If you want to ask the prosecutor's "power", please see the following article, the Supreme People's Procuratorate's article:
Functions and powers of contemporary prosecutors
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Authors: Zhang Qiong, Deputy Attorney General of the Supreme People's Procuratorate.
Due to the different procuratorial systems, the duties and powers of prosecutors in different countries are also different. However, there are still many similarities in the functions and powers of prosecutors. Generally speaking, its functions are mainly:
Investigation, prosecution and supervision.
● Prosecutors' investigative power is innate, and it is also an international practice for procuratorial organs to have investigative power. Judging from the current situation of the anti-corruption struggle, the investigation power of procuratorial organs should be strengthened, not weakened.
The right of public prosecution is a judicial claim, which requires the state judicial organs to accept cases and conduct trials; The right of public prosecution is also a right of criminal prosecution, which can investigate the criminal responsibility of the defendant, thus curbing the crime and restoring the destroyed legal order.
● The right of supervision is an important authority of prosecutors. The experience of the 50 years since the founding of New China shows that if the legal supervision is strengthened, the legal situation will be better, and there will be fewer violations of law and discipline and misjudged cases; When legal supervision is weakened, the legal situation will deteriorate, and justice will often hurt good people or condone bad people.
Prosecutors are full-time national staff and are assigned to procuratorial organs to exercise procuratorial power. Judging from the development history of criminal proceedings, the appearance of prosecutors is the product of the comprehensive intervention of state power in criminal proceedings, which is realized through the infiltration of administrative power into judicial power. The combination of administrative power and judicial power makes the prosecutor have a dual identity. He is both a civil servant of the administrative organ and a judicial officer. Therefore, in many western countries, prosecutors are under the leadership of the Minister of Justice or the Minister of Justice, and the organizational system of prosecutors is established according to the model of administrative organs. However, the activities are carried out under the principle of "procuratorial integration". Every prosecutor must obey and respect the orders of the competent head and the higher-level procuratorial organs, and the national procuratorial organs must obey the orders and instructions of the highest procuratorial department. However, the procuratorial system is often set up according to the setting of the court, especially in countries with civil law system, prosecutors are generally stationed in the court to carry out their work. The prosecutor became the second judge to enjoy certain judicial discretion. Therefore, in some countries, procuratorial organs belong to the sequence of administrative organs, and prosecutors are civil servants of administrative organs; Some national procuratorial organs belong to judicial organs, and prosecutors belong to judicial officials. Britain regards prosecutors as administrative officials, and Hong Kong has inherited the British judicial tradition. Therefore, the Basic Law of the Hong Kong Special Administrative Region stipulates the procurator of the administrative department. Portugal regards prosecutors as judicial officials, and Macao adheres to Portugal's judicial tradition, so the Basic Law of the Macao Special Administrative Region
Prosecutors are prescribed by the judicial department.
Due to the different procuratorial systems, the duties and powers of prosecutors in different countries are also different.
However, there are still many similarities in the functions and powers of prosecutors. For example, the United Nations Guidelines on the Role of Prosecutors set out the responsibilities of prosecutors. Article 1 stipulates that a public prosecutor is an important legal worker and a profession with honor and dignity; Article 11 stipulates that the public prosecutor has the right to initiate public prosecution; Article 14 stipulates that the procuratorate has no right to appeal; Article 15 stipulates that prosecutors have the right to investigate corruption cases; Article 16 stipulates that the public prosecutor has the right to supervise; Article 17 stipulates that prosecutors have discretion. Generally speaking, its functions are mainly: investigation, prosecution and supervision. The following are introduced respectively:
First, the right of investigation.
(a) The need for prosecutors to have investigative powers
First of all, the prosecutor's right to investigate is innate. The historical prototype of the public prosecutor originated from the "king's agent" in France, and one of its main functions is to inspect and correct officials on behalf of the state. The origin of China's procuratorial system can also be traced back to the ancient imperial system. An important duty of the censor is to "correct the illegal behavior of officials", which is called "the eyes and ears of the emperor" and is responsible for correcting "the good and evil of hundreds of officials".
