On Optimizing The Operation Mechanism Of Public Prosecution Power Under The Background Of "Trial-Centered Litigation System Reform"

In recent years,the judicial system has tried to promote the "trial-centered litigation system" reform(hereinafter referred to as the "trial-center" reform),but the effect is not obvious.The procuratorial organ,as the only state organ that can fully cover the first instance procedure of criminal proceedings,and the public prosecution power,as a state power with a certain attribute of judicial power,can not only weaken the "investigation centrism" through daily intervention,but also promote the "substantiation of court trial" by actively performing the function of procuratorial accusation and the burden of proof,can provide assistance for the reform of the "trial-center" reform.From the perspective of "trial-center" reform,this thesis discusses how to optimize the operation mechanism of public prosecution power.In addition to the introduction,the full text consists of five chapters.The first chapter summarizes the basic theory of "trial-center" reform and "operation mechanism of public prosecution power"."Trial center" means that all activities of criminal procedure should focus on,face and serve the requirements of trial activities and fair trial.For this,it is necessary to exclude pre-judgment,implement the principle of evidence judgment,realize effective confrontation between prosecution and defense,achieve Oral hearings,and filter out cases that should not and need to be handed over to trial in the pre-trial procedure.At present,there is a gap between the domestic operation mechanism of public prosecution power and the needs of the reform of "trial-center",which should be optimized and improved.The reform of "Leniency system for pleading guilty and accepting punishment" has a great impact on the operation of the public prosecution power,but its current basic positioning and system design are difficult to play the effect of promoting the reform of "trial-center" reform.Since the improvement of the system and related issues involve another topic,it is not included in the scope of this thesis.The second chapter introduces how to better operate the power of public prosecution in order to realize "Pre-litigation leading".In order to let the public prosecution power to guide investigation and evidence collection,the procuratorial organs have made some exploration and adopted two modes of "sending personnel to participate in the intervention temporarily" and "long-term resident intervention",which have achieved certain results and have their own advantages and disadvantages.However,there are many problems in practice,which are mainly reflected in the embarrassing working situation,weakened supervision and restriction and virtual case guidance,which affect the effectiveness of early intervention in guiding investigation and evidence collection.The main reasons are the modest attitude of the procuratorial system,the detached state of front-line personnel,the ability of the procuratorial team and the complex mentality of the public security system,which lead to the obstruction of the operation of the public prosecution power.In addition,there are still many specific problems that the procuratorial organs improperly exercise the power of "return for supplementary investigation" and the public security organs passively deal with the work of "return for supplementary investigation",and these stubborn diseases have deep-seated reasons for the operation of power under realistic conditions.The procuratorial organs have taken some measures,such as strengthening internal control by administrative means,perfecting and supplementing the investigation system with normative documents,and transmitting pressure to the public security organs with daily work mechanism.However,there are still old problems that are difficult to resolve,and at the same time,they have brought some new troubles.The "self-supplementary investigation by public prosecution" is of special significance to the realization of "trial-center",procuratorial organs have taken many exploratory measures at different levels and achieved some case effectiveness.However,it is difficult to change the basic situation because of the fundamental defects of system setting,the serious shortage of human energy,the obvious lack of capacity conditions and the potential risks of power operation.In order to further strengthen the "leading investigation before prosecution",we should improve the status of the procuratorial organ and its public prosecution discourse authority,improve the "intervention and guidance" mechanism of the public prosecution power in the investigation stage,improve the supplementary investigation system dominated by the public prosecution power,grasp or as a turning variable,take measures to take advantage of the situation,activate the "self-supplementary investigation of public prosecution" with a rigid system,and promote the "retreat and self integration" of supplementary investigation with the concept of integration,so as to comprehensively improve the quality and efficiency of "public prosecution leading investigation and evidence collection".The third chapter discusses how to give better play to the "pre-trial filtering" function of the operation of public prosecution power.The traditional theory of non prosecution "rule of thirds" in China has far-reaching influence,but there are defects.Those with discretionary nature are not limited to the type of "non prosecution of minor crimes" under the "rule of thirds" theory.There is also room for the exercise of the discretion of prosecution(non prosecution)under the "legal non prosecution" and "non prosecution of suspected crimes".The problem of "pre-trial filtering" of public prosecution power should be discussed from the perspective of "broad discretionary non prosecution".Among the cases of examination and prosecution accepted by the procuratorate,"non prosecution for suspected crimes" accounts for about 1%.In addition,a large number of cases "returned to the public security organ for processing" belong to the hidden "non prosecution for suspected crimes".Among the cases prosecuted by the procuratorate,"innocent judgment" accounts for about 0.05%.In addition,many cases of "withdrawal of prosecution" by the procuratorate belong to implicit "innocence after prosecution".The main circumstances leading to "innocence after prosecution" are that the court considers that the evidence of the case is insufficient,the facts of the constitutive elements of the crime cannot be determined,the court is inconsistent with the procuratorate on the application of the law and even the nature of the defendant’s behavior,and the emergence of new circumstances leads the court to believe that the defendant should not or is not necessary to be investigated for criminal responsibility.The main problem of the Procuratorate’s examination of cases is the excessive trust in counterpart confessions,the review and verification of evidence information is not in place,and there is a tendency of "heavy blow" and "mechanical justice" when grasping the evidence rules and determining the nature of behavior.Those promblems are mainly caused by the inertia of the inherent thinking of