| my country’s procuratorial organs began to implement judicial reform with the responsibility system as the core in 2015.In 2017,the duty crime investigation department was transferred to the supervisory committee.How to re-determine the legal attributes,functional positioning and power allocation of the procuratorial organ is worth thinking about.At the same time,the "superimposed effect" brought about by the procuratorial staff system,trial-centered,and lenient admissions and punishments,also puts forward new requirements on the ability and methods of procuratorial organs to perform their duties.In the new period,the procuratorial organs urgently need to optimize the organization and function configuration,and build a complete,scientific and reasonable procuratorial function system.Focusing on the two core procuratorial powers,the power to approve arrest and the power to prosecute,the procuratorial organs,based on the background of the new era,once again chose to exercise the two powers in an integrated manner.Whether this is a retrogression in history or a beneficial choice under the "time change of the world" is full of controversy in the theoretical and practical circles.Moreover,with the final implementation of the reform from top to bottom,the debate here has not ceased.It has evolved into a situation in which standpoints determine opinions and opinions determine arguments.Sorting out the opinions of both parties in the dispute is not only the precipitation of historical factors,but also the confrontation of new theories.The prolonged debate alone is enough to show that the issue is worthy of a comprehensive and systematic study.Therefore,this article returns to the origin of the problem,and studies the "metaproblem" of the relationship between arrest and prosecution.While trying to clarify the current disputes,it also tries to construct a general theory of the allocation of arrest and litigation relations,and make suggestions for the further optimization of my country’s arrest and litigation relations in the future.In addition to the introduction,this article is divided into five chapters with approximately 220,000 words.The first chapter is "Overview of the Arrest-Prosecution Relationship",which mainly includes three aspects: First,it is a separate interpretation of "arrest" and "prosecution" in the arrest-prosecution relationship.In view of the practical nature of the issue of the relationship between arrest and prosecution,the definition of the constituent elements should be limited,so as to ensure the pertinence of the research object.In order to facilitate the comparative study of the relationship between arrest and prosecution inside and outside the region,the "arrest" of the arrest and prosecution relationship can basically be equated with the detention of a country outside the region.According to China’s legislative provisions,"catching" has the characteristics of multi-stage operation and diversity of power content.From the perspective of the study of the relationship between arrest and prosecution,the operational stage of "arrest" is limited to the pre-trial stage,and the content of the power of "arrest" is limited to the right to review and approve arrest.At the subject level,the "litigation" of the arrest and prosecution relationship shall be concentrated as the litigation of the procuratorial organs,and shall not include the private prosecution of citizens or the litigation of other organs or organizations.According to China’s current legislative provisions,the "litigation" of procuratorial organs includes both "litigation" in the pre-trial stage and "litigation" in the trial stage,and at the same time,the content of the power of "litigation" is also diversified.Based on the model judgment of the reform of the arrest-prosecution relationship in China and the goal orientation of the theoretical proposition research,this paper interprets "litigation" as both the "litigation" of the pre-trial stage and the "litigation" of the trial stage.As far as the content of the power of the public prosecution power is concerned,it basically includes all the power content,but the research focuses on the review of the right to prosecute and the right to initiate public prosecution.The second is the connotation and characteristics of the arrest and prosecution relationship.The connotation of the arrest and prosecution relationship can be determined from two levels,the narrow sense of the arrest and prosecution relationship refers to the relationship between the right to approve the arrest and the right to prosecute,which is the most intuitive and basic relationship between the arrest and prosecution relationship,and is the premise that leads to the mutual relationship between "catch" and "lawsuit" in other aspects.The generalized arrest and prosecution relationship includes both the narrow arrest and prosecution relationship,the allocation relationship between the right to approve arrest and the right of public prosecution at the level of procuratorial functions,and the allocation relationship at the level of procuratorial organization.This paper takes a broad perspective.The arrest and prosecution relationship is a multi-level relationship configuration with constitutional significance,and is an evolving concept with the characteristics of constitutionality,multi-facetedness and variability.The constitutional characteristics are due to the fact that China’s right to approve arrests is stipulated in the Constitution,the positioning of procuratorial organs is clearly defined by the Constitution,and the relationship between the three organs of public security,procuratorate and law is established by the Constitution.The multi-faceted characteristics stem from the practice of China’s procuratorial organs in reforming the arrest-prosecution relationship,the different configurations of the arrest-prosecution relationship inside and outside the region,and the multiple directions for the future development of the arrest-prosecution relationship.The variability is due to the nature of the "relationship" itself,the susceptibility of the arrest-prosecution relationship to external factors,and the practice of adjusting the extraterritorial arrest-prosecution relationship.The third is the division of types of arrest and