Secondly, it is an international practice for procuratorial organs to have investigation power. Article 15 of the United Nations Guidelines on the Role of Public Prosecutors stipulates that public prosecutors should pay due attention to crimes committed by public officials, especially corruption, abuse of power and serious human rights violations, and investigate such crimes according to law or practice. Generally speaking, the procuratorial organs of all countries have the power of investigation, but the degree and scope are different. South Korean prosecutors have great investigative powers. They arrested the sons of former presidents Quan Douhuan, Lu Taiyu and then President Jin Yongsan on suspicion of taking bribes. The U.S. Attorney General is also the Attorney General, and the U.S. Department of Justice has a huge investigation agency, the Federal Bureau of Investigation, which is under the command of the Federal Attorney General. State-level procuratorial organs also have the power of investigation. For example, the U.S. attorney's office investigated the bribery case of Douglas Aircraft Company in 1980s. Over the past seven years, the company has paid bribes to politicians in more than ten countries, including Pakistan, Japan, the Philippines, South Korea and Zaire, including some heads of government, such as former Pakistani President Bhutto. The case was solved by US federal prosecutor Michael Rubin for four years.
The special prosecutor investigation in the United States is the most distinctive. For example, independent prosecutor Starr recently investigated the extramarital affairs between President Clinton and Monica Lewinsky. Civil law countries implement the "integrated system of prosecution and police", and prosecutors have greater investigation power. For example, in Germany, prosecutors have the right to investigate all criminal cases. He can investigate in person or entrust the police under his leadership to investigate. The law does not clearly stipulate the circumstances in which prosecutors personally investigate and entrust investigations, and prosecutors have greater decision-making power. Japan's investigation power is similar to that of civil law countries. Japanese law stipulates: "A public prosecutor may investigate a crime on his own when he thinks it necessary." Prosecutors can conduct investigations on their own or guide police investigations according to national needs. If the police do not obey the direction of the prosecutor, the prosecutor has the right to propose punishment or dismissal to the relevant departments. A department of the Japanese procuratorate is called "Special Search Department", or "Special Search Department" for short, which is specialized in exercising investigation power. They uncovered the sensational Likulut bribery case, in which then Prime Minister Noboru takeshita and former Prime Minister Nakasone Yasuhiro were suspected, and Noboru takeshita was forced to resign.
Judging from the current situation of the anti-corruption struggle, the investigation power of procuratorial organs should be strengthened, not weakened. The International Anti-Corruption Organization is a non-profit, non-governmental international organization, which carries out anti-corruption activities on a global scale and is headquartered in Berlin, Germany. Starting from 1995, the corruption rankings of countries and regions in the world are published once a year. This ranking of corruption is the conclusion of the organization's branches around the world and world-renowned survey institutions through public opinion surveys.
This corruption ranking is inevitably one-sided. However, the number of countries and regions participating in the ranking increased from 4 1 at the beginning of 1995 to 85 at 1998, indicating that this ranking has been recognized by everyone and has its credibility and authority. They give each country a score from 0 to 10. The higher the score, the cleaner it is, and the lower the score, the more serious the corruption is. China scored as follows: 1995, 4 1 corruption ranking of countries and regions was published, and New Zealand ranked first with 9.55 points. China scored 2. 16, only surpassing Indonesia, ranking second from the bottom among 4 1 countries and regions. 1996 the anti-corruption international organization published the corruption rankings of 54 countries and regions, with the highest score still being New Zealand, with 9.43 points, followed by Nigeria with 0.69 points and China with 2.43 points, rising to the sixth from the bottom, ranking 49th. 1997, the international anti-corruption organization published the corruption rankings of 52 countries and regions, with the highest score of 9.94, and China scored 2.88, 0.72 points higher than 1995 and 0.45 points higher than 1996, and the ranking rose to the bottom 12. During the period of 1998, the international anti-corruption organization published the corruption rankings of 85 countries and regions, with the highest score still being Danish, and China scored 3.5 points, the highest score in the past years, ranking 52nd among 85 countries and regions. This shows that China has made remarkable achievements in anti-corruption and has been recognized and praised by the international community. However, it also shows that the anti-corruption task in China is still arduous, and the procuratorial organs should also strengthen their investigation power and intensify anti-corruption.
