Studies On Power Distribution And Relationship Of Executive Power And Prosecutorial Power In Our Country

In the regulation mechanism of the law in our country, the procuratorial power does not only involve supervising the legality of the litigation action during the criminal proceeding, but also involves supervising the legality of the litigation action during the civil and executive proceedings. What's more, the procuratorial power supervises both the law enforcement and the observance of the law. Therefore, the supervision of law is the reflection of the power of the procuratorial organs, and all the contents of the procuratorial power. In other sense, the procuratorial power can be regarded as the power of the supervision of law. To explore the relationship between the executive power and the procuratorial power clearly, we should start from the consideration on how to allocate the executive power and the procuratorial power in our constitutional system, base on the position and role of the power during the ruling of law and the state responsibility of the power during the exertion. Build the framework with the model of power allocation to discuss the relationship between the executive power and the procuratorial power, define the coordinate for clearing their relationship with the facts and draw the conclusion that the executive power and the procuratorial power are independent and play their separate role, and they are also correlative and cooperative as well. However, thanks to various causes, the allocation between the executive power and the procuratorial power in China lose the balance severely. For one thing, the executive power is established arbitrarily and lacks integration. For another thing, the procuratorial power in our country does not deserve the status of legal supervision and is squeezed by the executive power. Hence, we ought to seek the way to understand and settle this issue in constitutional sense. The paper is divided into the following four parts:The first chapter clears the nature of the procuratorial power. Procuratorial power originates from the western countries. The traditional procuratorial power is endowed with strong western constitutional characteristics. In western countries, the positioning of the prosecutors changes gradually from the initial agent of the king's interests to maintainer of the modern public interests. To meet this requirement, the procuratorial power accordingly contains corresponding typical power. The procuratorial power in China is different from that in western countries, which is determined by the ancient and modern development course of China. In our country, there are always controversial opinions about the nature of the procuratorial power, and many related theories have emerged. The author attempts to find a methodology to comb the basic categories of the procuratorial power that through clearing the connotation of the procuratorial power, the author lays the foundation for the following analysis of the allocation model of the executive power and the procuratorial power as well as the exploration of the relationship between the executive power and the procuratorial power.The second chapter analyzes the allocation model of the executive power and the procuratorial power through multiple channels. Start from the consideration on how to allocate the executive power and the procuratorial power in our constitutional system, base on the position and role of the power during the ruling of law and the state responsibility of the power during the exertion. Build the framework to discuss the relationship between the executive power and the procuratorial power with it, and meanwhile examine the static original intention and dynamic tendency of both through a variety of channels. Besides, dismiss the ambiguous frog and define the coordinate for clearing their relationship from the facts to lay the foundation for exploring the relationship between the executive power and the procuratorial power.The third chapter illustrates the relationship between the executive power and the procuratorial power. In our country, there have always been controversies about the relationship between the executive power and the procuratorial power. Whether in the theory circle or in the practice circle, whether in the constitutional field or in the litigation and judicial system area, from different standpoints and ways of thinking, people have put forward different views and understanding upon this issue. In the perspective of the status of allocation of powers stated above, from the basis of power, the main body of the power exertion and the contents of power to the supervision and relief of the power, there are obvious distinctions between the executive power and the procuratorial power. Through further generalization and comparison, a conclusion can be drawn about whether there is the attributive relationship between the executive power and the procuratorial power. Besides, both as components of the socialist legal construction, they have much in common and connect with each other, which can be shown in two aspects:first, the executive power and the procuratorial power coordinate and connect with each other; second, the procuratorial power supervises the executive power.