Relationship Between Judicial And Procuratorial Organs In Contemporary China From The Perspective Of Modernization Of Lawsuit System

The reform of the judicial system,which was first proposed at the 15 th National Congress of the CPC,has been the focus of the work of the 16 th,17th and 18 th National Congress.Moreover,the optimization of the configuration of the judicial authority is more important than anything else.The reasons mainly lie in two aspects.Firstly,both the inadequacies of the current system and unscientific configuration of the judicial authority are protruding problems.Secondly,the configuration of the judicial authority itself results in many problems,such as miscarriages of justice,inefficiencies,the loss of authority and the loss of credibility.All of these eventually lead to the judicial doubts of the people.The optimization of the configuration of the judicial authority,which means scientific definitions of the implications and boundaries of every judicial authority,could ensure the public security,procuratorial,judicial,and judicial administrative organs to know their places and keep them.And this could also ensure the coordination,mutual check of each other and objective and efficient operation of the investigation,procuratorial,adjudicative and executive powers.This thesis investigates the relationship between judicial and procuratorial organs in our country from the view of modern lawsuit system.The Main features are as follows.What in fact is the relationship between modern judicial and procuratorial organs?Just exactly how does this form? What's the problem? What's the reason of the problem? And how can we restructure the relationship from the view of the modernization of the lawsuit system?It has been pointed out in this thesis that the current relationship between judicial and procuratorial organs,which indicates the principle of separation of functions and mutual check of each other,is well matched with the current mixed lawsuit mode of major authority orientation and minor litigant principle in our country.Through historical development of the relationship between judicial and procuratorial organs,we could find out that these two organs,which exercise the adjudicative and procuratorial power respectively,shall not be subordinate to each other,but rather completely equal and mutually independent judicial organs.Meanwhile,these two organs shall follow the basic principle of responsibility division,coordination and mutual check of each other in criminal cases.This basic principle is the basic conclusion we have reached after reviewing our long history.Therefore,both the efficiency of the agencies in litigation activities and the whole the efficiency of proceedings are enhanced In the early stages.As a result,criminal activities were severely cracked down.However,just because the efficiency,crime fighting and the truth of the cases were emphasized and obsessed exclusively,a lot of problems in the relationship between judicial and procuratorial organs emerged,such as contradictions in the configuration of the judicial authority of the procuratorial organ,superior status of the procuratorial organ,inferior counterbalance of the judicial organ,supervision arbitrariness of the procuratorial organ,compromises of the adjudicative power,incomplete separation of prosecution and trial and so on.The period of the overemphasizing of the coordination and criminal fighting has passed.Furthermore,the basic principle of coordination and mutual check of each other in criminal cases could not satisfy people's hoping for the right protection and power restraint nowadays.The significant conflicts between judicial and procuratorial organs are only surface phenomena,essentially it results from the incomplete separation of prosecution and trial.The main reason lies in two perspectives,On the one hand,traditional idea of judicature;on the other hand the judicial ways.In the sight of traditional idea of judicature,we are accustomed to the oneness of judicial and procuratorial organs as a result of the incomplete separation of prosecution and trial.Also these two completely equal and mutually independent judicial organs are only regarded as different procedures of the same nature.As a result,both the judicial and procuratorial organ could not find their correct places,let alone exert normal functions.Otherwise,our thinking was focused on the class struggle as a result of the mechanical application of the experience from the former Soviet.Under the direction of of this revolutionary idea,the judicial organs only served the class struggle.Any inflects of judicial and procuratorial organs were just for appropriate and efficient implementation of the policies.As a result,the value of equity and justice,which was taken for granted when these two organs were completely equal and mutually independent,however,was shattered.Whether these two organs were just taken as tools for class struggle,or they were taken as the same department for criminal fighting and market economic order regulating,they were all asked to chiefly cross together.This idea is so established that it has continued up to date.In the sight of judicial ways,since the founding of our People's Republic,a set of different ideas have been proposed in different periods of actual judicial practice,such as continuation of revolution legal ideology,infancy of socialist legal system thought,excess of ultra-left trend of thought and nihilism,big impact of modern judicature idea to feudalistic ideology.From these facts we could find out that more conducive road has been exploring to satisfy the justice development.During the periods of actual judicial practice,China has been switching from Complacency to reform and open policy.As a result,a fair number of good and advanced systems have been introduced.However,these systems became bad and sometimes even grew shapeless,resulting in many problems.This has been a complete puzzle.To investigate the truth,it could be found that only the western systems were introduced,but not the judicature idea which is at the root of the systems.the western judicature idea insists human rights rather than criminals.We Chinese do not have that kind of idea and never fully clear up the authority of judicial and procuratorial organs,so the power is never separated between these two organs.How to look upon the power and right is the requirement and characteristics of modern lawsuit.We are now only in the period of China's lawsuit transition from convention to modernization.Under lawsuit system modernization perspective,human right protection should be fully emphasized.All factors of the lawsuit,no matter it is the idea,culture,or purpose,should take human right protection and power restriction as the starting point.The relationship between judicial and procuratorial organs in our country should be rebuilt based on the principles,such as configuring authorities according to their characteristics,unifying the efficiency and restriction and following the rule of both judicial and lawsuit work,after a set of problems has been clearly specified,such as theoretical power restriction suitable for our national conditions,according with international norms,and value pursuance of power exercising.The power boundary of prosecution and trial would be redefined under the guidance of the new ideas.Prosecution should not be taken as only charges,but the whole power of the procuratorial organ.Furthermore,the trial does not only mean judgment,but the combination of the trial and judgment.Trial means investigation,and judgment is the assess of the judge.This is taken as the new standard according to which the relationship and power between judicial and procuratorial organs are rebuilt.Under this standard,the powers concerning the life,liberty and property of individuals should be exercised by the judicial organ,which is not only more reasonable,but come up to the requirements of the lawsuit modernization as well.In the matter of lawsuit culture,there are various limitations lying in functions,equity,time,efficiency,people satisfaction and so on.The ideology of right protection and power limitation should be strengthened.Moreover,the lawsuit purpose would be reinterpreted to seek the balance between truth ascertainment and human right protection.As a result of the fact that we're in the process of transforming from the traditional society into a modern one in China,the rebuilt relationship between judicial and procuratorial organs is still following the basic principle of responsibility division,coordination and mutual check of each other in criminal cases.However,we can find the differences in the new type of relationship of limitation primary and coordination supplementary when the powers concerning the life,liberty and property of individuals are exercised by the judicial organ.Not only is the balance between crime limitation and human right protection realized,but it typically results in the order,justice,efficiency and authority of the judicial power operation,which comes up to the required standards of scientization and legalization.Ultimately,the optimization of the configuration of the judicial authority could be realized.