Research On The Functions Of Procuratorial Organ In The Criminal Procedure Of Second Instance

Except preface and epilogue,the article is divided into three parts:The first part is about the theoretical research on the function orientation of procuratorial organ in the criminal procedure of second instance.The understanding of the function and value of criminal procedure of second instance is directly related to the function orientation of procuratorial organ in second instance.Criminal second instance is the trial reheard by judicial organ at the next higher level,caused by the appeal of defendant or counterappeal of procuratorial organ.It has already been the dominant ideology that second instance has multiple functions such as right remedy,error correction,unification of law,emotional persuasion,and so on.But the understanding of rank related to the function of remedy and of error correction has yet to reach an agreement.There are different theories about the function orientation of procuratorial organ in second instance,which are mainly the theory of trial supervision,the theory of prosecution function,the theory of coexistence of prosecution and supervision and the theory of main functions of maintaining the unified and right implement of law.The second part is about the function fulfillment of procuratorial organ in prosecutorial practice in second instance.The performance of prosecution function exist problems like the over-reliance on the review of files before court,the formalization of arraignment before court,and underperforming on the trial.The reasons of underperforming of prosecution function are: roles confusion caused by the coexistence of two main functions,shortage of judicial resources,applicable difficulty of comprehensive review principle,imperfect of relevant legal norms,etc.Trial supervision function has the problem of performing with difficulty: the randomness of trial of appealed cases and poor supervision effect;Counterappeal cases have problems of deficiency,direction deviation,and playing a role of supervision with difficulty;Correct opinions have the name falling short of reality;Procuratorial organ has cognitive bias of trial supervision in second instance.Trial supervision function is difficult to perform mainly caused by the conflict of asking for instruction and reporting system,the lack of consciousness,ability and methods of prosecutor's supervision,the suspicion of validity,the supervision predicament under benefits balance the supervision and the tendertiousness of evaluation system.The third part introduces the modification plans on the procuratorial functions in the criminal procedure of second instance.Firstly,introducing the reform plans in the procuratorial practice.The way is to moderately separate prosecution function and trial supervision function,but in theory,the separation of these two functions of separation is difficult to achieve the purpose of better performance of the procuratorial functions,these two functions is difficult to separate within the procuratorial organ,and the separation will affect the efficiency.From the view of practice,there are mainly two methods which are setting supervisory organ inside the procuratorate and setting trial supervisory group inside the existing procuratorial department of second instance.These two methods are both facing the problems of the unclear of functional boundaries and the weakness of supervisory department.Secondly,introducing the reform plans about exploring the litigant reform of trial supervision in the theoretical realm,mainly aiming at the start of the counterappeal.The claim of using hearing to examine the necessity of counterappeal is facing problems of questioning of effect,seeking far and neglects what lies close at hand,and violating the principle of litigation economy.Finally,pointing out the reform path of abandoning the trial supervision function and configuring the prosecutorial power in second instance with prosecution function.Abandoning trial supervision function has theoretical and practical justification: it conforms to the requirements of litigant system reform which is trial centered;It is a rational choice under the principle of three organs cooperating and restricting with each other;It is not a compromise choice in which the practice deviates from the expression;It does not deny the prosecutor's objective and impartial obligation.On the power allocation,replacing trial supervision with restriction of litigious right restriction,carrying out the principle of equal armed,and safeguarding the rights and interests of the defense;changing the supervision nature of the criminal protest right.On the reform and establishment of the system,strengthening prosecution function needs multiple efforts such as continuing to promote the litigant system reform of trial centered lawsuit system,reforming the principle of comprehensive review,setting up the mechanism of case handling among different ranks of prosecutors,strengthening procuratorial professional ethics construction.The final reform needed to be done is perfecting the procuratorial case handling mechanism in second instance.