The Research On The Power To Administrative Supervision Of Prosecution System In China

The power to administrative supervision of prosecution system is not the main study object of traditional Administrative Law.Somes cholars believethat China Procuratorate belongs to the range of Criminal Justice.So,China Procuratorate has no power to supervise the Legality of administrative behavior which implements by Administrative organ.Actually,this idea does not notice the constitutional status of China Procuratorate.Actually,China Procuratorate system is necessary part of Socialist Constitutional System of China,which is completely different from the procuratorate system of most Western countries.The power of China prosecutorial organ is power of legal supervision In nature.From a logical point of view,the power of legal supervision should include the power of administrative supervision.Morerover,China Procuratorate has been exercised some sort of power of administrative supervision for a long time.Since the Cultural Revolution,the power of General Supervision which belongs to China Procuratorate has been canceled.But,China Procuratorate can still supervise the legality of Specific administrative behavior.For example,some administrative enforcement body often applys administrative penalty to wrongful act of human which should be sentenced to penalty In criminal law.Today,this illegal behavior is very common in China,which is simply called “yifadaixing”in Chinese.In view of this illegal behavior,China Procuratorate can urge the administrative oran to correct througe the means of prosecutorial suggestion and opionion.But,for lack of specific terms of reference,China Procuratorate does not have enough ability to control this sort of illegal behavior.The thesis is divided into seven parts,except the introduction.The first part aims to put forward the problem of yifadaixing.Today to perfect the Administrative oversight functions and powers has a solid practical basis.That is the problem of yifadaixing.In recent years,some administrative enforcement body often applys administrative penalty to wrongful act of human which should be sentenced to penalty In criminal law,which is very common in China today and called “yifadaixing”in Chinese.The substance of the problem is abuse of administrative discretion,and it has serious consequences.Many criminals thus escape legal prosecution in criminal law.And,the healthy order of administration also has been damaged.The growth and spread of this problem Should be attributed to the loophole of the existing administrative supervision system,especially to the inadequacies of specific terms of reference of prosecutorial power.The second part is about the reason analysis and Solutions for the problem of Error applies to administrative penalties in lieu of the penalty.This part mainly studies the subjective reasons,Institutional reasons and other reasons which causes the problem.And,this part will try to investigate the key solution to the problem.For a long time,China spare no efforts to establish the convergence mechanism for administrative law enforcement and criminal law enforcement,aiming to ensure that administrative cases of suspected criminal can be correctly transferred from Administrative law enforcement organs to Criminal law enforcement agencies.If so,the yifadaixing problem will be eliminated.But,until now,the convergence mechanism still has many Inadequacies,the most of which is that China Procuratorate does not have enough ability to supervise the legality of administrative act.The third part Systematically studies the Status quo of the administrative prosecutorial power of China Procuratorate.This part can be individed to Several smaller parts.Firstly,define the concepts of the administrative prosecutorial power of China Procuratorate,especially Pointing out that the difference between administrative prosecutorial power and other important public power of supervision.Secondly,do Classification study of the administrative prosecutorial power of China Procuratorate,so that the we can be clear about the scope of the impact and role of the administrative prosecutorial power.Thirdly,make a review about the historical evolution of the administrative prosecutorial power of China Procuratorate,and indicate the the unreasonable political factor that lies in the cancel of the power of General supervision.Finally,indicate the main problem that China Procuratorate does not have the power of administrative supervision.The fourth part make efforts to discuss the Legal basis for improving the administrative prosecutorial power.According to China Constitution,China Procuratorate is the state organ of legal supervision in nature.So,the the prosecutorial power should supervise the Implementation activities of Civil Law,Criminal Law,Administrative law and other law.Nowadays the scope of the administrative prosecutorial power is too narrow.This situation is Inconsistent with the constitutional status of China Procuratorate.The fifth part mainly studies the administrative prosecutorial power of extraterritorial countries and region.The prosecutorial power of common law countries belongs to administrative power.In these countries,the prosecutorial organ does have specific sort of power of administrative supervision.For example,in USA or UK,the prosecutorial organ can sue the government whose activities violate the public interest.In civil law countries,such as Germany or France,the prosecutorial organ does have more administrative prosecutorial power than common law countries.But,in Russian and other Socialist countries,the prosecutorial organ has the most broad scope of administrative prosecutorial power.An obvious sign is that the prosecutorial organ in these coutries can directly supervise the legality of administrative action.The sixth part is about exploratory work which is completed by specific local procuratorial organs for Improve the administrative procuratorial powers configuration.In view of the serious problems which are difficult to be resolved by the existing system of supervision,some local procuratorial organs begin to do explory work to supervise the legality of specific government activities.Up to now,some useful experiences and practices has been achieved,such as establishing specialized administrative prosecutors,set up special administrative attorney program.The last part studies the total Suggestions.