| We have clear definitions,theorecticaUy and practically, about gov-ernment's administrative power and court's judicial power in our state power system, but have no consensus on the nature of prosecutorial pow-er. How to posit the nature of prosecutorial power is of importance to the theory of prosecutorial work.Based on the position,the systematic study on the effective implementation of prosecutorial power will put positive influence on the reform of prosecutorial system, and do good to allowing full play to the overall function of the all state power system.As a functional power, prosecutorial power evolutes with the establishment and development of procuratorial organization. From the worldwide view, procuratorial organization has three phases: previous phase -king agent,public prosecution and modem procuratorial organiz ation. O-riginally,our procuratorate system is in clined to borrow from Japan. After the foundation of P. R. C,we built on the made of former sovet U-nion,and Under the direction of lenin s theory on legal supervision,and after the modern procuratorial organizations were established, their set-tings appear different.What is prosecutorial power? Most scholars have only literal expla-nation. The author has a deeper thinking. Rigidly, prosecutorial power is an enforcement power of state power. It came out independently as the enforcement power of state power decomposed and the constitution en-powered it. As each state power system has its own way of establishing them, prosecutorial organizations have different powers. Besides, as an enforcement power, prosecutorial power has its own development ruleand together with the interaction ,-md borrowing among each legal sys-tem, its contents have some common tendency. Generally speaking, pros-ecutorial power covers these contacts: public prosecution including crimi-nal, civil administrative prosecution; prosecution supervision power; con-stitutional supervision power.There are four viewpoints about the position of the nature of prose-cutorial power: Of Administrative power, Of Judicial power of Double Nature and Of Legal Supervision power. Argument was held from the angle of "as it is "and"as it ought to be"by the acdemic circle. The author thinks that of Administrative power and of Judicial power are based on seperation of powers. But in China,on one side,from the carrier of pow-er, namely, law's operating procedure and phases,on the other,from the establishment of state power system, state power should be divided into legislation power, administrative power, judicial power and law supervi-sion power. Law supervision power is implemented by procuratorial orga-nization as a special state power. So, our prosecutorial power should be posited as a law supervision power. This essay explained from the aspects of history of prosecutorial power ,the development rule of state power, our present political system,the objective of establishing our procuratorial organization, the main contents of prosecutorial power and the stability of the constitution.Prosecutorial power's effective implementation lies in three aspects: priciples are directions; subjects arc key and systems are assurance. We should observe the principle of independance, fairness, openness, public interests and relying on people while exercising the prosecutorial power. The substantive subjects of exercising the prosecutorial power are state and procurectorial organization, the formal subject is prosecutor. The procuratorial organization's position determins its direction,and prosec-tors' position and quality will directly determine whether it can exercise effectively and fairly. So,we must assure the procuratorial organizations' constitutional position and presecutors' independant position. Presently, we have established some systems good for procuralorial organizations' supervision functions, but there are still some disadvantages, such as fi-nance dependence; weak prosecution supervision; imperfect leadership system. Therefore, to establish and perfect guarrantee... |
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