A Discussion On The Relationship Between Prosecutorial Supervision And The Function Of Public Prosecution

This paper studies the relationship between prosecutorial supervision and the function of public prosecution.By examining the evolution of such relationship during various stages of development of the prosecutorial system and comparing the different relationship characteristics between the Chinese,Anglo-American and ex-Soviet Union legal systems,the study concludes that a country's power control mechanism and litigation tradition are the key determinants of such relationship,and proposes that both power control and litigation are attributes of prosecutorial power.The relationship between prosecutorial supervision and the public prosecutorial function is the fundament of prosecutorial theory.The modern prosecutorial system is adapted to the need for control of a country's judicial powers during criminal litigation.The delineation of administrative and judicial powers and the separation of prosecutorial and adjudicating functions are the two major turning points in the development of the justice system.A modern prosecution system is hence created upon such division of powers,whereby independent state agencies are responsible for criminal prosecution.The modern prosecution system is a manifestation of the control of power achieved through the division of powers within the justice system.The law,being a set of subjective,stable and predictable rules,does not only provide a general pathway for the exercise of power,but also determines the procedure and demarcates the limits during the use of power. Procedure is the basic feature in litigation,in that litigation must be carried out according to pre-determined legal procedures.Supervision and restraint of power are two methods through which power may be controlled; prosecutorial supervision is power supervision,and prosecutorial function is power containment.From a litigation perspective,the nature of the prosecution function is to seek conviction,and prosecutorial supervision is an act of litigation.Hence,prosecutorial powers have an apparent litigation nature.Although the prosecution systems of different countries vary with different historical phases,but both power control and litigation are, without doubt,attributes of prosecutorial power.Prosecutorial supervision and the function of public prosecution are connected because of their common attributes-in that they contain the elements of power-control and litigation-yet they differ,because of the differences within such elements.The socialist prosecution system of the People's Republic of China is an extension of the prosecution system in human history.The difficulties and the frequent doubts and disputes encountered along the way show, however,that its development and improvement is still underway,and the intrinsic and extrinsic factors that determine the progress of this process are evolving and changing.Prosecutorial powers being a new basic right in the country is the result of the continued deconstruction and reconstruction of basic public rights,which involves the respective separation of the power of prosecution from the original judicial powers whereby prosecution-adjudication powers are conjoint,and a segment of the supervisory and restrictive powers from the office of power-control,as well as the consolidation of such divorced powers.Hence,supervisory and restrictive prosecution powers are mutually complementary and dialectically unified.To be operative,the exercise of prosecutorial powers must meet the requirements of the inherent laws of power-control and litigation.In view of our deficient prosecution system and the demands on the prosecution system imposed by social development,two fundamental aspects to improve and development of prosecution system must be addressed:First,adhere to the basic characteristics of prosecutorial supervision,and comprehend the independent value and function of restrictive prosecutorial powers;second,transform prosecutorial supervision from incomplete to complete in litigation supervision.While the supervision and containment of other State powers by the prosecutorial powers should be stepped up,the same supervision and containment is required for the prosecutorial powers.In addition,we should facilitate greater coordination and mutual checks between the procuratorates and other State agencies during criminal action.