On Restriction Of The Power Of Public Prosecution

The power of public prosecution is the powerization of the litigious right in the field of criminal process. It includes the power to or not to bring an action and the power to appeal (in our country it's called "the power to counterappeal). The restriction of the power of public prosecution refers to the activities, including restricting,balancing and supervising over the abnormal way of carrying out the power and the general term of the systems that come into being through these activities. The necessity of the restriction lies in four aspects: the expansion trend of power, safeguarding human rights, cutting down the cost of crime control and the current wants from the operation of the power of public prosecution. The value of the restriction is to achieve the three values of public prosecution in criminal process, which are substantive justice, procedural justice and the beneficial results of suits. Both the Anglo-American law system and the Continental law system pay great attention to the restriction of the power of public prosecution, but the focus and ways are quite different due to their different traditions, different systems and different values. In terms of china's current restriction system of the power of public prosecution, it is quite good. But many problems still remain: the incomplete legislative rules of the defendant's restriction right, the difficulties in fully realization of the victim's restriction right, the disadvantage of the procuratorial organ's inner restriction, the malpractices of the victim's self-relieving system, the weakness of the restriction power in the procedure of examining the public prosecution and the weakness of the supervision in cases investigated by procuratorial organ itself. In order to perfect the restriction system of the power of public prosecution, we should follow the principle of rule by law, the principle of moderate degree, the principle of participation, the principle of open procedures and the principle of equation. Specifically, the author's propositions include: making the prosecution activities opener and more democratic, clarifying the principle of "unitary system of procurator", improving the aferhand restriction of nonprosecution, strengthening the judicial control over the power of public prosecution, normalizing the operation of the power of counterappeal.