On The Correction Of The Right Of The Procuratorial Organs Of Legal Supervision And Remodeling

The power of legal supervision has been always focused by the academe. Should the procuratorate be granted this power? If there is negative impact on the litigation procedure? What power should the procuratorate have? There is great argument in the academe. This thesis try to focus on and solve these problems by the study of the prosecution power which is the most important and definite power of the procuratorate. Through the study we can come to the conclusion that the legal supervison power is the core of the prosecution power,and the prosecution power is the carrier of the legal supervison power. Thus the legal supervison power can not be abolished as long as we admit that the prosecution power is essential for the procuratorate. So the power of the procuratorate must be reviewed to make sure the procuratorate can undertake the task of legal supervison. This thesis has there parts.In the chapter 1 the academic controversy has been summed up to two parts, called negativism and affirmtivism. The former pointed out that the procurtorate should be nothing but one prosecution organ, the power of the legal supervision should be enjoyed by the legislator. However the affimimtivism argued that the power of the legal supervision must be enjoyed by the procuratorate ,if this power be canceled the balance of the constitution may be broken. In fact they neither probed into the essence of the legal supervision and prosecution power. To sum up ,it is a new way to solve this problem by the analysis of the prosecution power.Then the chapter 2 has made thorough study on the prosecution power. This part firstly concluded that the core of the LieNing legal supervision theory is to guard the legal system. Then through the study of the headspring of the penalty ,we can concluded that the penal law is the "backup force" for other laws. And the prosecution has been setted to make sure the function of the penal law can be achieved. So ,the prosecution is the important way to guard the law system. The procuratorate is essentially a legal supervision organ. The prescription in the constitution is correct and properly, the power of the legal supervision can not be canceled. However ,the legal supervision power of the procuratorate has been misread in the practice. We need to review the power of the procuratorate and shape a new power structure for the procuratorate.Chapter 3 has reviewed the power of the procuratorate and try to construct a new power structure for the legal supervision. This structure has been called "one main body with two wings". "One body" is the prosecution power ,and "two wings" are the preparative power such as the investigative power and extended power such as the supervision power of the penal administration. The character of the legal supervision is centralized on the "main body ",namely the prosecution power, not on the "two wings". They just serve and prepare for the prosecution power, they do not reflect the character of legal supervision independently.Through the analysis,we can come to the conclusion that the legal supervision power is inherent for procuratorate. This power can not be abolished. But this power must be reformed and defined to shape a new legal supervision power structure. So the procuratorate can be worth the name of legal supervision.