Research On The Restrictive Mechanism Of The Public Prosecution Power

The modern society of rule by law requires that the exertion of power of state should insist the tenet of protecting civil rights. For the sake of preventing the power's arbitrary dilation base on its instinct, and pledging the power in the very act of exertion, it is necessary that we should set up limit to the national power in order to protecting civil rights. The power of public prosecution belongs to the power of state, and in the modern criminal procedure that gives priority to the national prosecuting doctrine, the power of public prosecution is also the most basic and most important power to prosecute, so its exertion comes down to the basic constitutional civil rights. The character that the power of public prosecution is a kind of power of state, on the one hand demands that its exertion should follow the principle of public interest and insist the validity and justness, on the other hand demonstrates the power of public prosecution exists the possibility of abuse. The dialectic connection of the power requires that we should put up necessary conditions on the institutional designing. So that we can assure the exertion of the power of pubic prosecution be fine and we can prevent the arbitrary decision of the power. The theoretical foundations of restricting the power of public prosecution are the guarantee of human rights and the due process. The prosecutorial apparatus has the status of prosecuting department, so it is inevitable that the department of prosecuting has the tendency of punishing the crime and winning the lawsuit. This kind of tendency is terribly infringing on the basic civil rights of person and property and so on. From the angle of guaranteeing human rights, it is necessary to restrict the exertion of the power of public prosecution so that preventing the infringement of human rights from the abuse of power. The restriction of the power of public prosecution is also according with the request of due process. The due process requires that the criminal procedural activities of prosecutorial apparatus, including the responsibilities and the limits on the powers and its procedure, should obey the law, and the discretion should be established on the base of due process. In fact, abuse of the power of public prosecution has terrible harms, it will infringe upon civil rights, bring on the lost of judicial authority, harm judicial justness, destroy the rule by law, and the validity of the public prosecution's activities will be oppugned. In addition, the power of public prosecution has the tendency of dilation, so it is very important to restrict this power effectively. The legislation about restricting the power of public prosecution in our country seems strictly, but it is almost about the restriction of nonprosecution, and the effect is not very good. Further more, it is almost blank for restriction of prosecution and the change of public prosecution. In a word, the actual mechanism for restricting the power of public prosecution has no great function, it cannot guarantee the power effecting justness and validly. Aim at the actuality about restricting the power of public prosecution in our country, the penman brings forward two patterns to perfect the mechanism for restricting this power, these are restriction by power and restriction by rights. The restriction by power means setting up the ambit for the power of public prosecution by other power of state passing by reasonable collection of power resource. So we can prevent the power of public prosecution expanding inimitably, in other words, we can restrict the power of public prosecution by legislative power and judicial power, on the one hand, we should establish the system of change of public prosecution in the legislative form to perfect the criminal procedural law, on the other hand, we can strengthen the juridical supervision, reform the previous-court examinational procedure in order to assure initiating the public prosecution fairly. The restriction by rights means civil rights can form an enormous force to restrict national power in society of rule by law, so we can set up intact lawsuit right of parties.