On The Perfection Of The Procuratorial And Supervisory System Of China

When the "ruling the country by law and establishing a socialist country ruled by law"becomes one of the fundamental national policies, the procuratorial and supervisory work has played a greater and greater role in the political life, economic development and the construction of harmonious society. However, due to the lack of the specific procuratorial and supervisory law, people have obscure knowledge of the procuratorial and supervisory work and disputes have been existing in the theoretic sector of our country. Even the procuratorial department, as the subject of procuratorial and supervisory work, has complete knowledge of its own functions, which influences the effective performance of the supervisory function. Starting from the research on the procuratorial and supervisory theoretic basis, the author makes an attempt to deal with the procuratorial and supervisory definition, status and roles, points out the main factors influencing the procuratorial and supervisory independence at present in China and the main defects existing in the procuratorial and supervisory legal system and presents the opinion of perfection of the procuratorial and supervisory legal construction in line with the existing problems. There are three parts in this paper. Part 1 is the procuratorial and supervisory definition. There are broad and narrow definitions of the procuratorial and supervisory concept. The narrow one refers to the specific legal supervisory work carried out by the people's procuratorate to prosecute crimes and correct the offences against law applicable in the law to assure the unified and correct implementation of the national law in the whole country by the use of some entitled procuratorial rights according to the regulations of law such as the investigation, public prosecution, lawsuit as well as supervision of the job crimes. The broad one refers to the supervision and inspection, restriction and punishment of the managers of the social life and all the legal activities in the social operation carried out by the people's procuratorate according to the regulations of the constitution. Viewed from the realistic situation, the narrow concept is better, which deals with the national, special, regularized, lawsuit and compulsory as well as procedural characteristics of the procuratorial and supervisory work. The author presents his own ideas on the procuratorial and supervisory content, focusing on the classification of the supervised object, mainly including the prosecution of the criminal crimes, supervision of the job crimes, placing a criminal case on file for investigation and prosecution as well as supervision, supervision of judgment and supervision of enforcement. The existing realistic basis and the roles in the power supervising system of the procuratorial and supervisory work are analyzed, with the roles focused on restricting other types of power, preventing the dissimilation of power, assuring the unified and correct implementation of law and protect the citizens'basic rights and the judicial justice. The significant value of the procuratorial and supervisory work in society of our country is illustrated, which should be insisted and continuously strengthened. Part 2 is the existing problems of the procuratorial and supervisory work, with the emphasis on the discussion of the lack of independence of the procuratorial and supervisory work and imperfection of the procuratorial and supervisory legal system. The necessity of the procuratorial and supervisory independence lies in the following. The procuratorial and supervisory independence is the basic requirement of society ruled by law. Only when the procuratorial and supervisory right is independent can it confronts the other types of national power and establishes the true supervision and restriction of the powerful ruling party power, administrative power and judgment power and asks that the power should be exercised by law to assure the unified and correct implementation of law and promote the process of ruling the country by law. The procuratorial and supervisory independence is essential to the protection of human rights. The citizens'basic human rights are the basis of all the types of social power. Only when the procuratorial work is independent can the society be developed to the one ruled by law, respecting and protecting the citizen's individual rights and the freedom and rights of the social groups and the reoccurrence of the centralization of state power and autocracy beavoided, with the social justice and fairness realized. At present, one of the important aspects of imperfection of the procuratorial and supervisory system of our country is without the external environment of the procuratorial and supervisory independence. The procuratorial and supervisory work is restricted by various external and internal factors. One is that the local committee of the Communist Party of China improperly interferes in the procuratorial and supervisory work. The second is that the personnel and expenditure are not independent, subject to the Party committee and the government. The third is that the supervision of some local people's congresses is too concrete, even influencing the disposal of individual case sometimes. The fourth is that some local committees of discipline inspection interfere in the supervising right of inspecting job crimes. The fifth is that the independent prosecutor professional protection system is not complete; therefore, it is difficult for