The Research On The System Of The Alteration Of The Public Prosecution

As one of the most important powers of public prosecution,the power of altering the public prosecution is that in a special situation the procuratorial organs reversely alter the power of prosecuting the criminal matters what is authorized by the country. It refers to the power of the rights and interests for these three aspects,charge,defense and justice,which has the significant meaning for implementing the just and efficient justice and helps greatly to maintain the justice authority.So,majority countries prescribe this power in form of law.However,in Chinese Criminal Law,no words about it can be found.Only the Supreme People's Court and the Supreme People's Procuratorate have carried out some prescriptions by the means of the justice explanation.About these prescriptions,they are not only a suspect of self-investiture to break the rule of legal formality,but also bring a series of problems in the justice practice for they are too general and rough.In this thesis,reflecting upon the existing problems on Chinese system of the alteration of the public prosecution,the author gives several simple suggestions on how to improve it and how to be scientific and reasonable in the legislation and justice.This thesis has four parts.It discusses the system of the alteration of the public prosecution from four different aspects respectively,the relationship between the power of altering the public prosecution and the power of public prosecution and the nomology basis of the alteration of the public prosecution,comparative research on the alteration of the public prosecution,the investigation of the system of the alteration of the public prosecution in our country,the improvement on the system of the alteration of the public prosecution in our country.In the first part,it summarizes the system of the alteration of the public prosecution.From the relationship between the power of altering the public prosecution and the power of public prosecution,it discusses the concept and the content of the power of altering the public prosecution.The power of altering the public prosecution is the power that the public prosecution organs can lawfully alter, super-add,and withdraw the instituted public prosecution if they find some mistakes or leak about the prosecution.As one of the basic powers of public prosecution power, its exertion can make for actualizing the worth of the power of public prosecution. The system of the alteration of the public prosecution is affirmed in the law by majority counties in the world,so it has its own theories for certain,The principle of the separation of the charge and the justice,the principle of the cheaper to prosecute and prosecutor' s impersonal obligation are the three footstone theories for this system.In the second part,it talks about the comparative research on the system of the alteration of the public prosecution.After learning the systems of the alteration of the public prosecution in different countries,such as Japanese,Italy,German,and French and so on,it is found that the entity and the procedure of this system have been prescribed in detail by these countries.Regarding the entity,in Japanese and Italy,the alteration of the public prosecution was mainly instituted by the prosecutor;however, in German and French,it is affected mainly by the judge.Regarding the procedure, there are some restriction about the instituted time,the instituted form,and the guarantee of party's rights and interests so as to avoiding the abuse of the power of altering the public prosecution.In the third part,it discusses the existing problems in the system of the alteration of the public prosecution in our country.First of all,there is no prescription about the alteration of the public prosecution issue in Chinese Criminal Law.For the justiciary need,the Supreme People's Court and the Supreme People's Procuratorate give some prescriptions by the means of the justice explanations,which is self-investiture and breaks the rule of the legal formality seriously.Moreover,the justice explanation to the related prescription is too simple and cursory,even some are unreasonable.In more specific terms,about the entity,the problems are that the power of altering the public prosecution is short of the restriction and the prescriptions for the cause of altering the public prosecution are unreasonable.About the process,some of the justice explanation is also unreasonable,for example,the instituted time is too extensive;the rights and interests of the accused and the victim are lack of guarantee; and the instituted form is not strict enough.In the fourth part,to solve the problems in the system of the alteration of the public prosecution in our country,the author gives some simple suggestions.First of all,this system should be prescribed in the law.Furthermore,for the specific design, the entity and the procedure should be considered so as to consummating the system. For the little talent and learning and the limited data,the author just do some plain researches on some basic issues about the system of the alteration of the public prosecution.About the entity,the power of the altering the public prosecution to the prosecutor should be authorized in the law and reviewed by the court.Meanwhile,the cause of altering the public prosecution should be improved.About the procedure,it can be improved in three aspects.Firstly,the instituted time should be restricted before the court of first instance has made the judgment.Secondly,it is about the guarantee of party's rights and interests.The accused should be authorized the right of application to postponed the cognizance if the alteration of the public prosecution happens.When the procuratorial organ applies for this public prosecution,the court should have a meeting for hearing of witnesses with the accused;the victim,and the one who apply for the public prosecution.At the same time,it is allowed that the accused can institute the withdrawing of indict;and the victim should be authorized the right to appeal and prosecute privately for the withdrawing the public prosecution. Thirdly,the instituted form should be enhanced.There should be a written application for public prosecution in principle.If there are some oversights or shortage,please oblige the author with your valuable comments.