On The Properties Of The Procuratorial Power - China Rule Of Law In The Process Of Observation And Consideration

The Prosecutorial power is an important part of modern constitutional system. However, the debate about its property has never stopped since it born. Should it belong to jurisdiction, executive powers or the power of legal supervisor? This article attempts to put this debate in context of the law development of China, using historical view, rational view, and reality view to explore this topic.With the French Revolution, the Prosecutorial power was born. The legislators expected this new power could balance the executive power and jurisdiction. Thus, it became the purpose of this power. However, in reality, the development of Prosecutorial Power has fallen into traps in western countries. For its property, the biggest problem is that the Prosecutorial power could not integrate into the traditional separation of powers system.The traces of history could not be effaced, especially in China. Therefore the consideration from the historical perspective is particularly important. Dictatorship has branded indelible trace in our society; it is still influencing the power structure and social context. Certainly, no matter what kind of society, the dictatorship always overshadows the development of Prosecutorial Power. The discussion in China about the Prosecutorial Power should be different from in the West. For the Prosecutorial Power, there are four opinions in China's academic circles today:"executive power", "the jurisdiction", "the double property", and "the power of legal supervision." Unfortunately, all of the supporters of each theory ignored the difference of social background. They only use the mathematic way to do social research; this kind of research maybe meaningless.The power of prosecution has two sides; the discussion about it is resultless. The Prosecutorial Power is regarded as a power which is un-completed. It is very difficult to have a clear and definite conclusion. If somebody persists in the answer, they would fall into the semantic debate. It is helpless. If we want to do some research of Prosecutorial Power, we should focus on the purposes of the Prosecutorial Power-dividing power and balancing powers. We should consider the background of our legal process. If we want to make our conclusion meaningful, we have to combine the rational view and reality view.