Corruption and bribery cases in China have been increasing since the early 1980s. Here I use three five-year figures to fully illustrate this problem. During the five years from 1983 to 1987, the national procuratorial organs * * * put on record to investigate and deal with corruption, bribery and other duty crimes150,000 cases; During the five years from 1988 to 1992, more than 2 10000 cases of duty crimes such as corruption and bribery were filed for investigation, with an increase rate of 40%; During the five years from 1993 to 1997, 380,000 cases of duty crimes such as corruption and bribery were put on file, an increase of 80% over the previous five years. Among these cases, the number of duty crimes committed by leading cadres at or above the county level has increased even more. In the first five years, it was 1500 pieces;
In the second five years, 4,233 pieces, an increase of182.2%; In the third five years, there were 10792 pieces, an increase of 154.9%. Among them, in fifteen years, * * * investigated and dealt with provincial and ministerial cadres 2 1 person; 909 cadres at the prefecture level;
County-level cadres 15595. These figures show that job-related crimes such as corruption and bribery are malignant tumors on the healthy body of the party and the country, which must be resolutely eliminated and unremittingly grasped.
(2) the investigation jurisdiction of procuratorial organs
In a country, there are various organs and personnel who have the right to investigate, such as police, pre-trial judges, prosecutors, internal affairs organs, security organs and so on. Therefore, there is a different division of labor for investigation power. For the division of investigation power, some countries are relatively clear, while others are only roughly divided. For example, the cases directly filed by American prosecutors are mainly some particularly serious cases of corruption, bribery, police corruption, white-collar crimes, etc. These cases have an impact on the whole country and even the whole state, and are particularly sensitive to the public. In Germany, prosecutors have the right to investigate all criminal cases. He can investigate in person or entrust the police under his leadership to investigate.
Japanese laws and regulations are different. Japan's criminal procedure law stipulates that "prosecutors can investigate crimes on their own when they think it is necessary", but the law does not clearly define what "when they think it is necessary", and procuratorial organs can flexibly grasp it. According to the actual practice of Japanese procuratorial organs, the cases investigated by procuratorial organs themselves generally include cases of dereliction of duty of civil servants, major corruption cases, major economic crimes of companies, crimes of sabotaging elections, and major and difficult criminal cases that are deeply hidden and difficult for the police to start.
Throughout the world, the powers of procuratorial organs to investigate cases can be seen in four meanings: (1) According to the law, procuratorial organs have greater criminal investigation power; (2)
When necessary, prosecutors can personally investigate special issues or investigate the whole case; (3) Procuratorial organs in most countries only investigate major, especially major and complex cases, or investigate cases of civil servants violating laws and disciplines that are compatible with their legal supervision powers; (4) Cases of corruption and bribery of heads of state and senior officials are investigated by procuratorial organs.
According to the provisions of the Criminal Procedure Law, there are three types of cases directly filed for investigation by procuratorial organs in China, involving 50 specific crimes. Including (1) cases of corruption and bribery. Including corruption, misappropriation of public funds, bribery, bribery, huge property of unknown origin, concealing overseas deposits, privately dividing state-owned assets, privately dividing property, etc. 1 kind of crimes.
(2) Cases of dereliction of duty. Including the crime of abuse of power, dereliction of duty, dereliction of duty leading to the escape of detainees, the crime of state organ staff being cheated in signing and performing contracts, the crime of illegally approving the occupation of land, and the crime of recruiting civil servants and students for personal gain. (3) Criminal cases in which state functionaries use their powers to infringe upon citizens' personal rights and democratic rights. Including: the crime of illegal detention, the crime of illegal search, the crime of extorting a confession by torture, the crime of obtaining evidence by violence, the crime of abusing the supervised person, the crime of retaliation and framing, and the crime of destroying the election.
In addition, the Criminal Procedure Law also stipulates that "if other major criminal cases committed by state functionaries by taking advantage of their functions and powers need to be directly accepted by the people's procuratorate, the people's procuratorate may file a case for investigation upon the decision of the people's procuratorate at or above the provincial level". These cases were initially investigated by public security organs. After a specific procedure, the people's procuratorate can directly file a case for investigation, so as to give full play to the legal supervision function of the people's procuratorate and solve the problems existing in criminal justice, such as not filing a case, not investigating the guilty, and substituting punishment for punishment.
