Theory About Judicial Restraint Of Procuratorial Organ In Our Country

Power is just like a double-edged sword, It can maintain the stability of socialorder，and can also destroy human rights and the rule of law. Judicial power as theimportant content of state power, is not exception. The wrongs occur frequently in thejudicial practice in the modern society is a disgrace to the judiciary. is also theembodiment of the judicial power which has not been effective constraint. until thewrongs occur before correcting, damage has been done, even if save doesn’t work,especially some mistakes can not be saved，So what we have to do is how to avoid theoccurrence of these wrongs. To control the judicial power and make it play toguarantee citizens’ rights and maintaining social order under the rule of law，this is thefocus of nearly30years judicial reform.Restriction and supervision is the main way of limiting power, Because of thedifferent nature,their role in the control power is also different. Because of thesimultaneity, equality and other characteristics. Restriction can be timely and effectiveprevention and control of power abuse. Because of the lag, unidirectional andexternality, Supervision can only punish power abuse and correct it. This makesrestriction in judicial power constraint control should play a leading role, thesupervision is the effective supplement to the restriction. Prosecutors in the field of criminal procedure is a public prosecution organs andsupervision organs. It took the action restriction and legal supervision function. Twodifferent ways of power constraints can complement each other, and the procuratorialorgans have the effect of the mainstay in constraints jurisdiction. However, due to thetwo functions in judicial theory and practice have not been accurately definied anddistincted. functions confused each other. The consequences of this is the actual statusof procuratorial organs in criminal proceedings is far lower than the investigationorgan and the judicial organ, cannot effectively constrained indictment and trial.Especially the phenomenon of infringement of the rights of citizens appearedfrequently in the judicial practice such as forced confession and illegal custody,which severely reduces the judicial credibility. The procuratorial organ’s legalsupervisory functions because of the abuse and the lack of security measure often getcold reception,and can’t prevent and correct of these phenomena. Therefore this papertalk about how to perfect our country’s judicial restriction mechanism from the Angleof the procuratorial organ, hoping to improve the situation about procuratorial organslacking of restriction and supervision powerless in the judicial practiceThe constitution provides for the principle of the judicial restrictionmechanism,but did not make the detailed rules about procuratorial organ litigationrestriction function. Staff of procuratorate emphasis too much on relying onsupervision function in the judicial practice, there are even cases about legalsupervision function instead of the public prosecution restriction function. Neglect ofthe judicial restraint function of procuratorial organ leading to abuse of power in theinvestigation organ and judicial organ. And legal supervision function ofprocuratorial organs replace restriction function in the criminal lawsuit action,willaffect the trial activities and influence the effect of the legal supervision.Therefore,we must be accurate positioning the two functions of procuratorial organsto solve these problems. In criminal lawsuit, the function of procuratorial organsshould give full play to the constraints, and the three authority regulate their ownbehavior through mutual restriction to prevent abuse of power. The legal supervisionfunction of procuratorial organs can only use when Litigation restriction can’t work. After making a clear distinction between legal supervision function and judicialrestriction function, shifting the judicial personnel’s ideas, we need to perfect thesystem to ensure good operation of the judicial restriction mechanism. The authoranalyzes the procuratorial system of continental law system and Anglo-Americanlaw system countries, trying to understand similarities and differences ofprocuratorial organ judicial restriction mechanism, and draw lessons from thesuccessful experience of system. In reference to the relevant experience andcombining with the basis of its national conditions, this article put forward its ownSuggestions from the filing stage to perform stage on the restriction of procuratorialorgan function, establish filing restriction system、Perfect the procuratorial organfor examination and approval system of compulsory measures etc. hoping throughthe improvement of the system of restriction to solve the problems in the judicialpractice and through the improvement of the legal supervision function for auxiliary.The improvement of the judicial restriction mechanism is more than just therealization of justice of the case,its more far-reaching significance is through thepower restriction to make the judicial organs use power strictly in accordance withlegal procedures, completing the transition from procedural justice to substantivejustice, raising public conviction and reliance on judicial activity, establishing theauthority of law, finally realizing the rule of law civilization and the socialistharmonious society.