The Research On The System Of The Alteration Of The Public Prosecution

As one of the most important powers of public prosecution, the power of altering the public prosecution is that a lawsuit behavior that the prosecutor alters the prosecution after prosecutes the defendant and the judge starts the judicial authority. It refers that the public prosecution institution have the right to decide whether to alter the prosecute when there being errors and omissions. The core of public prosecution power is prosecuting and punishing the crime. At the same time it means maybe depriving of a person's liberty or life. Wrong prosecution means indulging crime or hurting the Innocent person. So the prosecutor ought to alter the prosecution when they find the situation has changed and it should be altered. This is the duty of objection and also fits the requirement of exercising the public prosecution power correctly. It refers to the Power of the rights and interests for these three aspects, charge, defense and justices, and it is a vital part in implementing the just and efficient justice and maintaining the justice authority, therefore, many country makes it as a legislative rule, however, it is not established definitely in the present legislation of our country, not come to the academic's attention closely, and the operation of the change of public prosecution is in a state of being confused. Only the Supreme People's Court and the Supreme People's Procuratorate have carried out some prescriptions by the means of the justice explanation. The article introduces the problem of the alteration of the public prosecution and it also gives some proposal to this question. This thesis has four parts. It discusses the meaning and the theory foundation of the Power of altering the public prosecution, the relationship between the power of altering the public prosecution and the power of public prosecution and the homology basis of the alteration of the public prosecution, the inspection of the power of altering the public prosecution and the consummation to the power of altering the public prosecution in our country. All in all, the article carries on the discussion to the power of altering the public prosecution.The first chapter introduces the alteration of the public prosecution. This chapter introduces the meaning and the type of the alteration of the Public Prosecution. According to the power division, the article divide the power of altering the public prosecution into withdrawing the prosecution, adding the prosecution and changing the prosecution. It also tells the nature of the alteration of the public prosecution. The alteration of the public prosecution is an extension of the right of the public prosecutor. At last, the system of the alteration of the public prosecution affirmed in the law by majority counties in the world, so it has its own theories for certain. There are some principles in this system:the principle of the separation of the charge and the justice, the modern public prosecution of discretion and initiative, prosecutor's impersonal obligation, the human rights safeguard theory, effective action theory.The second chapter, it refers the comparative research on the system of the alteration of the public prosecution. According to the legislation of Japanese, Italy, German and French, it gives the character and the reference main source. Because the legal tradition and the lawsuit pattern are different in various countries and area, the alteration of the public prosecution manifests the different characteristic, this article divides above national and the local appeal change pattern into the judicial control and the complaint leading, it will give some advices to our country through summarizing their similarities and differences refinement.In the third part,it discusses the existing problems in the system of the alteration of the public prosecution in our country.First of all, there is no prescription about the alteration of the public prosecution issue in Chinese Criminal Law. Fort he justiciary need, the Supreme People's Court and the Supreme People's Procuratorate give some Prescriptions by the means of the justice explanations, which is self investiture and breaks the rule of the legal formality seriously. Moreover, the justice explanation to the related prescription is too simple and cursory, even some are unreasonable. In more specific terms, the problems we faced are that the instituted time is too extensive; the rights and interests of the accused and the victim are lack of guarantee; the court automatic change prosecution charge unlimited as well as after the withdrawing charges following procedure random grade.In the fourth part, on the basis of analysis and legislation of the alteration of the public prosecution and the, according to the actual situation and the overseas experience, the article gives some advice on the alteration of the public prosecution. The alteration of the public prosecution contains:legislation on the alteration of the public prosecution; the time limitation of the alteration of the public prosecution must define before the first trial forensic argument ended; the scope of the alteration of the public prosecution; the limitation of the Judge changes the charge.