On Procuratorial Independence

People have never stopped their arguments, criticisms and reconstructions on theprosecutor, which is the newborn of the eighteenth century French Revolution. Inthese arguments, the dispute of the procuratorial organs and prosecutors independence,has been in existence since the prosecutor system was born. Judging from thelegislative and theory, the prosecutors need to adhere to the principle of superiorsoutside the law, under the principle of statutory prosecution, but the reality is not thecase. In many countries, the procuratorial organ is under the Ministry of Justice, theyneed to accept the leadership of the Ministry of Justice. In the procuratorial organ, theprosecutors generally obey the Prosecutorial system integration，so the superiorprosecutor has a strong authority to subordinate prosecutors. Seen in this light, thereseems to be a great relationship between the procuratorial independence and the legalstatus of the procuratorial organ. Not only because the procuratorial organ positioningwill affect whether the procuratorial organ is subordinate to the government and itsMinistry of Justice, but also because the positioning will affect individualindependence in the procuratorial organ. Therefore it is necessary to make a comb onthe legal status of the national procuratorial independence and the position of theprocuratorial organ.Procuratorial system was born in France. French procuratorial organs are setwithin the court system. procuratorial organ is independent of the legislature, andindependent of the other administrative authorities. But to some extent, it is under thecontrol of the minister of justice. The prosecutors have the obligation to obey theirsuperiors, but have some independence in the exercise of their powers. Germany isone country whose procuratorial independence is more thorough. AlthoughGermany’s procuratorial organ is under the Ministry of Justice, to protectprocuratorial independence, Germany did some limit called internal orders andexternal orders. The U.S. federal prosecutors are under the Department of Justice, and they take orders from the President and the Minister of Justice. To overcome thedisadvantage caused by the too strong administrative character, the United States hascreated a unique system of independent counsel to compensate for this shortcoming.Although the United States district attorney is one part of the government, theattorneys are elected by the voters. They are independent. Japanese procuratorialorgan is one part of the Ministry of Justice. Although it is one part of theadministrative organ, the Japanese Procuratorate is independent. In The former SovietUnion and Russia, Procuratorial organ is independent of the other organs, and theprosecutors obey the prosecutorial system integration. In Chinese Twiwan, theprocuratorate is one part of the administrative organ, but it is more and moreindependent. Different countries and districts have different positions forprocuratorate, but, they all agree to that the procuratorial organ and prosecutors areindependent.So called procuratorial independence means that procuratorate is independent ofany individual, administrative organ and political party. And prosecutors areindependent of the orders from superior prosecutors. Due to prosecutorial systemintegration, procuratorial independence is relative. The position of procuratorate isnot the reason of procuratorial independence. The inevitability of procuratorialindependence lies in3aspects:1,it is the demand of prosecutorial power;2,it is theduty of prosecutorial power;3,it is the connotation of prosecutorial power. Ifprosecutorial system exists, procuratorial independence exists.The fact of procuratorial independence does also exist in China. The legislationdid not confirm the prosecutors independence, but Supreme People’s Procuratoratedid some reform, such as the chief prosecutor reform. The factors that affect theindependence of the procuratorial organ are Party, Pepple’s congress and localgovernment. We can go on to reform. For example, we can confine the orders that arefrom superior prosecutors and deal with the relationship between procuratorate, TheParty and Pepple’s congress.