Comment On Objective Duty Of Public Procurator And Realization In Our Country

Objective duty of public procurator is established in Germany in 19^th century, and it is the product of Germany law which considers reality and authority as its basic principle. Because the dully reflects the pursue of the reality and justice, it spreads to the other countries quickly and our country also standards it. In practice, there are four legal principles: the first is national sovereign right theory; the second is public representative theory; the third is entity justice theory; the forth is procedure justice theory. As for china, there are also thinking theory with Chinese character: the philosophical thinking of reality , the theory of constitutional government with Chinese characteristics and the theory of harmonious socialism society. At present, there are three kinds of understandings of the objective duty of public procurator in our country, the idealism thought, system thought and the principle thought. The writer thinks that the objective duty of public procurator means the public procurator must stands on objective position to pursue the reality, collect the evidence objectively , exam the case and carry out legal actions. The duty has the characters of equality of both sides, respect the truth, the independence of the character and the background of authority.The writer thinks that the duty asks the public procurator to pursue the reality and maintenance the right of the accused person, and to achieve the implement of the law by the justice evaluation to the fact. In the collection and show of evidence aspect, the duty emphasizes that the public procurator should collect and show evidences which are guilty and innocent, and they also should collect and show the evidences which prove the felony and misdemeanor. in the process of legal action. The public procurator should pay attention to protect the entity right and the procedure right of the accused person. At the situation that the court decision disobeys the law, the public procurator need to appeal no matter it is good or bad to the accused person.As for reality, the establishment of the objective duty of the public prosecutor is not only the request of our procurator system , but also the request of our legal practice. In order to realize the objective duty of public procurator, firstly, we must renew our concept ion. and overcome the traditional conception of " country standard " and "instrument of dictatorship", and set up the conception of the objective duty of public procurator. Secondly, we need improve the law enforcing behavior, establish the procedure system of evidence collection, emphasize the obligation of showing evidence to the accused person, protect the help right of the lawyer to the defendants, set up a mechanism that can control the right of prosecution, and set up an all—round mechanism of prosecution. Thirdly, we need to perfect the supervision system, perfect the responsibility of disobey the duty and the relief approach, reform the quality checking system of the public case, improve the wrong case investigating system, built and improve the punishing system , listening and information disclosure system.