First of all, there are different ways to choose prosecutors. Prosecutors in the common law system generally come from lawyers, while prosecutors in the civil law system are specially trained by the state as "legal persons" (or lawyers, including judges, prosecutors and lawyers). Law school graduates can freely choose whether to be prosecutors or judges and lawyers after passing the 1 transfer 2 judicial examination and a certain period of judicial practice.
Second, the security system and social status of prosecutors are different. Prosecutors in the civil law system enjoy similar status, economy and privilege protection as judges, because prosecutors in the civil law system have the same status as judges, commonly known as prosecutors as "permanent judges" and judges as "current judges"; Prosecutors in the common law system are managed as ordinary administrators. Prosecutors in France and Germany implement separate salary scales and standards. Prosecutors and judges have the same salary scale, and the starting point of salary is equivalent to higher-level civil servants. France stipulates that the retirement age of prosecutors is 65 years old and that of ordinary civil servants is 60 years old. Accordingly, the social status of prosecutors in civil law system is higher than that in common law system.
Third, the procedures for stabilizing the ranks of prosecutors are different. Prosecutors in the civil law system are trained full-time, with good security system and high social status, so the procuratorial team is relatively stable; However, prosecutors in the common law system are not. Although the United Kingdom has established a unified procuratorial organization since 1986, for cases that prosecutors decide to prosecute, they can only appear in the magistrate's court to support public prosecution, and barristers must be hired to appear in the criminal court and the high court to support public prosecution, so the prosecutors who appear in court are not fixed. (Note: Report on Investigation of British Criminal Procedure, 1988 China Criminal Procedure Investigation Team, p. 15. The mobility of American prosecutors is also great for two reasons: First, the salary and social status of American prosecutors are lower than that of judges and private lawyers, and procuratorial work is unattractive. Prosecutors often only regard procuratorial work as a "springboard" to accumulate experience and capital in other jobs in the future, rather than taking it as a permanent career; Second, the term of office of American prosecutors is only four years, and they advance and retreat with political parties; Every new dean takes office, he will re-appoint his own party member as the prosecutor, replacing the original prosecutor, and make a "big change" in the whole procuratorial system, thus greatly affecting the stability of the procuratorial team.
Second, the analysis of the reasons for the differences between the procuratorial organs of the two legal systems.
The formation of everything has its historical and realistic basis, and so does the formation of the differences between the procuratorial organs of the two legal systems. To sum up, there are mainly the following aspects.
The first is the reason for the development of the procuratorial system. There are three views on where the procuratorial system originated: one is that it originated in France; The second is that it originated in Britain; Thirdly, the author thinks that the contemporary procuratorial system has two different origins (except China): the procuratorial system in common law countries originated in Britain, and the procuratorial system in civil law countries originated in France. The author thinks that the third view is more accurate. The emergence and development of procuratorial system is quite complicated. To sum up, among the common law countries, the United States was mainly influenced by Britain in the early stage (and also by other countries), and Britain was mainly influenced by the United States in the later stage, especially the 1985 Crime Prosecution Act of Britain was greatly influenced by the United States. The procuratorial system of civil law countries also has similar interaction. In addition, the two legal systems also learn from each other.
