Research On The Reform Of Chief Prosecutor System

The latest reform of the procuratorial work raises the mission about deepening the prosecutor responsibility system,it demands to establish a organization mode which is well defined power and responsibility,in close collaboration,restricted strong and efficient operation.Cao Jianming who is the procurator-general of the supreme people’s procuratorate, requests: “it needs to reform and improve the system of guiding the decision of law enforcement, improve the organization mode,and deepening the the prosecutor responsibility system ”. Under the background of reforming, the supreme people’s procuratorate printed and distributed a document called <The pilot program about the prosecutor responsibility system > at the beginning of 2014 and decided to carry out the work about the prosecutor responsibility system in 17 procuratorates.Practicing the prosecutor responsibility system is the requirement about the rule of the law of the procuratorial work, and it would also help exercise the procuratorial power in an independent and just manner and improve the credibility of the procuratorial organs.Chief prosecutor system is the core content of the prosecutor responsibility, and is also a innovation mode of the prosecutor responsibility system. Chief prosecutor system has been carried out in test units all over the country so far, such as Pudong New Area people’s Procuratorate and Minghang District people’s Procuratorate in Shanghai. The results of test units displayed that the chief prosecutor system would help the optimal allocation of the procuratorial power, weaken the effect of the administration of the procuratorial organs, and highlight the judicial nature of the procuratorial work.This paper studied on the chief prosecutor system, elaborated the chief prosecutor system’s value significance, operational frame and the model and construct with field researching and literature reviewing. Meanwhile, making a theoretical analysis centering on the chief prosecutor system from the perspective of the relationship between the procuratorial integration and the procuratorial independence in a comparative way. The paper would state the law of France, German, Japan, Taiwan and the Anglo-American law system,highlight the importance of procuratorial independence,and pointed out that dealing with the relationship between the procuratorial integration and the procuratorial independence is the key to the the chief prosecutor system. At last, under the ground of applause which is about the chief prosecutor system in judicial practice, the paper would pointed out the existing problems about the system, and hoped the system will have continuous improvement and mature in the following aspect: the management about the procuratorial personnel; the repartiton of responsibility and authority; the mechanism of supervision and restriction. The paper is divided into four chapters, the main content are as follow:The first chapter is the basic overview about the chief prosecutor system, it includes 3 parts: 1.The basic concept of the chief prosecutor system. The chief prosecutor system is a system of prosecutor responsibility which is under the leadership of chief procurator and procuratorial committee, a team, which is made of the main prosecutor and the general prosecutor, within the scope of authority can exercise the right of decision when handling the case and bear the responsibility. Although the law of our country has no rules about the chief prosecutor system, the latest policy documents about the procuratorial reform assert a specific claim about the prosecutor responsibility system that is pushing on the chief prosecutor system which is the key to the prosecutor responsibility system. 2.Compare the chief prosecutor system with the principal prosecutor system. Compared to the principal prosecutor system, the chief prosecutor system has more advantages. At the beginning design of the two system, they were both for the sake of weakening the administrative mode in the procuratorial organs, giving the power to the chief prosecutor or the principal prosecutor, and improving the quality and the efficiency of cases. The differences between the chief prosecutor system and the principal prosecutor system are: the power spectrum of the prosecutors; the division of powers and responsibilities; the prosecutors’ treatment and promotion mechanism; the system of the scope of application. 3.The value and significance of the chief prosecutor system. In general, the value and significance include four aspects: the chief prosecutors have the power of independence, they are the subject position when handling a case, so it is good for weakening the administrative mode in the procuratorial organs; adjusting the organization form of case handling and the type of internal organization is good for improving the quality and the efficiency of cases; dividing the powers and responsibilities between the chief prosecutors and the general prosecutors is good for achieving the unification of powers and responsibilities; setting reasonable inspection conditions and selection mechanism is good for the specialization building of the prosecutors.The second chapter is the general framework of the chief prosecutor system, it includes 6 parts: 1.The operation mode of the chief prosecutor system.The general operation mode of the chief prosecutor system is “the prosecutor- the chief prosecutor-the prosecutor general ”. And it is divided into 3 kinds of modes: setting up the chief prosecutor team directly; by improving the existed internal organization to set up the chief prosecutor team; retaining the existed internal organization. The paper thinks the mode of by improving the existed internal organization to set up the chief prosecutor team is reasonable,safe and feasible. 