(3) investigation activities and procedures
The investigation activities of procuratorial organs are also called investigation behavior. The investigation activities of procuratorial organs stipulated by different countries are different in details. However, prosecutors have the right to use any investigative means or actions possessed by the police, security guards or investigating judges. In legislation, most countries use the expression "prosecutors enjoy all the powers of the police" to explain the investigation behavior and procedures of prosecutors.
The same is true in China, where the investigation activities and procedures of people's procuratorates are basically the same as those of public security organs. The investigation activities of China's procuratorial organs in criminal proceedings mainly include: interrogating criminal suspects, questioning witnesses and victims, conducting inquests, checking, searching, collecting and detaining physical evidence, documentary evidence, audio-visual materials, inquiring, freezing deposits, remittance, identification, identification and wanted.
Investigation is to take special investigation work and compulsory measures. If used improperly, it will infringe upon citizens' personal freedom and property rights. Therefore, when conducting investigation activities, procuratorial organs should strictly follow the investigation procedures prescribed by law. When interrogating a criminal suspect, there shall be no fewer than two prosecutors; If the criminal suspect is not in custody, the prosecutor shall summon him to the legal place for interrogation and show him the summons notice and relevant documents; The duration of the summons cannot exceed 12 hours, etc.
Second, the right of public prosecution.
The right of public prosecution, also known as the right of appeal. It shows that the procuratorial organ exercising procuratorial power on behalf of the state confirms that the criminal suspect has committed a crime that should be punished by criminal law, and appeals to the court to ask the defendant to exercise judicial power. Specifically, the right of public prosecution is a kind of judicial claim, which requires the national judicial organs to accept cases and conduct trials; The right of public prosecution is also a right of criminal prosecution, which can investigate the criminal responsibility of the defendant, thus curbing the crime and restoring the destroyed legal order.
(1) The public prosecutor's authority to exercise the right of public prosecution
Due to different historical traditions and national conditions, the scope of public prosecution power of prosecutors in different countries is also different. To sum up, it can be divided into two categories:
One is the doctrine of state prosecution, also known as monopoly of prosecution, that is, all criminal cases, no matter how serious, must be prosecuted by procuratorial organs on behalf of the state, otherwise, the judicial organs will not accept them. For example, in Japan, prosecutors do not recognize that people other than prosecutors have the right to initiate public prosecution, nor do they allow the courts to make disciplinary provisions not to initiate public prosecution. In France, crimes are divided into assault on police, misdemeanor and felony. Their provisions on the concept of crime are relatively broad, and the crime of violating the police is equivalent to the illegal act of violating the regulations on administrative penalties for public security in China. Whether it is the crime of assaulting a police officer, a misdemeanor or a felony, if it is necessary to investigate the criminal responsibility of a criminal suspect, the prosecutor should initiate a public prosecution, otherwise the court has no right to try.
The second category is that some criminal cases are prosecuted by prosecutors, and the other part is prosecuted by the victims themselves, that is, private prosecution. In such countries, there are two situations: one is that most criminal cases are prosecuted by prosecutors. Such as Germany, Austria and Denmark. According to German law, crimes without prosecution or trial are prosecuted by the victim, and the rest are prosecuted by the public prosecutor.
The second is that a few criminal cases are prosecuted by prosecutors. Such as Australia, Singapore, Brazil and other countries. According to Australian law, most minor criminal cases are prosecuted by the police, and only serious criminal offences are prosecuted by prosecutors.
Our country belongs to the type of public prosecution and private prosecution, but public prosecution is the main one. There are several types of cases of private prosecution in China: first, crimes that are dealt with after being told, including insulting cases, libel cases, cases of violent interference with freedom of marriage, and cases of abuse. The reason why the law stipulates that prosecutors should not exercise the right of public prosecution in such cases is because such cases mainly occur among family members. China has always had the tradition of "relatives hiding from each other", and it is up to the victim to decide whether to prosecute, so that the victim and the offender can reconcile, which is conducive to resolving contradictions and eliminating potential crimes. The second is a minor criminal case that the victim has evidence to prove. Such cases are relatively simple and do not need special investigation. Victims can completely protect their own interests. Giving the defendant the right to sue the victim can save judicial investment and enable the procuratorial organs to concentrate on cracking down on serious criminal offences. The third is the case that public prosecution turns to private prosecution, that is, the victim has evidence to prove that the defendant has violated his personal and property rights and should be investigated for criminal responsibility according to law, while the public security organ or the people's procuratorate will not investigate the criminal responsibility of the victim. The purpose of transferring such cases, which were originally public prosecutions, to victims for private prosecution is to strengthen the supervision of judicial organs and protect the legitimate rights of victims. In addition to the above-mentioned cases of private prosecution, procuratorial organs exercise the right of public prosecution in other criminal cases, and other organs such as the police have no right of prosecution in criminal cases.
