Research On The "Principle Of Cooperation And Restriction" Of Judicial Organs

The "Decision of the Central Committee of the Communist Party of China on Comprehensively Advancing Certain Major Issues in Governing the Country by Law"(hereinafter referred to as "Decision on Governing the Country by Law")adopted by the Fourth Plenary Session of the 18 th CPC Central Committee proposed the reform requirements of "improving the judicial management system and the judicial power operation mechanism".The coordination and control of the authorities is one of the core requirements of this reform.The"Constitution" and "Criminal Procedure Law" in China both stipulate the principle of "division of responsibility,mutual cooperation,and mutual restraint"to the three organs of the Public security,procuratorate and court.On the basis of the this,"Decision on Ruling the Country by Law" proposed that we should improve public security organs,procuratorial organs,judicial organs,the judicial administrative organs to perform their respective functions,and the institutional mechanisms for mutual coordination and mutual control of investigative power,procuratorial power,judicial power,and executive power." This is the development of the principle of “responsibility,mutual cooperation and mutual restraint” of the three organs.Based on the relevant content in the "Decision on Governing the Country by Law",this paper starts with the development of Research on the "Principle of Cooperation and Restriction" of Judicial Organs,analyzing the necessity of establishing and adhering to the principle,and proposes specific recommendations for this principle by reflecting on the structural defects of the principleIn addition to the introduction and conclusion,the paper consists of five parts,totaling more than 30000 words.The first part is the evolution of the Research on the "Principle of Cooperation and Restriction" of Judicial Organs.The "coordination and restriction principle" of the three organs of the Public Security Law has already taken shape in the early days of the founding of the People's Republic of China and has been continuously improved in its development process.After 1978,the Constitution and the Criminal Procedure Law clearly defined this principle,and it was completely preserved in many constitutional and legal amendments.In 2014,the "Decision on Governing the Country by Law" expanded the content of the judicial administrative organ and the executive power.The "coordination and restriction principle" of the three organs evolved into the "Principle of Cooperation and Restriction" of Judicial Organs.The second part is the persistence of the judiciary's "coordination and restriction principle".In view of the problems that have arisen in the practice of this principle,the academic community has always had the call to change or abolish the principle of "coordination and restriction" of the judiciary.However,in the context of China's litigation culture that emphasizes negotiation and cooperation,this principle is consistent with the laws of the judiciary and China's national conditions,and has the Circumferential of linguistic expression and openness in specific content,and has played a role in judicial practice.The important role must be constantly revised and developed on the basis of adhering to this principle.The third part is the basis for the establishment of the "coordination and restriction principle" of the judiciary.First of all,it is necessary to carry out a new interpretation and improvement of the "coordination and restriction principle" of the judiciary to reflect the "trial-centered litigation concept." Second,summarize the four powers.The judicial authority's "coordination and restriction principle" newly added the executive power,and the other three powers in criminal litigation jointly formed the "four powers".While emphasizing the power relations of the three organs,they will re-emphasize the executive power.In addition,unlike the Western procuratorial system,China's procuratorial organs also have the power to supervise the law and should respect the special status of the procuratorial organs.On the basis of respecting the special status of the procuratorial organs,it is necessary to construct a new type of police inspection relationship.Based on China's special national conditions,the procuratorial organs and the public security organs should not over-cooperate or over-constrain,the principle of "coordination and restriction" needs to construct a new type of Police—prosecution relationship.Finally,it is necessary to reflect the judicial law and international trend of judicial review.Although the judicial review system has not been established in China,according to the connotation requirements of this principle,it is necessary to establish a judicial review system to reflect the judicial law.This is also an international trend.The fourth part is the structural defects of the "coordination and restriction principle" of the judiciary.Although the "coordination and restriction principle" of the judiciary must be adhered to,it has the following structural defects: First,the positioning of the relationship between the public security organs and the procuratorial organs is unreasonable;second,the procuratorial organs have not fully exerted their supervision and control of the public security organs and the judicial supervision of the court is absent,so in practice,the power of the public security organs is too large;third,the current detention center is affiliated to the public security organs,resulting in the lack of neutrality of the detention center,and the procuratorial system of the detention center is not well supervised.The public security organs have the power to self-investigate and detain themselves;fourthly,the current procuratorial organs have relatively simple supervision over trials.Even if the procuratorial organs' supervision of the trials is stipulated,it is more difficult to implement in judicial practice.Fifth,the procuratorial organs' property punishment The implementation supervision method is single and the constraints are weak,and the procuratorial organs pay insufficient attention to the supervision of property punishment execution.The fifth part is to improve the specific measures of the "coordination and restriction principle" of the judicial organs.According to the spirit of the Fourth Plenary Session of the 18 th CPC Central Committee,the improvement of the "coordination and restriction principle" of the judiciary requires multiple measures to continuously promote reform.Specifically,the first is to establish the procuratorial guidance and investigation of the Chinese characteristics of the police inspection;the second is the reform and improvement of the procuratorial supervision of the procuratorial organs;the third is the transfer of the functions of the people to the reform of the people's court;the fourth is to transfer the detention center to the judicial administrative organs;Unified penalty execution system.