Study On Chinese Procuratorial Power Allocation In The Constitutional Perspective

The allocation of procuratorial power is an important issue.If the pure theoretical research of procuratorial power is static,the research on the allocation of procuratorial power should be dynamic.It is of great significance to enrich and deepen the theory of procuratorial power allocation.However,the allocation of prosecutorial power is indeed the lifeline of the existence and development of procuratorial system.Procuratorial power is a complex type of power,especially in the configuration of the problem in the change.Not only may it face the erosion of other external powers,but also the embarrassment of internal power.Especially with the publishing of NPC’s "Pilot Decision on Supervision"and the disclosure of the "Supervision Law"(draft),the right to investigation and prevention of job-related crimes in the procuratorial power has been transferred,and the rhythm of promoting the reform of the supervision system has been gradually accelerated.This causes great impact on prosecutorial power.The procuratorial power of our country is facing unprecedented challenges.However,looking back on the path of· China’s procuratorial power development,it is inevitable that there are confusions and regrets.At the beginning of the procuratorial power of our country,it is follows the pattern of "big procuratorial".With the passage of time,the power was overall weakening.This is an important reason for the qualitative and positioning the doubt.It is important to observe the procuratorial system in the world,including its property definition,positioning and specific categories powers and responsibilities of different configurations.It is necessary to decide what is the general law and principle of procuratorial power,and what objectives,principles and rules should be set up to allocate procuratorial power.This is a very complex subject.Constitutionalism is the crystallization of the wisdom of human civilization,it combines the basic law of power interaction,and contains the basic principles to be followed on the basis of protection of human rights.The general rule of constitutionalism is the continuous division and balance of power,and the differentiation is the norm.To judge the degree of maturity of a constitutional state is to observe the degree of differentiation and balance of power.According to the principles of power allocation under the system of people’s congress,the definition and orientation of procuratorial power are the pre-existing problems in the research on the configuration of prosecutorial power(narrow sense).In other words,this is the first level of procuratorial power allocation.Therefore,through the perspective of constitutionalism of procuratorial power configuration,methods can be found in the constitutional law to determine the configuration of the target,and to guide the prosecutorial power,orientation and specific power allocation activities,and to realize the scientific and reasonable and proper allocation of procuratorial power.In order to prove the above proposition,the author uses historical analysis,comparative analysis,systematic analysis and other research methods on first-hand information,and there are six chapters:The first chapter is the introduction of the whole research including the background,significance,research methods and research status.In the people’s Congress system background basis,the procuratorial agency is defined as for legal supervision,however,this is not the end of the qualitative and positioning.Observeing the other countries in the world,the status of the allocation of prosecutorial power,qualitative and other issues have not affected the specific allocation of prosecutorial power.This prompted us to find solutions by means of comparative analysis,historical analysis and system analysis.The second chapter discusses the relationship between procuratorial power,procuratorial power and constitutionalism.Although there are many differences between countries and the nature of the different history,modern procuratorial power is a representative of the national prosecuting authority,until the prosecutorial power is developed into a comprehensive supervision.The allocation of procuratorial power is divided into two types:narrow procuratorial power configuration refers only to the procuratorial power in the procuratorial organs of the internal configuration,and generalized procuratorial power configuration includes prosecutorial power orientation and the external configuration of comprehensive theory and practice.It is closely related to the separation of powers,check balances,and the protection of human rights and the value of legal system.The third chapter discusses the theoretical and practical challenges faced by the allocation of procuratorial power.Procuratorial power itself is in a trend of weakening,not only the continuation of the performance of the exclusion of judicial power,but also for the prosecution of its stripping.The overall allocation of procuratorial power is external imbalance and internal weight loss.The external imbalance is mainly manifested in the procuratorial power is relatively independent,general supervision power loss,and indeed the balance mechanism;internal weight loss is mainly manifested in the procuratorial functions,do not ignore inertia melting system and local coherence and coordination.The fourth chapter analyzes the reasons for the above problems.The main reason is divided into three aspects:one is the nature of the procuratorial power is not clear,and this theory and reference frame selection errors;two is not allowed to grasp the status of prosecutorial power itself because the power system is not clear;the three is that we the lack of systematic theoretical guidance,goals,principles and rules.The fifth chapter tries to find out the basic principle of the allocation of procuratorial power.Through observing the other countries in the world,we can find and summarize the law of the procuratorial power allocation,which can help us to refine the general principle of the constitutional power of the procuratorial power allocation.And this principle is the general principle of constitutionalism.The power in the constitutional framework of continuous differentiation,integration and balance.We can establish the original legal supervision theory and the process of legal supervision theory,the prosecutorial power as the original power of legal supervision,legal supervision right positioning process.The sixth chapter based on the general principle and specific summary of constitutionalism,established between the implementation of constitutional right of legal supervision,and other qualitative balance of power,the prosecutorial power of internal equilibrium configuration.In addition to the following summary of procuratorial power shall be configurated with constitutional principle,balance principle,the integration principles and procedures the principle of due.Through the guidance of these objectives,the principles,and the specific rules,the author attempts to do a comprehensive and systematic external configuration and internal configuration of procuratorial power.In particular,according to the relevant provisions of the "Supervision Law "(Draft),the article proposes measures to balance prosecutorial power and supervisory power.From a variety of aspects of the optimization of the allocation of the power of public prosecution,the right to supervise the investigation,the allocation of the right to protest and the allocation of the right to supervise the implementation.At the same time,it is arranged in the specific procuratorial agencies.At this point,the basic completion of the procuratorial power of a comprehensive,systematic and scientific configuration was fulfilled.