The Research On The Connotation Of The Independence Of Prosecutor's Power

This paper related a topic about the independence of prosecutor's power which was both canonized and disesteemed at present in China. As for the canonization, in the West, based on the preponderant speech right of statement and the fair justice desired by people, the judge's independence which is equal to righteousness as a proper proposition, thus, is regarded as an effective prescription to solve the juridical corruption, unfairness, and inefficacy. As for the devaluation, as one angle in the triangle, the prosecutor's power becomes an appendage in the background of the jurisdiction independence. The fact that the independence of prosecutor's power is leeched on to the jurisdiction independence is the potential precondition when people discuss the problem about juridical independence. The specificity of the independence of prosecutor's power is either shifted off or discarded by saying a word simply. Based on the reasons above, the author thinks we should jump out of the range of the independence of prosecutor's power in which there is some conceptive confusion due to the difference of language circumstance between the East and West. By the investigation of exertion of prosecutor's power in other countries, according to the connotation about the independence of prosecutor's power considered as the separate object we will seek the external principle for the independent function of prosecutor's power which is adequately combined with the situation of our country, and moreover, in the current system of our country, demarcate the reasonable notion of the independence of prosecutor's power once more from the value aim, core content and exertion limit.The first part of this paper was related to the value aim of independent exertion of prosecutor's power in our country. First, the cognizance for the property of prosecutor's power was the key to settle down this problem, which certainly became the core content of this part. By the comparative analysis for the sayings about the power of administration, jurisdiction, dual attributes, and lawful superintendence, this paper demonstrated the inevitability and rationality of the lawful superintendence as the property orientation of prosecutor's power in our country from four points of view: the production and development track of prosecutor's power, the setting intension of prosecutor's department, the idiographic function of prosecutor's power, and the validity of proceeding. Hence, the author deemed that the fair exertion of lawful superintendence was the principal goal for the prosecutor's power as the lawful superintendence. And through the object specificity of lawful superintendence, the theories of nation power from the decentralization to balance and of proceeding benefit, the fair exertion of lawful superintendence was consequentially guaranteed by the independence of prosecutor's power. Finally, the independent value aim of this system.The second part of the thesis expatiates on the Independence of People's prosecutor's power which is the core of Procurator's Authority Independence in four key points. The first one defines the academic basis of People's Procurators Independence from the responsibility of the People's Procurators, the characteristics of the People's Procurator profession, especially the jurisdiction of the People's Procurators'Non-prosecution Authority. The second one reveals the objective law of the operation of Procurator's Authority, which is on the basis of procurator's integration and centering on the People's Procurators Dependence by discussing the special manifestation of the People's Procurators Independence (imperfection of the People's Procurators Independence, restraint of superior injunction, collectivization of the People's Procurators, direct influence of political factor on the People's Procurators) compared to Judges Independence and the relation between the People's Procurators Independence and the rule of procurator's integration implementing inside procurator's system. In order to be used for the reference to the system construction of China, the third one summarizes the measures to ensure the People's Procurators Independence from four aspects: Resource Protection, Status Protection, Intelligence Protection and Right Protection, with the chief source of"Guidelines on the role of Prosecutor"passed in the meeting of International Law Preventing and Criminal Treatment. The fourth one points out the four institutional obstacles by comparative research on the former three points: System Obstacle - the People's Procurator administration; Institutional Obstacle - giving priority to administrative approval and collective responsibility when exercising legal supervision; Intelligence Obstacle– low quality of the People's Procurator; Legal System Obstacle– the regulations of"Organic Law of the People's Procurator of the PRC"and"Public Procurators Law of the People's Republic of China"are too fundamental to be exercised.The third part of the article mainly analysis the independently exercising procurator's power from the angle of logical positivism through two clues. Firstly, it summarizes the measures of exercising a supervisory power over the Procurator's organs extensively and then argues that the supervisory power of exercising independently also faces a problem of resisting the distrust equally. Therefore the supervisory power exercises should be restricted reasonably. Secondly, regarding the question that"who should and be able to supervise the supervisor", it argues that exercising the procurator's power in PRC always be restricted by the organ of state power and the strength of the Communist Party under the base of organizational form of political power of PRC. It points out the limitation of the restraints in procedure.Finally it summarizes that regardless what the property of the prosecutor's power is, the absolute independence impossibly exists. So supervising the procurator's power is necessary even a basic requirement for modern civilization and nations subject to the rule of law. To sum up the above arguments,exercising the legal supervisory power fairly is the core value we seek, The integration of independently exercising procurator's power and supervising is scientific connotative meanings of the constitutional government of new China. It answered the questions in the field of practice of the legal supervisory power, and the object of the thesis serves as a guide for the reform of procurator's system of China.