(2) Conditions for procuratorial organs to exercise the right of public prosecution.
First of all, the criminal suspect's behavior has constituted a crime, which is a necessary condition for the procuratorial organs of various countries to prosecute the defendant. Otherwise, the prosecutor's prosecution is considered illegal.
Secondly, there is evidence that the criminal act was committed by the criminal suspect. Different countries have different methods to decide whether the evidence is sufficient or not. Some countries are decided by prosecutors themselves, such as Japan, Germany, Austria and other countries. The public prosecutor will conduct a comprehensive review of all evidence materials, documents and physical evidence, and when he thinks that the reasons are sufficient, he can decide to initiate a public prosecution. In some countries, the grand jury examines whether the evidence is sufficient, such as some States in the United States. Other countries, such as Britain, decide whether the evidence is sufficient through the pre-trial of the pre-trial judge. Before prosecution, the prosecutor should hand over the case to the pre-trial judge for pre-trial. The task of the pre-trial judge is not to determine whether the defendant is guilty, but to examine the evidence of both the prosecution and the defense to confirm whether it meets the evidentiary conditions of public prosecution, so as to ensure the quality of public prosecution. When the pre-trial judge confirms that the evidence can prove the defendant guilty, the prosecutor can prosecute, otherwise the prosecution can be withdrawn. In these countries, it is coordinated with the whole judicial system for the grand jury or the pre-trial judge to decide whether the evidence meets the conditions of public prosecution, because in these countries, prosecutors are lawyers, and lawyers exercise the right of public prosecution, which is subject to supervision and restriction in many aspects. Our country belongs to the first situation, the prosecutor examines the evidence, and if he thinks the evidence is true and sufficient, he has the right to decide to prosecute.
Finally, it is believed that criminal suspects should be investigated for criminal responsibility according to law. A person's behavior constitutes a crime, but not everyone should be investigated for criminal responsibility. All prosecutors in the world have certain discretion whether to prosecute or not. For example, Japanese law stipulates that the public prosecutor may consider it unnecessary or not to prosecute according to the criminal's personality, age and circumstances, the severity of the crime and the performance after the crime. For example, in the United States, if the suspect admits the facts of the crime and pleads guilty to the law, prosecutors and lawyers can reach a "plea bargain", and they can not prosecute or reduce the charges against the suspect. Foreign prosecutors have great discretion to prosecute or not, and some prosecutors decide not to prosecute 70% or 80% of the cases they undertake. Prosecutors in China also have the discretion not to prosecute. According to the provisions of the Criminal Procedure Law, if the criminal suspect commits a minor crime and does not need to be sentenced or exempted from punishment according to the provisions of the Criminal Law, the procuratorial organ may not prosecute. On the one hand, this is to save judicial resources, on the other hand, it is also a way out for criminal suspects with minor criminal circumstances to facilitate their reform.
(3) Appearing in court to support public prosecution
Before the prosecutor decides to send the defendant to court for trial, the relevant materials of the defendant shall be handed over to the court. Some countries, such as Japan, implement the principle of "single prosecution". That is, when the public prosecutor brings a public prosecution, he only submits an indictment in legal format to the court, stating the charges and not collecting relevant evidence materials. Some countries hand over all the files to the court, but not to the trial court, but to the pre-trial court, which conducts pre-trial and then formally conducts the trial, such as Britain. China's 1979 Criminal Procedure Law stipulates that when the procuratorial organ files a public prosecution with the court, all the case materials must be transferred to the court, which makes the judge form a subjective tendency to the case before the trial, and often preconceived in the trial. Some even finalize the case before trial and write a judgment before trial. 1997 passed the criminal procedure law, which eliminated this drawback, and stipulated that after the procuratorial organ filed a public prosecution with the court, it would only submit the indictment, the list of evidence, the list of witnesses, copies of main evidence or photos to the court. This can avoid the judge's preconceptions in the trial.
