On The Liability System Of Prosecutors' Violation Of The Objective Obligation

The research on the objective obligation of the procurator in our country mainly stems from two books--Kensatsukan no Dokuritsu-Ittai Gensoku(the objective obligation of the prosecutor)written by a Japanese scholar named Ichiro Matsumoto and the theory of the prosecutor written by a Taiwan scholar named Juexiong Lin--which both describe in detail the meaning and origin of the objective obligations.Such system was first established in Germany,in which the prosecutors was endowed with the objective obligation above all the parties involved,the concept of the objective obligation of the procurator was introduced into China in the early stage of the Chinese economic reform,but only until the beginning of the 21st century did it become the hot topic of academic research and judicial practice.The system was gradually recognized and accepted during the following years,and combined with the prosecutor system with Chinese characteristics,it was researched and analyzed deeply and fruitfully.The current Criminal Procedure in China explicitly stipulates the prosecutor's objective duty in investigation,prosecution as well as legal supervision,and besides,points out violating the objective obligation will be investigated.However,the lack of illustrating who appropriately investigated the responsibility,who is the obligor,which violation should be investigated and how to implement the investigation makes the system in China lose its operability and effectiveness.The key to resolve the ineffectiveness of the Chinese version objective obligation of the prosecutor can be sectioned into three parts.Firstly,a comprehensive jurisprudence analysis should be conducted to figure out the necessity of responsibility investigation on the objective obligation of the prosecutor based on the basic conditions of Chinese procuratorial system and the requirements to develop the rule of law;Secondly,to answer the question of "who appropriately investigated the responsibility",then to set up a responsible agency independent of the judicial organs,it can not only avoid the shortcomings of self-examination and self-correction within the judicial organs,but also better solve the initiative;Thirdly,so called the prosecutors' objective obligation,then the subject of the obligation is the "prosecutor",but what is meant by "prosecutors",the specific scope of what should be included in the staff?This is against the objective;Fourthly,perfecting the way of investigating the responsibility of violating the objective obligation,so as to realize the responsibility and disciplinary effect by clarifying the cause of responsibility and improving the responsibility of punishment;Fifthly,there will be a large number of judicial personnel to violate the law and discipline of the phenomenon in China,but the case is not a lot,one of the important reasons is difficult to start,so improve the source and reception of clues,listen to statements and arguments,complaints and review,the lifting of the link is the responsibility to effectively promote the protection of the proceedings.Finally,under the conditions of low independence of prosecutor,limited discretion,the internal examination mechanism and the criminal reconciliation system advocated by our country,the objective obligation of the procurator is not an independent system,only armed with optimization of power allocation and other supporting systems can it fully play its role.