Positioning Analysis Of Prosecutorial Power The Legal Supervision Power

As a cornerstone of prosecutorial research theory problems, The definitions of Prosecutorial powerwill directly determine the optimal allocation of the prosecutorial authority, determine the China’sprosecutorial organs’ position in state power system, and affected the direction and value orientation ofjudicial system reform. Based on Chinese reality and different theories and ideas of prosecutorial research,the writer analyze the positioning of prosecutorial power, aims to provide reference for Chinese judicialreform.First part, The positioning analysis of prosecutorial power. There are three theories about prosecutorialpower now: judicial power, executive power, dual nature of judicial power and executive power. Thesetheories base on separation of three powers, and classify the prosecutorial power from executive andjudicial basic characteristics. In view of China’s prosecutorial power, the domestic scholars put forward thefourth theories, named the legal supervision power. By comparing the east and west prosecutorial systemevolution history, the prosecutorial reality construction and development trend of the prosecutorial power,the author found that in today’s world nature of prosecutorial power has its particularity. Prosecutorialpower is not identical from the eastern to western. There are executive power, jurisdiction and legalsupervision. The prosecutorial power is special. It is division and integration of the original power. It is aspecial kind of power type. Prosecutorial power is spillover. It is difficult to define the prosecutorial powerby the traditional administrative power or judicial power.Second part, The problems in the positioning of Chinese Prosecutorial Power. The prosecutorial powerhas the positive effect on beating various criminal, curbing official corruption, punishment of dereliction ofduty. But there are many problems in the positioning of prosecutorial power. One is that the surveillanceway is single. The surveillance ways are sending a protest, sending correct illegal notice, and offeringprosecutorial work proposal. These ways lack of more powerful supervision mode and means. One is thatthe content of prosecutorial work mainly focus on litigation areas of supervision, that is that investigationsupervision activities, the trial surveillance and execution supervision. These activities are fuzzy and lackthe detail regulation for the time, pattern and effect of supervision. At the same time the lawsuit supervision is slightly blank. One is that the supervision strength is weak. For lacking of rigid supervision means, theeffect and strength is not big enough. One is that the prospective is weakness. The current law supervisionfocuses on afterwards supervision rather than prior supervision. In another side, The Chinese ProsecutorialPower dependence on the party committees and governments at the same level in the personnelemployment management and funds guarantee.Third part, The analysis of reasonable path to the prosecutorial power legal positioning. Return ofrights. Active supervise power, including exactly the impeachment power to people and to the files. Theformer refers to investigating or advising punishment measures to the related responsible people whoinvolved in big malfeasance cases or potential ones; the latter refers to submitting related normativedocuments which violate constitution and laws to people’s congress and its standing committee for checkup.Final judgment to controversial cases guides the parties to obey the authority which can better preventunfair phenomenon in law, convince the parties of the judgment fairness and relieve the burden of appeal.Therefore, it is crucial to strengthen all sorts of lawsuit supervision. Secondly, transition from flexiblepower to rigid power. The effective means should be endowed with supervision departments throughlegislation to find out illegal cases, which include that prosecutorial department is endowed to usetechnologies and the suspected units and personnel of duty crime provide relevant case materials andevidence etc; it should be definitely prescribe the illegal notice, the suitable situation、methods and effectof prosecutorial suggestion and the handling ways to people who refuse to correct the illegal action. Thirdly,The building of supervise platform. Law officer should be appointed by the superior standing committee ofNational People’s Congress under province of veridical leadership; It is suggested that appointing personnelmanagement should be given more independent authority, prosecutorial department should be endowedwith more independence in determining the candidate of attorney general; it is necessary to strengthen themain professional guarantee and education of sense of honor, improve and ensure the salary welfare andsome special security in personal and human culture of law supervision body personnel so as to improvetheir professional pride and make them cherish the work opportunity.