The Orientation And Function Of Procuratorate Under The Background Of The National Supervision System Reform

With the reform of national supervision system,the right of investigation of duty crime is transferred to the Supervision Commission.The constitutional orientation of Procuratorate as the national legal supervision organ has been challenged.Its scope of functions is reduced,supervision is weakened.The dependence of Procuratorate on the right of investigation also reflects,to a certain extent,the problem of investigative centrality in China's litigation structure.The reform also presents opportunities: The Procuratorate,as the national legal supervision organ,guarantees the correct implementation of the law and better plays the supervisory function;as a representative of national interests and social public interests,we bring civil and administrative public interest litigation to safeguard the public interest.The legal orientation of Procuratorate is the national legal supervision organ.1982 Constitution,1979 the Organization Law of the Procuratorate,and current constitution and the Organization Law of the Procuratorate are reflected.In several amendments to the Law of Civil Procedure,the Law of Criminal Procedure and the Code of Administrative Procedure,also stipulates the legal supervision function of the Procuratorate and gives it continuous improvement.The nature of procuratorial power belongs to the right of legal supervision.Under the research paradigm of judicial power-administrative power,it is solved that the problem of the independence and identity guarantee of prosecutors.With the revision of China's Criminal Procedure Law in 1996,the Procuratorate strengthen the public prosecution function in criminal proceedings.The Criminal Procedure Law of 2012,which solves the problems of extorting confessions by torture and prolonged detention,is the embodiment of the function of Procuratorate in exercising legal supervision.Of the public prosecution function.Under the background of national supervision system reform,the legal supervision function of Procuratorate will be further strengthened.Therefore,under the theory of separation of powers,including the theory of judicial power,the theory of administrative administration and the theory of dual attributes can not fully reflect the nature of procuratorial powers in China,nor can they apply the development of reality.The Organization Law of the Public Prosecutor's Office after the reconstruction of the Procuratorate in 1979 established the legal supervision.The definition of legal supervision in China is as: through exercising partial the duty crimes conferred by law,the right of public prosecution and the right to supervise litigation,Procuratorate,in prosecuting crimes and correcting illegal acts in the application of the law,guarantees the uniform and correct implementation of national laws throughout the country.The legal supervision of our country essentially embodies the restriction of power.It is the demand of State institutions under the National People's Congress for the mode of restriction,and it is a modern procuratorial system with control power as the basic orientation,which supervises and restricts the power of other countries.At the same time,the legal supervision embodies the power restriction,also conforms to the criminal justice practice.In the course of court trial,legal supervision is a procedural power,premised on respect for the independence of the Court,and will not directly change the outcome of the decision.With regard to other attributes of procuratorial power,it also has judicial attribute,administrative attribute and public welfare attribute,with the aim of correctly applying law,the Center judgment is fact and law,but the organization is the leadership system,and the purpose of exercising power is to safeguard the public interest.The function orientation of Procuratorate,as the guardian of the correct implementation of legal unification and the representative of the public interest,has certain characteristics compared with different state institutions.Compared with the administrative organs,although both represent the public interest,the Procuratorate represent the overall interests of the State,the public and the long term,and supervise the administrative acts involving the public interest.Both the Procuratorate and the Court are judicial organs,the difference is that the former is a public service representative,a party to the lawsuit,and has a conflict of interest with the defense.At the same time,by exercising the right of appeal,the court is urged to correctly implement the law.And the latter is the center of the referee,through the referee to achieve justice.The Procuratorate and the Supervisory Commission,the former supervised by the implementation of the law,the conduct of State institutions,the latter is illegal state agents,the same way of supervision,the former through participation in litigation activities to find clues,the latter through external review to find criminal acts.The functions of Procuratorate are divided into two categories,litigation function and supervision function.There are criminal,civil and administrative public interest litigation functions in the litigation function.The supervision function includes the criminal Procedure supervision function and the administrative supervision function.The former includes the function of investigation supervision,that is,the compulsory measures of Procuratorate for public security organs are included in the scope of supervision;the latter is the Procuratorate to bring public interest litigation,send procuratorial suggestions before litigation,and urge the administrative organs to correct illegal acts.Retrial and protest is the main way of supervision of the Procuratorate for the joint supervision of litigation and the decision to challenge the judgment of the wrong effect.Procuratorate also have part of the investigation function,in the litigation activities to find the judicial staff illegal crimes,affecting the Judicial Justice of the Act,can be opened for investigation.This article has carried on the exploration to the Procuratorate's function.In the function of investigation and supervision,the main problem is that most of the coercive measures of public security organs are not supervised,the Procuratorate carry out supervision without legal basis,and the synchronous supervision is missing.In the function of litigation supervision,the experience of the pilot of the Procuratorate's early intervention in investigation still needs to be summed up,the intervention effect is not obvious,and the supervision rigidity is not strong.There are a number of problems in the administrative supervision function of Procuratorate in bringing administrative public interest litigation and pre-litigation procedure,including the limited scope of statutory cases,the difficulty of determining administrative subjects and the high cost of litigation.Retrial protest function,retrial procuratorial advice and protest relationship is not clear.The investigation function of the Procuratorate,which has not yet been practiced,may have the risk that the expansion is not restricted,or there may be very few applicable situations.Aiming at the above problems,this paper puts forward some countermeasures.