Research On The Professional Prosecuting Attorney

1,General theory on the professional prosecuting attorney Under the law of prosecuting attorney, the prosecuting attorney is the special person that carries out prosecution in the name of the state. Due to the law and the nature of the prosecution, the nature of the prosecuting attorney is judicial, objectivity, independence, specialty, and synthesis. The legal status of Chinese prosecuting attorney is decided by the legal status of the prosecution organ. The authority, duty, and priority of the prosecuting attorney are as the same as the prosecution organ's. The People's Prosecution Department is looked as the state legal supervisor that is promulgated in the constitution. The article of the constitution explains the nature and the responsibility of the prosecution organ. Thus, the prosecuting attorney is the legal supervisor who is to protect the unification set up by the state and is the special person whose responsibility is to protect the unify and the right implementary of the law. The responsibility of the Chinese prosecuting attorney is to supervise the implementary of the law, to carry out public prosecution, to investigate the criminal fact that is directly accepted by itself according to the law, and others such as the legal promotion, suggestion and criminal prevention. II ,Relation between the Prosecuting Attorney and other Legal Professions A> Introduction on the occupation of judge, lawyer and jurist B, Particularity of the occupation of the prosecuting attorney First, Particularity of the prosecuting attorney compared with the judge The independence of the prosecuting attorney is relative to the independence of the judge, which is limited by the whole prosecution system and based on the measurement to guarantee the whole independence of the prosecution organ.The attitude of the prosecuting attorney with the identity of the commonweal commissary toward the criminal suspicion is negative compared to the neutrality attitude of the judge. Contrary to the relative negativity of the judge, the prosecuting attorney actively prosecutes the crime within the legal jurisdiction and performs his duty practically and realistically. Otherwise he will be responsible for the delay and neglect of his work. Second, Particularity of the prosecuting attorney compared with the lawyer The prosecuting attorney is the law-worker that serves for the country, but the lawyer is the law-worker that serves for the society, and the lawyer's operation includes not only the case, but also other legal affairs.Because the foundation of the lawyer's operation and his own interest both are based on the consignation of the party, the lawyer is required to do his best to protect the legal rights and interests of the client. However, the foundation of the prosecuting attorney's authority is not based on the consignation of the client but the society welfare. Last, Particularity of the prosecuting attorney compared with the jurist The prosecuting attorney is not only the executor of the law, but also the strict interpreter of the law. What he concerns is the positive law. However, the jurist is the researcher of the law and they concern what the law should be. The jurist can provide direction for the whole society and law-worker, which includes the prosecuting attorney .The research of the jurist is exceeding, forecasting, and reforming. However, the prosecuting attorney does little to the innovation of the law and applies the law passively. Cx Relation between Prosecuting Attorney, Judge, Lawyer, and Jurist The law nature is balance that is the result of the conflict and compromise of different interests. Nevertheless, the single law-worker could not finish the work of legal balance, which is done by the whole law-worker such as judge, the prosecuting attorney, lawyer, and jurist, etc. Contemporary rule of law requires the education mode of the law-worker be the same to make they exactly know of each other's position and operation. During the education, the prosecuting attorney could know the operation and nature of the lawyer, the possible lawyer may experience the job of judge and the standpoint of the prosecuting attorney, and the jurist can perfect their theory and eliminate their bias.All law-workers could realize their mission, strengthen their self-identity feeling, and serve for the society together. III,Compareration between the Prosecuting Attorney in the West and China The research of professionalism of the West prosecuting attorney may be the reference to Chinese prosecuting attorney system. The characteristic of the West is the shortcoming of the Chinese prosecuting attorney system. A,Strict Limitation on the Qualification of the Prosecuting Attorney Set up in the West The legal professional system set up in the West sets strict limit for the qualification of the prosecuting attorney. There are special conditions in the enrollment for the test of the qualification. The procedure of the test is strict and the form of the test is diversity. The test system is combined with other educational system. The morality and personal ability is important to the qualification test. They are characteristic in the West. However, Chinese Uniform Judicial Test is the test for the professional law-worker and there are the same problems in the professional education system. Both of them could not bring up the higher ability professional persons. B,. Higher Condition required for the Qualification of the Prosecuting Attorney in the West The west prosecuting attorney system set strict conditions for the prosecuting attorney. To gain the qualification of the prosecuting attorney in the West, one should own the higher legal professional ability, special judicial experience, and good morality. Although there are strict conditions for the qualification of the prosecuting attorney in Chinese law, there still is the ambiguity in the regulation of the college and the legal work and there is not concrete operational standard for the article of legal professional ability. C,Expanding Authority of the Prosecuting Attorney in the West The authority of the prosecuting attorney in the west is expanding. However, the jurisdiction of Chinese prosecuting attorney is different from the west. They enjoy excessively legal supervision right. D ,Minority and Perfect Prosecuting Attorney in the WestThe number of the prosecuting attorney in the west is small, but they are perfect and their organization is rational. However, there are numerous prosecuting attorneys in China. E,Perfect Ensuring Professional Mechanism for the Prosecuting Attorney in the West The ensuring mechanism for the prosecuting attorney is perfect. Most west countries have set up special ensuring system. One is the identity ensuring system, such as the firmed term of the appointment, the due process of the punishment and deposition, and the privilege ensuring system. The other is economic ensuring system, such as the salary ensuring system, the anti-reducing salary system, and the ample pension system. Nevertheless, the condition of Chinese prosecuting attorney living and working is inferior and their treatment is inferior, too. For a long time, the personal management of the prosecuting attorney in China is arranged as the administration. So there is not true identity ensuring system in China. There is lack of the firmed term of the prosecuting attorney and the punishment and deposition reason is excessively and is finished through simple process. IW Suggestion on the Professional Prosecuting Attorney in China A,Make sure the principle and valuable tendency is explicit Changing the idea is not only the process of studying, but also the process of reformation. The change could not be departed from the language background and the sticking point of the process is generalized as open, creative, and cultivation. B,Persist on the admittance system and selection system Set up the second—judicial test system, the education system before working and the grade selection system. C,Overcome shortcomings, inaugurate system and make inside harmonious and unified Set up classification management system. D,Continued Education and Training to Afford Responsibility E,Perfect the Ensuring Professional Mechanism for the Prosecuting Attorney Make the professional identity of the prosecuting attorney be owned for life. Improve the condition of the prosecuting attorney, such as the...