Theoretical Analysis And Empirical Study On The Operation Of The Public Prosecutor's Right To Protest Against Judicial Judgments

The right of the public prosecutor's right to protest against judicial judgments,refers to a public power that requires the court to correct the wrong procedure when the procuratorial organ discovers the court's judgment and ruling are wrong in the criminal proceedings.As the constitutional status of the procuratorial organs of our country is the legal supervision organ,the right of the criminal protest is implied the "contend with" the court's jurisdiction in the words,then the actual effect of the right to criminal protest is much attention.Although the Supreme People's Procuratorate has introduced several provisions on criminal protest several times,hoping to strengthen the trial supervision and enhance the effectiveness of the protest,but the empirical study on criminal protest has repeatedly shown that "less","low quality" and "imbalance" is the real state,and even some scholars through data analysis,state that the criminal protest "neither objective nor neutral." In the face of such a background,through the empirical study to grasp the real situation of criminal protest cases,to analysis the constraints of the criminal protest in the practice,put forward to improve the rationalization of criminal protest,is urgent and necessary.This article includes the introduction and five chapters,about 160 thousand words.The introduction part examines the institutional changes and the viewpoints of the criminal protest,reviews and summarizes the existing literature and academic achievements of the criminal protest,discusses the significance of the topic,points out the innovation of the article.The first chapter is the basic theory research,divided into three sections.The first section analyzes the system of criminal protest and the characteristics of the system.For the remedy of the erroneous criminal referee,all countries in the world give the prosecutor's right to appeal.From the view of the comparative law,the prosecution's criminal right of appeal in the world has the following institutional characteristics: the nature is the right of action,the exercise closely attached to the court trial system,the appeal object is more extensive,the system content adapt to the national legal culture and judicial ideas.In contrast,the right of the public prosecutor's right to protest against judicial judgments in our courtry,in the nature is the right of legal supervision rather than the right of action,the protest object is limited to the court's final referee,the purpose of the protest is to correct the error,second trial protestand retrial protest make strong homogeneity,criminal protest in theory have the "unlimited protest" features.Section II analyzes the function of criminal protest.As the right of criminal protest is external supervision rather than litigation relief,so the right to sue in the litigation and litigation outside the two functions: in the proceedings,can start the trial process,to submit the issue of controversy,to promote the court error correction;the other functions is: it has the functions of connecting the trial supervision system,propagating the national criminal policy and responding to the social concern.The third section discusses the value of criminal protest.According to the constitutional orientation of the procuratorial organs and the characteristics of the criminal protest,objective justice should be the pursuit of the value of criminal protest,especially is focusing on the legal bottom line,focusing on the protection of human rights and respecting the authority of the referee.The second chapter analyzes the running environment of criminal protest.This chapter draws on the concept of "big system" of sociology,introduces the organization theory and delivery system,and analyzes the running environment of the criminal protest right from three aspects: the institutional environment,the organizational environment and the delivery system.The specific content is divided into four sections.The first section uses the case to analyze the institutional environment of restraining the right of protest.The process of criminal protest is restricted by three kinds of environmental factors such as mandatory norm,guiding norm and cognitive framework.Due to the unclear and uncoordinatedness of the three kinds of restraint forces,the compulsory function of the legal system of protest is weakened and the guiding norms is fictitious,cognitive framework becomes a means.Section II analyzes the organizational environment in which the right of protest is restrained.In the internal environment of the organization,the operation of the criminal protest is easy to be affected at both the vertical and horizontal levels,because of the difference in the ability of ownership and use among the members.In the inter-organizational environment,both the courts and the procuratorial organs are in favor of each other "Legal damage rights",the game predicament easily lead to cooperation,criminal protest power to become "weight." The third section analyzes the transfer system of criminal right of protest.The transfer system of the right of protest includes uniform badges,signs and clerks.Because of the strong characteristics of the official documents of the judicial documents and the inability to play with the characteristics of cultural language,the transmission effect is poor.The fourth section analyzes the general characteristics of the operating environment.It is pointed out that the three environmentalfactors,such as institutional environment,organizational environment and delivery system,have different characteristics in restraint mechanism,constraint effect and stability characteristics.The third chapter is the empirical investigation of the operation of criminal protest,divided into three sections.This paper collects the data of the protest from 1986 to 2015,and all the referee instruments of the main national criminal cases in 2014,and carried out in-depth and concrete investigation on the operation of the right of protest from the vertical and horizontal aspects.The first section examines the starting characteristics of the protest.The number of protesters gradually increased but the total amount is not wide,the focus is extensive but concentrated on the common multiple charges,the second trial protest far over retrial,repeatedly launched the protest,free to start retrial protest and so on.Section II examines the characteristics of the protest.The reasons for the protest show that the majority is not conducive to the defendant,emphasis on the entity,the physical protest covers all aspects of criminal law,procedural protest focus on evidence against the protest,the law applies to the protest is very prominent features.Section III examines the effect of the operation of the protest.The empirical data show that the success rate of the protest has fluctuated over the years,but the mean is above the grid line.The success rate of the protest is higher than the success rate of the appeal.The success rate of the retrial is higher than the success rate of the second instance,The effect is based on the difference between the different standards and other characteristics,in particular,the court of the rate of recognition is far more than the direct rate of change,showing that "real mistakes" in the judicial practice does not mean " Change the referee”.The fourth chapter discusses the operation environment of the criminal protest operation have the plastic effect,divided into three sections.The first section discusses the changes in the operating environment will affect the changes the right to criminal protest.From the two aspects of the institutional environment and the organizational environment,through the analysis of changes in laws and changes in the organizational environment,discusses the changes in the environment determines the performance of criminal protest changes in the performance.The second section discusses the influence of the relative stability of the operating environment on the performance of the criminal protest.In the case of maintaining the basic stability of the operating environment,the right of criminal protest in a long time,within a specific geographical scope,showing the stability rate of start,start thecharacteristics of stability,protest effect and other salient features.The third section analyzes the injustice of the system of environmental defects leading to criminal protest.This article analyzes the shortcomings of the protest system itself and the negative influence of the evaluation mechanism in the operation mechanism.It points out that there is a lack of restriction on the illegal procedure,The lack of restraint in the retrial of the protest,the lack of protection of the rights of the victims,the lack of special protest channels and other defects;evaluation mechanism exists weakening the legal effect led to selective law enforcement,distort the relationship between the upper and lower court led to trial function null,the right to protest is circumvented and so on.Chapter 5 is the conclusion and recommendations.In the conclusion part,the article analyzes the feasibility of the criminal protest from the view that the criminal protest is not objective and unfair,and makes use of the empirical data of three cases of retrial and retrial.The right to criminal protest under the constraints of many environmental factors,the number to achieve a gradual increase,the effect to achieve or exceed the "passing",to restrict the discretion of the court,to promote our country Judicial justice,made a positive contribution,in general,consistent with the objective and impartial pursuit of value.However,for the right to protest in the local injustice,should take measures to be resolved.To improve the operating environment of criminal right of protest in our country,we should abandon the technical thinking,and make comprehensive suggestions on the basis of rationally understanding the system function of the right of protest,respecting the environmental binding force,respecting the subjective initiative of judicial personnel and respecting the principle of judicial bottom line.In accordance with the above ideas,the article finally from the improvement of the institutional environment,straighten out the organizational environment,strengthen the delivery system,give out the specific countermeasures and suggestions.