public prosecution in handling cases,the shackles of sitting and marking papers,the dilemma of fact finding,the failure of discussion system,and the influence of factors outside the case.We need to try to introduce new working thinking,change the "dross" case handling practice,establish a professional case discussion organization,and build a "innocent after prosecution" case database to prevent false prosecution.The non prosecution cases of the procuratorate are mainly "non prosecution of minor crimes",which has increased substantially since 2017,mainly due to the "non prosecution of minor crimes" for a large number of "drunk driving" cases,but the applicable proportion of other cases is still low.The main reason is that the annoying cumbersome procedures and daunting case handling responsibilities make the public prosecutor resist.This situation is difficult to change,because the procuratorial system believes that the public prosecution power of "non prosecution of minor crimes" should be strictly supervised and controlled,while the effectiveness of external supervision means fails,so it can only turn to internal control measures,resulting in cumbersome examination and approval procedures.In the future,we need to appropriately improve the application rate of "non prosecution of minor crimes".Therefore,we should clarify the application standards,improve the case handling mechanism,optimize the case handling management mechanism,and make appropriate adjustments to the ideas of case quality evaluation.The fourth chapter discusses how to optimize the function of public prosecution in court.To promote the realization of "court trial substantiation",public prosecutors need to make a good statement of court trial prosecution,get rid of the high dependence on investigation files and materials,and fulfill the burden of proof in court.At the same time,it is also necessary to give full play to the role of pre-trial preparatory procedure services to ensure the trial,create an environment for the effective exercise of the right to defense,and give sufficient respect to the reasonable operation of the judicial power.In practice,there is a phenomenon of formalization of court trial prosecution statements.The prosecutors in court avoid confrontation and stress the conclusion according to the book,lack of reasoning,and the prosecution statements meaningless,resulting in the formalization of prosecution defense confrontation.The main reasons are the indulgence of the current system,the lack of pressure transmission,the deviation of quality and ability training,and the hidden truth of individual cases.In the current criminal trial,the prosecution witnesses rarely appear in court,the original material evidence rarely goes to court,the way of proof is arbitrary,and the case records are difficult to give up,which all affect the substantive degree of the trial,and behind it,there is a realistic dilemma of the operation of the public prosecution power.In the next step,we should take a pragmatic attitude and use "technical" measures to promote the performance of court trial prosecution,so as to promote the reform of "court trial substantiation".Courts and judges should make good use of their jurisdiction and court trial command,and put pressure on the prosecution in the judgment results and court trial process;The procuratorate shall strengthen the management of prosecution performance,including making review reports based on the needs of prosecution,strengthening the supervision of prosecution and improving the training methods of quality and ability;At the level of system construction,we should focus on strengthening the judge’s court command,implement measures to loosen the problem of witness not appearing in court,and promote the transfer and inspection of physical evidence.The fifth chapter discusses how to use the supporting mechanism to ensure the good operation of the public prosecution power.The "trial-center" requires more manpower and energy in the operation of the public prosecution power,but there has been the problem of "more cases and fewer people" in the public prosecution work for many years.The growth of the number of public prosecutors can not keep up with the growth of the number of public prosecution cases,and the actual workload of public prosecutors has exceeded the threshold.In addition,the task of public prosecution itself is also a burden,including constantly updated litigation responsibilities,endless internal requirements and more and more comprehensive work.The procuratorial organs are facing practical shackles,mainly due to the limited of political and legal preparation,the imbalance of manpower distribution within the system,the attractiveness of public prosecution posts has decreased and the decrease in front-line personnel handling cases.The procuratorial organ has taken some measures,but the effect is limited.Therefore,the central office needs to add to the procuratorial system,the procuratorial organ shall allocate additional personnel to the public prosecution department,and the public prosecution department shall reduce unnecessary workloads.Optimizing the public prosecution case handling responsibility system will help to promote the better operation of the public prosecution power and promote the realization of the "trial-center".However,at present,it is faced with insurmountable practical problems,mainly that it is difficult to achieve "real decentralization",it is difficult to eliminate "nominal case handling",it is difficult to omit "intermediate links" and it is difficult to let go of "management control".Therefore,we need to choose the development path of "undertaking responsibility system",and the top officials of the procuratorial system must also make up their minds to delegate power to prosecutors and take more binding measures.Public prosecution performance appraisal can affect the trend of the exercise of public prosecution power to a great extent,but it also has its limitations.It can only aim at the most important problems that need to be controlled,can only intervene in matters that are easy to quantify and evaluate,and has to devote part of its attention to comprehensive work tasks.In practice,there are some problems in the public prosecution performance appraisal,such as simple impulse in the evaluation of public prosecution work results,excessive pressure on the task setting of public prosecution lines,alienation in the exercise of power of public prosecution departments,improper shift of the focus of work of procuratorial organs,and facing a dilemma,mainly that "examination or not" can’t stop,"rough examination and fine examination" are unscientific,"quantitative and qualitative" can’t do anything,"Comprehensive tasks" cannot be abandoned.In this regard,it is necessary to correct the understanding of public prosecution performance appraisal,face up to the appraisal cost,do not rely too much on the management means of performance appraisal,and do not blindly pursue the comprehensive and detailed appraisal content,do not strictly set the evaluation threshold of appraisal indicators,but give play to the substitution role of data analysis and notification,and improve the project indicators of appraisal,so as to give play to the benign role of appraisal.