The Prosecution The Right To Restrict The Mechanism

The emergence of public prosecution power is the performance of legal system's civilization and progress. The public prosecution power is the kind of national powers. It is the symbol that national public powers get involved in litigation. It is the outcome of seperation between indictment and justice. As the main performance subject for public prosecution power—procuratorates, the correct exercise of public prosecution power is not only its legal authority, also its responsibility. Along with the development of discretionary prosecution, the various countries in the world generally entrust procuratorates with discretionary powers to particular cases between prosecution and nonprosecution. In view of the facts that powers have compulsive attribute, expansive attribute and diverse means, once the exercise of powers lose restriction, it will result in the loss, which can't make up, to the benefits of nation, society and parties concerned. The public prosecution power is no exception. The national powers' attribute of public prosecution power comes to a decision that the operation of public prosecution power must be subjected to restriction from the other powers' (rights') subjects. Otherwise, the public prosecution power very possibly transmutes procuratorates' arbitrary authority, becoming hotbed which multiplies corruption, also very possibly disassimilating the tool that county prosecutes crime purly, losing the quality and the function that it should have. How to regulate the operation of public prosecution power is the important contents of public prosecution system, accordingly constructing a reasonable restriction mechanism has a vital significance to guarantee the positive operation of public prosecution power, maintain the fair judicature and realize the unification of crime control and human rights protection.Nowadays, main countries of two greatest legal systems in the world further perfect supervisory and restrictive mechanism in procuratorates' interior, in the meantime, all paying attention to strengthenning the outside supervisory and restrictive mechanism to operation of public prosecution power, establishing the court's judicial examination mechanism in succession, namely, through the restriction of court's jurisdiction towards the exercise of procuratorates' public prosecution power, for the purpose of preventing from the abuse of public prosecution power, guaranting the nature of openness, rationality and science to the operation of public prosecution power effectively. As a result of the differences of various countries' legal tradition, lawsuit pattern and value orientation, the restrictive mechanism of public prosecution power in various countries have special features. Countries in Common law system respect freedom comparatively, emphasizing due process and haman rights protection, establishing more restriction to the active exercise of procuratorates' public prosecution instead of barely restriction to nonprosecution. Countries in Civil law system pay attention to security comparatively, emphasizing the detection of objective truth and crime control, not only establishing judicial examination mechanism to the initiation of public prosecution but also instituting comparatively comprehensive and complete restrictive mechanism to nonprosecution.In comparison, the system design of public prosecution power in our country exists many unreasonable or imperfect place. It mainly manifests in following several aspects: the initiation of procuratorates' public prosecution is almost free from judicatory control; existent pre-trial investigation process to public prosecution don't perform functions as follows, repressing inappropriate prosecution, protecting defendants' legal rights, promoting the efficiency of trial; with regard to procuratorates' alteration of publice prosecution power, there exists no explicit provisions in current criminal procedural law, which leads to procuratorates' arbitrary exercise about the alteration of public prosecution power; the process of procuratorates' decision about nonprosecution have one-sided, secret characteristics; the system design of transformation from public prosecution to private prosecution is unreasonable; there is deficiency of supervision towards nonpresecution of procuratorates' self-investigation cases and so on.Legislative and judicial practice about restrictive mechanism of public prosecution power in western country may provide the beneficial experiences for the establishment and perfection of our country's correlate system. In view of current situation and existent problems about restrictive mechanism of public prosecution power in our country, I think it need to be reformed and perfected from following several aspects: establishing the preliminary examination procedure, which contribute to repressing inappropriate public prosecution truly, instead of original pre-trial investigation process to public prosecution; perfecting the legislative regulations about the alteration of public prosecution to guarantee the defandant's rights of lawsuit including the right of procedure's participation; building up hearing system of nonprosecution to make the decision process of nonprosecution more fair and transparent; cancelling the system of transformation from public prosecution to private prosecution to entrust victims with the right of asking for judicial examination; further perfecting the system of people's supervisors to strengthen the supervision to nonprosecution of procuratorates' self-investigation cases practically.