In the court trial, according to the different status and relationship between the prosecution and the defense in the lawsuit, it can be divided into the litigant trial mode and the authority trial mode. The adversarial trial mode is mainly suitable for common law countries. For example, in court trials in Britain and the United States, prosecutors and defendants have equal status as defense lawyers. Prosecutors produce evidence to prove their claims, lawyers refute them, and judges arbitrate as an independent third party. This model can be described as "the silent judge, the contending party". For some complicated cases, the court will also set up a jury. The members of the jury are composed of people who don't know the law, usually 12. After listening to the evidence and arguments of both sides of the defense, they voted to decide whether the defendant was guilty or not. If they think so, the judge will sentence him. This trial mode allows both the prosecution and the defense to fully explain their reasons, which is fair. But this trial mode also has great disadvantages. Because the jury is made up of people who don't understand the law, they judge the evidence entirely by feeling. According to the law, their judgment is correct and they don't need to give reasons. Therefore, they are easily confused and manipulated by lawyers' superb defense skills. Some people have committed crimes and can be acquitted as long as they have the money to hire a good lawyer.
For example, the Simpson case in the United States, Simpson is an American football star, a famous film actor and very rich. His ex-wife and boyfriend were killed at home, and Simpson was regarded as a major suspect. One of the important evidences is that there is a Simpson glove with the victim's blood on it. Simpson spent $654.38+million to hire the best lawyer in the United States to form "
The dream team "luxury lawyers" defended themselves. Under the superb defense of lawyers, Simpson was acquitted, causing an uproar in the world. The second is the trial mode of authority. This model is mainly suitable for civil law countries, such as Germany and France. In this mode, the judge is the core of the trial. The judge presides over the court, directs the litigation, collects and investigates evidence on his own initiative, and the scope and mode of trial of the case, as well as the choice of evidence, are all decided by the judge. Its characteristics can be summarized as "active judge, passive party". This mode can effectively investigate crimes with high efficiency, but the disadvantage is that it does not take care of the rights of the defendant. Now, the countries that apply these two trial modes are aware of their respective advantages and disadvantages, and both sides are moving closer to each other in order to foster strengths and avoid weaknesses.
The litigation mode stipulated in China's 1979 Criminal Procedure Law has a strong authoritarianism color. In court, judges have all the functions of interrogating defendants and investigating evidence. The judge took the initiative to interrogate the defendant, ask witnesses and experts and produce evidence. In fact, the prosecutor and the judge interrogated the defendant together. The defendant's defender was not taken seriously in court, and even after the trial, the defense was just a formality. 1997 after the revision of the criminal procedure law, the trial mode has been reformed, and the advantages of the adversary trial mode have been absorbed. The presiding judge presides over the trial, strengthens the confrontation between the prosecution and the defense, and the judge judges in the middle, thus mobilizing and giving full play to the enthusiasm of both the prosecution and the defense, increasing the transparency of the trial, and enabling the judge to distinguish right from wrong from the evidence and debate of both sides and judge the case objectively and fairly. A while ago, CCTV broadcasted the trial process of the collapse of Hongqiao in Qijiang, Chongqing. Someone called the TV station and asked the judge why he had been sitting there without saying a word, indicating that he did not understand. In fact, this is the requirement of our new trial mode. Judges should be impartial, and both the prosecution and the defense should actively confront each other. However, the judge does not do nothing in the trial like the judge in the litigation trial mode of common law system. The judge had to preside over the debate and even adjourn for supplementary investigation. This not only reflects the fairness of the trial, but also reflects the efficiency. This trial mode puts forward higher requirements for prosecutors, requiring them to have rich legal knowledge, superb debate skills, improvisation ability and serious and meticulous work attitude. Only by comprehensively improving their own quality can prosecutors be competent to accuse crimes and protect human rights.
Third, the right of supervision.
