On Relationship Between Investigative And Prosecutorial System And Its Reconstruction In China

The relationship between investigative and prosecutorial system has been guided by the principle of dividing responsibilities, coordinating their efforts and checking each other, as a guiding and being-guided relation, the flaws of which is becoming more and more obvious due to fundamental change in patterns of criminal procedure, especially in ways of court trials. Factors such as prosecutorial organs' comparatively weakness of control in the investigation activities, disruption of examination proceedings, and lagging of judicial philosophy and lack of evidence consciousness of investigation personnel have a pernicious effect on public prosecution.Upon studying foreign typical patterns of relationship between investigative and prosecutorial system, it is concluded that the establishment of such patterns not only needs to take account carrying forward native legal culture tradition, but also to pay attention to the internal harmony of judicial system. The patterns between investigative and prosecutorial system fall into two categories, relatively close one and relatively lose one. The former features in the initiative of exercising the right to prosecute, the higher speed of prosecutors holding case facts and evidence in addition to the higher efficiency of litigious proceedings, but it is likely to bring about clashes between investigative and prosecutorial organs, in turn, weaken the function of prosecution as a whole. In the case of the latter, investigative organs will concentrate their efforts on solving cases quickly without any interference, but cannot supervise the legitimacy and initiative of investigation effectively.Reasonable and effective relationship between investigative and prosecutorial system must be directed by scientific theory. First, such relationship shall live up to the goal of criminal procedure. For the purpose of the protection of human rights instead of putting undue emphasis on cracking down on crime, it is of very significance to strengthen investigationproceedings supervision as well as make close relationship between investigative and prosecutorial organs. Secondly, such relationship shall fit in with criminal procedure structure. China has converted litigious procedure of ex officio doctrine to one combining it with adversary proceedings, which requires prosecutorial organs to submit to court more systematical proofs. This, to a certain extent depends on the quality of investigation activities and prosecutorial organs' directions to investigative organs. Thirdly, such relationship shall suit needs of criminal judicial efficiency. Only when investigative and prosecutorial organs strengthen instruction, straighten relations, coordinate action, can they maximize the judicial efficiency of pretrial procedure.Considering aspects such as adjustment and reconstruction of the relationship between investigative and prosecutorial system, the renewal of law enforcement philosophy and the establishment of legal institutions, incrementalism and reformism would work effectively. Under present legal and mechanical framework, it is comparatively appropriate for prosecutorial organs to guide the obtainment of evidence and investigation activities. The method of guidance as an operative one is intended to set up an operating mechanism, which shall normalize prosecutorial organs' investigation activities and make it meet the requirements for criminal procedure. The crucial issue is that investigative and prosecutorial organs should reach common understanding and make clear their respective responsibilities to ensure the authoritiveness of prosecutorial organs' guidance.