The Reform And Consummation Of Examination Prosecution Way

The examination prosecution originally should have the judicial activity nature from the lawsuit goal, but the present examination prosecution structure has appeared administration's characteristic, although has absorbed debate's-like essential factor, examination was still the folk remedy, one-sided and the secret. This examination way lacks the participation of participants and the bilateral substantive resistance of both paties, not only cannot safeguard the appeal quality, does not meet the procedure fair requirement. Therefore, to reform examination prosecution way, causeing it to conform to the judicial activity characteristic, to conform to the lawsuit structure, to conform to the procedure justly, ,is guaranteed that the appeal quality, raises the appeal efficiency, to maintain the litigant rights and interests the important way.This article besides the introduction and the conclusion, the main text altogether divides into four chapters.The first chapter mainly carries on the outline to our country present examination prosecution way. Must conduct the research to a system, its basic point is system's present situation, the system in our country's operational aspect, system's characteristic, only then holds the question the root, can act appropriately to the situation, carries on a more thorough analysis and the reform. Regarding this, The first chapter from the practice angle, discovering that our country examination prosecution way have the folk remedy, written, closeness characteristic. The folk remedy characteristic manifests thatr the examination prosecution is implements unilaterally by the public prosecutor, the victim, the suspect, the detectives are unable simultaneously to participate in which, the participants are at the discrete state in the space and time. Besides folk remedy, written, examination prosecution, regardless of from evidence gain way, the undertaker handles a case the activity, to make the process which the prosecution or does not sue, displayed closeness characteristic. These characteristics cause the examination prosecution procedure not to be able together to guarantee that the lawsuit is fair and the lawsuit efficiency, displays with difficulty filters and diverges the function.The second chapter the comparison research which by outside the lawsuit theory, the territory practices elaborates the examination prosecution should however the condition. Since our country's examination prosecution way cannot realize the lawsuit value, then the examination prosecution should adopt what kind of pattern to be able to display the proper function and to realize the proper value? If from the criminal prosecution's historical development way , the procedure draws close in the legalisation is the development tendency, if looking from various countries' reform tidal current, the procedure legalisation transformation also obtains more and more mutual recognitions. Our country must realize the lawsuit fairly, the efficiency value, must take the fairness as the guidance, establishes the reasonable legal procedure and guaranteed that the detection institution, the Procuratorial agency, the Judicial organization observe strictly, cause the criminal prosecution to make great strides forward toward the legalisation direction. But must construct the legalisation the procedure, needs to have referee's neutrality, the procedure main body participation, to control debates essential factors and so on equality, lawsuit efficiency. These essential factors cause in the examination prosecution overall to manifest the lawsuit the characteristic, conforms to the judicial activity essence. After having established the legalisation essential factors, through inspects the mainland legal system and the UK-US legal system typical country, compare with these national examination prosecution way's fit and unfit quality, the author thought that the examination prosecution should adopt the lawsuit hearing pattern. This kind of lawsuit's hearing pattern not can only prevent Procuratorial agency improper investigation, safeguards people's right entitlement, can also raise the lawsuit efficiency, prevents national the judicial waste, conforms to procedure progressive and the government by law request, therefore examines the shape which the prosecution way should have.The third chapter changes the angle of view to the home, through carries on the commentary to the existing research results to establish our country to examine the prosecution way the reform goal. Although the lawsuit hearing pattern is the shape which the prosecution should have, but lawsuit structure subjects exist many kinds of combination way. the integration of pre-trial proceedings and the introduction of pre-trial judge in examination prosecution stage manifests the combination way that the police holds the post of the prosecution, examining justice to hold the post cuts the side, the suspect to hold the post of the defense. Although this combination pattern conforms to the lawsuit structure, but the designer take the Procuratorial agency to the complaint agency, belongs to the complaint ranks, then introduces referees not only theoretically invalid, will also be exposed in the reality the huge resistance. Theoritically speaking, these design proposal function exist confusion and the misregistration to Procuratorial agency's. Looking from the reality, introduction of examining justice has not had the feasibility in our country. Therefore, the lawsuit transformation should first take to rectify Procuratorial agency's function localization as a foundation, although the Procuratorial agency simultaneously has the appeal function and the inspector general function, but these two functions are compatible, is exercising the time and the space do not have the contradiction and the conflict. What in has been clear about the Procuratorial agency after the examination prosecution stage actual execution is the referee function, through profited from some scholar's lawsuit structure theory again, the author proposed our country examined the prosecution way the reform goal, namely the structure the lawsuit pattern which by the detectives, the procuratorial personnels, the suspect tripartite was composed.The fourth chapter elaborated the concrete construction plan of our country's examine prosecution way. First, must carry on the proof to the goal feasibility, proves is with emphasis procuratorial personnels' referee status and controls debates the balanced strengthening. Although the procuratorial personnels have the different attribute in the different country, but undertakes the referee function essence is without a doubt, therefore is similar in the status to the judge. Furthermore, public prosecutor's objective and fair duty also requests the public prosecutor not to stand in litigant's standpoint, but should stand in the objective standpoint carries on the activity. These characteristics enable the public prosecutor to take on the referee in the examination prosecution stage are may establish. Trial lawyer the right magnification and substantializing enabled attorney the smoother fulfillment defense responsibility, trial lawyer the status correction have provided the platform for between the public prosecutor and attorney's benign interaction. These reality's reform and the idea renewal exercises and raises the lawsuit efficiency correctly regarding the safeguard right to sue to have the important meaning. Next, after feasible proof, the author from the fundamental rule, the particiants and the related right, the hearing way's start, the procedure movement flow, the hearing resolution, the procedure relief aspect to elaborate the more detailed construction plan for the reform and the consummation of examination and prosecution way .