2.The scope of the authority of the chief prosecutor. The key point of the chief prosecutor system is the independent power of the chief prosecutor. In general, the power of the chief prosecutor includes the power of deciding cases, the power of distributing cases, the power of guiding cases. The paper thinks in order to divide the chief prosecutor’s power, it is necessary to give a negative list. 3.The relationship between the chief prosecutor and others. The chief prosecutor needs to handle the relationship with the prosecutor general or the procuratorial committee, with the director of the office, with other prosecutors in a team, with other chief prosecutors. And the relationship between the chief prosecutor and the director of the office is the key point to the system’s success. Under the chief prosecutor system, the relationship between the chief prosecutor and the director of the office is the cooperative relationship between administrative management and judicial case, not the relation of leader and being led. 4.The selection mechanism of the chief prosecutor system. It is important to clear and definite the conditions and procedures of the selection. The chief prosecutor should have the high quality of political and professional ethics, should have the solid theoretical basis and business level, and good work performance. Meanwhile, it is necessary to improve the chief prosecutor’s treatment and open a special channel for the chief prosecutor’s promotion. 5. The rights protection system for the chief prosecutor’s promotion. For the sake of exercising powers more smoothly, it needs to establish the rights protection system for the chief prosecutor’s promotion, including systematical guarantee for the chief prosecutor’s duties, the chief prosecutor’s joint conference, and the chief prosecutor’s business archives. 6. Supervision restriction system of the chief prosecutor system. In order to prevent abusing power, it is necessary to establish Supervision restriction system of the chief prosecutor system when the chief prosecutor has lots of power, including the supervision mechanism of the case’s quality, the prosecutor general decision or the procuratorial committee discussion, lifelong responsibility for the case quality.The third chapter is the theoretical analysis of the chief prosecutor system, it includes 3 parts: 1. Summary about the procuratorial integration. The procuratorial integration is the principles of operation which refers to administrative procuratorial authority, the basic content is: The relationship between higher and lower is leadership and obedience. All different levels procuratorial organs have the obligation of mutual assistance. Procuratorial organs and prosecutors can have the relation of inheritance, transfer and agency. The procuratorial integration is good for the unification of legal system. By resources integration, the procuratorial integration can kill the crime, supervise the prosecutors and prevent abusing exercising powers. 2. Procuratorial independence in the eyes of comparative law. Procuratorial independence in the paper means the the prosecutors’ independence position.By researching the laws of France, German, Japan, Taiwan and the Anglo-American law system, it is obvious that many countries give prosecutors’ right of independence and highlight the independence of prosecutors. 3.Research on the relationship between procuratorial integration and procuratorial independence. The relationship between procuratorial integration and procuratorial independence is conflicting and balance-able. The conflicts are following: under the system of procuratorial integration, the procuratorial power is concentrated and efficient, but it can also lead to a situation which the prosecutor general will command willfully and prosecutors’ independence will be threatened. If the prosecutors’ independence is too over, it will lead another situation which prosecutors will abuse powers without the prosecutor general’s leadership. The paper thinks in order to balance the relationship between procuratorial integration and procuratorial independence, it is important to make clear about the position, function and significance. In simple terms, procuratorial independence is the first place, it is a principle. And procuratorial integration is the second place, it is a external organization form.The fourth chapter is the existing problems and the direction of improvements of the chief prosecutor system, it includes 2 parts:1. the existing problems of the chief prosecutor system. The paper thinks the chief prosecutor system exists 3 problems: the separation between the power of case decision and the power of handling cases; inequality about the chief prosecutor’s responsibilities and interests; indeterminacy about legal regulations. The problem of the separation between the power of case decision and the power of handling cases is the most serious. In the team, the prosecutor is responsible for handling the case, but the chief prosecutor has the power of case decision and approvment. There is no difference with the director of office who had the power of handling cases in old times. In nature, it is the separation between the power of case decision and the power of handling cases. 2.The direction of improvements of the chief prosecutor system. In order to play a role in juridical practice, the chief prosecutor system needs to improve 4 aspects at least: establishing the management system which consistent with the procuratorial personnel’s characteristics; dividing powers and responsibilities scientifically and improving the system of the procuratorial power operation; improving the supervision restriction system; improving the quality of procuratorial personnel and pushing on the whole team’s professional construction.