the procuratorial and supervisory system to reach the effects it deserves. The procuratorial and supervisory legislation is lack of explicitness and the regulations of law lack the regulations on operation, which impairs the procuratorial and supervisory authority. The one is that the procuratorial and supervisory work lacks the special legislation and the procuratorial and supervisory legal regulations are scattered in the Constitution, the Organizational Law of the People's Procuratorate and the relevant lawsuit law, the definition and content of the procuratorial and supervisory work are not determined and the status and effectiveness of the procuratorial and supervisory work are not determined, which brings about inconvenience to the actual operation. Because each concrete procuratorial and supervisory system is imperfect, the supervision of placing a case for investigation and prosecution, supervision of investigation, supervision of criminal judgment, supervision of enforcement, supervision of civil judgment and supervision of administrative judgment cannot be effectively carried out. Part 3 is the thoughts on the perfection of the procuratorial and supervisory function, with the assumption made in the three aspects of strengthening the protection of the system of the procuratorial and supervisory independence and the special legislation of the procuratorial andsupervisory work as well as perfecting the concrete procuratorial and supervisory system. The aspect of strengthening the protection of the system of the procuratorial and supervisory work mainly includes the following. The first is to establish the vertical procuratorial leading system, with the emphasis on establishing the vertical management of the procuratorial department below the provincial level. The second is to perfect the management system of personnel and property of the procuratorial department and strengthen the personnel management of the inferior procuratorate by the superior procuratorate and entitle the unified financial control right and material distribution right to the procuratorial department. The third is to improve the relations between the Party and the procuratorial and supervisory work, with the Party's leadership of the procuratorial department mainly in political principles, direction and decision of important guidelines. The fourth is to improve the supervision of the procuratorial and supervisory work by the people's congress, which should be favorable to the procuratorial department carrying out the procuratorial and supervisory work independently and by law. The fifth is to standardize the relations between the committee of the discipline inspection and the procuratorial and supervisory work, without the procuratorial and supervisory work interfered. The sixth is to carry out the system of management of classification and streamline the number of prosecutors, establish a team of high-quality and professional prosecutors and assure the quality of the procuratorial and supervisory independence. The seventh is to establish the prosecutor professional protection system and punishment system. The final is to establish the independent external and internal restriction system of the procuratorial and supervisory work and assure the procuratorial and supervisory right exercised by law. For the aspect of strengthening the special legislation of the procuratorial and supervisory work, the first is to revise the Organizational Law of the People's Procuratorate and make clear the concrete functions and rights, vertical management, expense management system and professional protection system, etc. of the procuratorial and supervisory work.The second is to establish the special Procuratorial and Supervisory Law, make clear the procuratorial and supervisory definition, regulate the main body, content, approach and procedures, etc. of the procuratorial and supervisory work and provide the legal ground for standardizing and strengthening the procuratorial and supervisory work. The third is to entitle the procuratorial, supervisory and accusing right of violating the constitution to the procuratorial department and maintain the dignity of the constitution. For the aspect of perfecting the concrete procuratorial and supervisory system, the assumption is presented on the defects of legislation on the concrete procuratorial and supervisory system. The first is to perfect the procuratorial and supervisory system of placing a case on file for investigation and prosecution and entitle the supervisory right of placing a case on file for investigation and prosecution, the decision-making right and the right of suggestion of punishment. The second is to perfect the procuratorial and supervisory system of investigation and make clear the right to supervise the whole process of investigation as well as regulate the content to guide for investigation, etc.. The third is to perfect the procuratorial and supervisory system of criminal judgment, enlarge the range of supervision and strengthen the measures of realizing supervision. The fourth is to perfect the procuratorial and supervisory system of criminal punishment and increase the supervision of carrying out the change, etc.. The fifth is to perfect the procuratorial and supervisory system of civil proceedings and realize the conformity between the general rules of law and the supplementary articles. The final is to perfect the procuratorial and supervisory system of administrative lawsuit, regulate the supervisory rights and obligations and present the lawsuit of public welfare.