The Research Of The Power To Protest In China

The research topic of this article is power to protest in China, the article is divided into seven parts.In the introduction part, first it makes the simple introduction about the origin of the selected topic. Current, the appeal cases related procuratorial organs and the people's court lead to great pressure to the social harmony and stability. Meanwhile, judicial credibility is increasingly landslide, trying to through the court is unlikely to resolve complaints within itself, seeking external way to strengthen the supervision of jurisdiction when possible path. The procuratorial supervision is preferred, in which the power to protest is the main force. However, in practice the operation of the right to protest is not ideal.Therefore, selecting to investigate the protest power is help to perfect the protest power theory to study system, help to improve the supervision of the state power system, help to respond to the demands of society for right relief and security rights. This paper comprehensively adopted semantic analysis, historical analysis, comparative analysis, value analysis method, and empirical analysis.The first Chapter studies the power to protest of ontology. First, it makes a comb the historical evolution of counterappeal system, trying to know the evolution process of the development of the power to protest, and answer the question of it come from. In this paper, it emphasis on the Anglo-American law system of Britain, the United States, and the continental law system of France, Germany and Japan, and the former Soviet union, the Russian national protest system. As far as the development of Chinese protest system view, probably can be divided into the origin, prototype, germination period and formal development of four stages. Second, clarifying the concept and connotation, legal origin and nature of the power to protest, which answer the question of it what. In this paper, the power to protest means that Procuratorial organs found or thought the effective judgment ruling by the people's court is wrong which conforms to the provisions of the legal supervision, and procuratorial organs protested to the people's court according to law to make a new trial. In our courtary,<The constitution>,<The organic law of the people's court> and <the organic law of the people's procuratorate> and so on are the power to protest's legal source. The supervision, relief and procedure are the nature of the power to protest. The second chapter studies the power to protest of foundation theory.Legitimacy of power and power of validity and orthodoxy is closely related, the power to protest as a basic form in the litigation of state power has to ask why the as. This chapter makes discussion from legal principles, ideas and cultural traditions and its realistic background.In terms of legal principles, Lenin's ideas of legal supervision and public power relief theory are supported by the kernel spirit of the power to protest existence. In terms of traditional ideology and culture, China's judicial final loss of traditional concept and "attach great importance to public and look down on private" of the traditional legal culture are in accordance with the power to protest, In terms of reality, the abuse of court jurisdiction, judicial personnel quality and the specialized legal supervision lack of counterappeal right of existence of the reality.The third chapter studies the power to protest of relationship theory. Protest is essentially a inspection method in the field of litigation supervision relationship, is the procuratorial organ by the protest supervision right of court trial in accordance with the relationship, but in practice not only involve the procuratorial organs, the courts, and sometimes the relationship between the administrative organs, parties, etc. From lateral view, the power to protest about judicial power is a kind of parallel external supervision, the supervision is not braking, hampered by judicial power, is not in place of the court hearing the case, but only the procedural supervision. At the same time judicial organ has the restriction of procuratorial organ, between the two is the coordination and restriction, both supervision and support. The power to protest and the relationship of executive power only occur in the procuratorial organs to supervise the effective administrative judgment or written order for the protest, the supervision is hysteresis, indirect and not the end. From the longitudinal view, power to protest with the nature of prosecutorial power is legal supervision, the protest is one of the important powers of procuratorial authority, prosecutorial power is the superior concept. The power to protest and public prosecution right is different in essential attribute, the protest power is legal supervision, public prosecution is not supervision but right to appeal, both are different in effect of the object, exercise the body. Potest power and criminal criminal protest right in theoretical basis, aim, function object, mention conditions are different, the former belongs to the category of legal supervision, the latter is just on the semantic complied with "protest", in fact belong to the category of appeal. In the relationship bewteew the power to protest and civil appeal right is that the powet to protest is a kind of litigation and relief to civil appeal right, and is unified with respecting the autonomy of the parties, it has independent position and keep neutral in the exercise.The fourth chapter and the fifth chapter study the protest power to circulate. Among them the fourth chapter mainly reflects on the current operation condition of the power to protest. In general, the running effect of the power to protest is not ideal, protested cases total amount is less and the quality is not high. For example, the scope provisions of the power to protest is not clear, the exercising conditions of the power to protest is not specific, the power to protest too concentration, and so on. All this problems due to the three big questions in design of the power to protest in in theory, namely having must rectify a mistake can be precondition of the protest power, the power to protest impact on judicial independence, the power to protest is to shake the referee of res judicata.The fifth chapter mainly puts forward the perfect proposal to all kinds of problem.From the macro level, trying to establish the overall value target of the operation of the potest power's process and results, change affecting the operation of potest power's bad ideas. From the medium level, the protest power operation should follow the principle of limited supervision, neutrality principle and principle of ultimacy. From the micro level, it's nessary to strengthen the procuratorial organs own construction, perfect the procedural and the relevant supporting mechanisms of the power to protest.In the conclusion part, make a summary. The research in the power to protest is the fist question to build the protest system with Chinese characteristics. Comprehensive understanding what is power to protest, protest power how to position, the power to protest how legitimate, the power to protest how operation as well as the power to protest the basic theoretical issues, such as how to perfect will to build and improve the system of protest provide a solid theoretical foundation, at the same time, with further understanding against litigation, counterappeal system will achieve all aspects of the reform and development.