of the prosecutorial power. The prosecutor acts as the direct subject to exercise the prosecutorial power but lacks its subjectivity in the organizational framework, leading to inadequate consciousness of subjectivity and responsibility among the grassroots prosecutors. In a striking contrast, the chief prosecutor and prosecutorial authority acting as the subject to own the full prosecutorial power do not have fully personal experience in the operation and practice of prosecutorial power.It comes to the final part of conclusion and suggestions in this dissertation. Based on the analysis of prosecutorial power from different structural perspectives, the author put forwards some suggestions for the future improvement of prosecutorial power from four aspects. Firstly, a guiding concept to perfect the structure of prosecutorial power should be generated in light of the diachrony and synchrony of prosecutorial power. On one hand, the historical tradition and realistic conditions of the country should be taken into account to establish a structure of prosecutorial power with Chinese characteristics; on the other hand, the established structure has to conform to the basic purpose of legal modernization, especially those basic principles and systems in the foreign prosecutorial system that have been gone through full argumentation in theory and proved effective in practice. At the same time, the hindrance and impetus of reform should be evaluated in the course of improving the prosecutorial power structure. Secondly, the attribute of "prosecutorial supervision" of the prosecutorial power should be defined. The clarification on the issues about relationship between the prosecutorial power and juridical power is a context premise to define the attribute of prosecutorial power. As a concept of history and modifiability, the juridical power in the context of the "separation of three powers" in the West does not correspond to that in the context of the "combination of legislative and executive powers" in China. For this reason, it is not a must to make an alternative choice from either the executive power or the juridical power regarding the nature of prosecutorial power. It is also not necessary to and should not explore the affiliation of prosecutorial power under the power structure of "separation of three powers", or deem the prosecutorial power as a combination of "executive power" and "juridical power". It is not important whether the prosecutorial power is the juridical power in the theoretical sense, as long as it has its unique attribute and feature-legal supervision. Of course, there may be disputes in theory and practice when the word "legal supervision" is used to describe the positioning of prosecutorial power in the constitution, as a result of extensive and connotative diversification of the word. At this point, the author considers it more appropriate to use the "prosecutorial supervision" instead of the "legal supervision". Thirdly, the positioning of prosecutorial power in the criminal procedural structure should be balanced in a rational manner. To this end, it is suggested to build a prosecutor-police relationship with functions of prosecutorial work, supervision and investigation, to build a prosecutor-defense relationship that unifies the adversary and cooperation, and to build an equal prosecutor-judge relationship. Fourthly, a prosecutorial organizational framework that promotes the operation of prosecutorial power fairly and efficiently should be set up. To this end, it is suggested to push forward the reform of prosecutor responsibility system that unifies the responsibility, power and authority, optimize the allocation of functions and authorities ofprosecutorial power and balance the prosecutorial power in respect of its independence and governance.