The procuratorial system in France sprouted in the12nd century. At that time, the French lords had great power, and the king's power was greatly limited. In order to strengthen centralization, one of the measures taken by the king was to set up an agent. The king's agent is responsible for supervising the execution of the king's laws on the land of local lords while handling private affairs for the king. This king's agent is the future prosecutor. In this sense, in France, prosecutors have assumed legal supervision functions similar to those in modern times since they came into being. /kloc-from the middle of 0/3rd century to the beginning of 0/5th century, French law clearly stipulated that the king's agent should undertake the following supervision matters: (1) It is reasonable to supervise the payment of ransom on behalf of the king; Supervise the confiscation of property and the execution of other judgments. /kloc-after the 0/5th century, prosecutors are not only responsible for the investigation and prosecution of criminal cases, but also exercise the following supervisory powers: (1) supervise the initiation and conduct of litigation; Supervise whether local officials are conscientious; Ensure the revenue of the state treasury; Check weights and measures; Determine the price of bread; Monitor libraries and law universities. (Note: Cheng Rongbin's Theory and Practice of Procuratorial System, Renmin University of China Press, 1990, p. 18-20. ) Different from France, from the day of its birth, British prosecutors only acted as legal agents of the king, provided legal advice to the king, participated in litigation, and did not undertake legal supervision duties. Since Britain was conquered by Duke William in 1066, it has achieved political unification, and the subsequent task of legal unification mainly depends on the judges of the royal court established by the king of England to conduct circuit trials and realize it through case law. In this way, the king's agent does not need to undertake the task of supervising the unified implementation of the law. After the establishment of the Royal Court, it is reasonable that the prosecutor who was not established until the 3rd century of/kloc-was only the king's legal adviser and did not assume the responsibility of legal supervision.
Secondly, it comes from different legal sources. In civil law countries whose legal source is statute law, precedents have no legal effect in law and litigation theory, and judges who have no law-making function can only strictly apply statute law according to the facts. Therefore, it is inevitable for prosecutors to shoulder the responsibility of ensuring the unified implementation of statute law in the whole country, and it is necessary to give prosecutors legal supervision power to unify the legal system of statute law countries. In common law countries, the legal system is created and developed by judges, and judges with law-making functions have always had a high social status in common law countries. Under the domination of the concept of judicial supremacy, the supreme authority of judges in the judiciary is not allowed to be supervised by superiors. The concept of procuratorial supervision conflicts with the lofty social status of such judges and cannot have a basis for survival.
Third, the differences in litigation modes. Throughout the litigation system of modern countries, although prosecutors undertake the public prosecution function in the court trial stage, due to different litigation modes, there are naturally differences in the way they perform the function of supporting public prosecution, and the status of prosecutors as prosecutors in court proceedings is also different. Anglo-American countries implement the adversary system, and prosecutors participate in the proceedings as parties, and both the prosecution and the defense have equal status in court proceedings. In the civil law system, the principle of authoritarianism is implemented. Not only are judges not passive arbitrators in court, but prosecutors are also representatives of procuratorial organs who perform various litigation functions stipulated by law in court. The prosecutor is both a prosecutor and a legal supervisor in court. As stipulated in the German Criminal Procedure Law, the public prosecutor "acts as a state prosecutor in the court trial stage, and at the same time supervises whether the trial procedure is legal" (Note: Wang Yizhen's Foreign Criminal Procedure Law, Peking University Publishing House, 1994 edition, p. 336. )。
This difference in the litigation status of prosecutors in common law system and civil law system determines that in common law system countries, prosecutors, as parties, are only responsible for presenting the facts of their own accusations and the evidence to prove the facts in court, so as to achieve the purpose of convicting the defendant, and do not undertake the responsibility of presenting the facts and evidence beneficial to the defense. In civil law countries, prosecutors should not only provide evidence that is not conducive to the defendant's guilt and severity, but also consider favorable evidence that is not conducive to the defendant's innocence, so that the court can make a fair judgment. For example, the German procuratorate "has the responsibility to supervise the legality of the judgment. It is mainly reflected in two aspects: on the one hand, in the stage of case review and prosecution, the prosecutor is not only the prosecutor who accuses the defendant, but also the protector of the unified and correct implementation of national laws, and the prosecutor has the obligation to comprehensively collect evidence, including evidence that proves the defendant's guilt and innocence. The law requires prosecutors to abide by the principle of objectivity and neutrality, rather than confronting the defendant. Therefore, some people think that the procuratorial organ is a neutral institution in the relationship between the procuratorial organ and the defendant. On the other hand, during the trial of the case, the prosecutor has the obligation to supervise the legality of the evidence and its determination, the legality and fairness of the judgment. " (Note: China Procuratorial System, People's Procuratorate, 1994, 1 1, p. 55. )