(A) the characteristics of the prosecutor's supervisory power
The power of supervision is an important authority of the prosecutor. The United Nations "Guidelines on the Role of Prosecutors" mentioned the supervision right of prosecutors in many places. Lenin put legal supervision in the first place to ensure the implementation of the law. He once pointed out: "What is generally used to ensure the implementation of the law? First, supervise the implementation of the law. Second, punish those who do not enforce the law. "
During the Cultural Revolution, a large number of unjust, false and misjudged cases were caused, which was not unrelated to the revocation of procuratorial organs and the lack of law enforcement supervision. The experience of the 50 years since the founding of New China shows that if the legal supervision is strengthened, the legal situation will be better, and there will be fewer violations of law and discipline and misjudged cases;
When legal supervision is weakened, the legal situation will become worse, and justice will often hurt good people or condone bad people.
In China's social life, supervision mechanisms exist widely, such as power supervision, party discipline supervision, social supervision, public opinion supervision, audit supervision and mass supervision. The above forms constitute the supervision mechanism of power operation in China through different subjects, levels and means, but none of them can replace the legal supervision of procuratorial organs as special organs of the state.
First of all, the procuratorial organ is a specialized organ for legal supervision. China's procuratorial organs are not simply public prosecution organs, nor judicial administrative organs, but legal supervision organs with higher legal status and more legal powers according to law. Secondly, the supervision of procuratorial organs is more authoritative. On the one hand, the procuratorial organ is produced by the people's congress, the organ of state power, and is responsible for it. On the other hand, it is the power of supervision endowed by the Constitution, which stipulates that procuratorial organs shall exercise their power of supervision independently and shall not be interfered by any organ or individual. Finally, the legal supervision of procuratorial organs is guaranteed by the state's coercive power. Procuratorial organs can ensure the effectiveness of legal supervision by exercising judicial punishment rights such as investigation, examination, arrest and prosecution. These characteristics of legal supervision by procuratorial organs are not possessed by other organs.
(2) The way in which prosecutors exercise their supervisory power.
The legal supervision of procuratorial organs is to supervise every specific case or act, prosecute serious illegal and criminal acts, urge fair judicial acts and ensure fair law enforcement. Prosecutors exercise their supervisory power in the following ways:
1. Supervise the law enforcement of state functionaries and investigate duty crimes such as corruption, bribery and dereliction of duty.
2. The right to suggest. If the procuratorial organ finds that someone violates the law but does not constitute a crime, it may suggest that the unit to which it belongs give punishment.
3. Right of correction. If a prosecutor finds that a police officer or a judge violates legal procedures when handling a case, the procuratorial organ may suggest that the public security organ or the court should correct it.
4. Right to protest. If the public prosecutor finds that the criminal, civil, economic and administrative judgments made by the court are wrong, he has the right to lodge a protest, and the court with jurisdiction must accept it and re-form a collegiate bench for trial.
(three) the contents of the prosecutor's supervisory power
1. Supervision over the implementation of criminal law
The criminal legal supervision of procuratorial organs is mainly carried out by investigating crimes and safeguarding human rights, involving all aspects of criminal proceedings. For example, in China, if the public security organ does not file a case for investigation, the procuratorial organ has the right to ask the public security organ to file a case; If a major criminal case committed by a state functionary by taking advantage of his power is not under the jurisdiction of the people's procuratorate and needs to be directly accepted by the people's procuratorate, it may be put on file for investigation upon the decision of the people's procuratorate at or above the provincial level; Procuratorial organs have the right to ask public security organs to correct or investigate and deal with illegal acts of extorting confessions by torture in investigation; Procuratorial organs have the right to put forward corrective opinions on violations of litigation procedures in the trial of the people's court; The procuratorial organ has the right to lodge a protest against the wrong judgment or ruling of the people's court, and the higher court must accept it; If prisons, detention centers and other institutions that execute penalties make mistakes in their execution activities, commutation and parole activities, procuratorial organs have the right to put forward rectification opinions.
2. Supervise the implementation of civil law, economic law and administrative law
If a people's procuratorate finds that a legally effective civil, economic or administrative judgment or ruling of the people's court violates the provisions of laws and regulations, it has the right to lodge a protest in accordance with the procedure of trial supervision. In China, the supervision of civil, economic and administrative litigation can only take the form of protest, which is still a weak link, because the law stipulates the principle of comparison, which is the "post supervision" after the judgment and ruling take effect.