prosecution relationships.Taking the content scope of the arrest-prosecution relationship as the standard,the arrest-prosecution relationship can be divided into the configuration relationship between "arrest" and "litigation" at the level of procuratorial functions,the operational relationship between "arrest" and "prosecution" at the level of procuratorial authority,and the merger and separation relationship between "arrest" and "litigation" at the level of procuratorial organization.The second chapter is "Comparative Investigation of the Relationship between Arrest and Prosecution",which summarizes the following characteristics by comparing the main configuration,conditions and standards,operation and regulation of "catch" and "litigation" in common law countries and civil law countries,and summarizes the following characteristics:First,the configuration of "catch" and "litigation" subjects is separated at the national level,and the independent court system exercises the right to "catch",and the two major legal systems have different concepts of allocating two rights to different subjects.Common law countries are mainly based on the protection of rights,and civil law countries are mainly based on power constraints.Second,"arrest" and "litigation" are isolated from each other at the level of power operation,and in the process of operation,the two powers will have an improper interest relationship in terms of the unfair impact of "litigation" on "arrest" and the definite impact of "arrest" on "litigation".The two major legal systems mainly isolate the improper interests of the operation of the two powers by allocating the two powers to different subjects and by setting up hierarchical proof standards for the two powers.Third,"arrest" and "prosecution" are allocated to different criminal procedure functions,"arrest" is independently allocated to judicial review functions,and "litigation" is independently allocated to prosecution functions.Fourth,the application of "catch" and "litigation" control is a general principle,and the two major legal systems generally control the application of the two rights through the design of systems and mechanisms.The control measures of "arrest" mainly include the legalization of the grounds for arrest,the openness of the review procedure,and the diversity of remedies.The control measures of "prosecution" are mainly to give the procuratorate extensive prosecutorial discretion and a wealth of alternative measures for prosecution.Fifth,the professional development direction of "arrest" and "litigation" is different,"arrest" is still based on "professionalization of business" as the main direction,and "litigation" is gradually moving towards "case specialization".Sixth,there is a difference between "arrest" and "litigation" in controlling investigations,"litigation" is the core power of whole-process investigation control,and "arrest" is only adjudicatory power in investigation control.Seventh,the regulatory mechanisms of "arrest" and "prosecution" are both internal and external,and in order to avoid the abuse of the two powers,the two major legal systems have built effective regulatory means inside and outside the procuratorial system.Through the comparison of the arrest and prosecution relationship between the two major legal systems,the following enlightenment is obtained: First,the allocation of the arrest and prosecution relationship must meet the requirements of rights protection and power constraints.Second,the isolation of "arrest" and "litigation" is a general principle of the allocation of the relationship between arrest and prosecution.Third,how to control investigation between "arrest" and "prosecution" is an important issue in the allocation of the relationship between arrest and prosecution.Fourth,the application of "arrest" and "litigation" control is the value pursuit of the allocation of the arrest and prosecution relationship.The third chapter is "The Historical Evolution of China’s Arrest and Prosecution Relations",which mainly includes three aspects: First,the arrest and prosecution relationship from the founding of the People’s Republic of China to the "Great Criminal Prosecution" period is "the integration of arrest and prosecution".At this stage,since the construction of China’s procuratorial system comes from the reference of the Soviet procuratorial system,the constitution of China’s procuratorial organs is positioned as a legal supervision organ.Due to the relationship between the positioning of procuratorial organs and the nature of procuratorial power,the nature of procuratorial power is legal supervision.And because the setting of procuratorial functions is often adapted to the nature of procuratorial powers,procuratorial functions are also "one yuan" for legal supervision."Arrest" and "prosecution" are simultaneously allocated to legal supervision functions at the level of procuratorial functions.Since both powers are allocated to the function of legal supervision,both powers are simultaneously allocated to the procuratorate as the legal supervisory organ.At the level of the procuratorial organization,it is also placed within the same procuratorial body.Second,the relationship between 1996 and 2015 was "separation of arrest and prosecution".At this stage,the legal supervision position of China’s procuratorial organs has been questioned,the nature of procuratorial power is also facing the impact of the "separation of three powers" theory outside the region,and China’s procuratorial function has moved from the "one yuan" of legal supervision to the "duality" of legal supervision and public prosecution function."Arrest" and "prosecution" are mainly allocated to legal supervision functions and public prosecution functions at the level of procuratorial functions.With the diversity of the allocation of powers of procuratorial organs and the introduction of the concept of power constraints,procuratorial organs as legal supervision organs also need to be supervised,and internal supervision of procuratorial organs has risen.The two procuratorial functions and powers of "arrest" and "prosecution" are manifested as mutual supervision at the level of power operation,and have become an important component of the procuratorial internal supervision system.The separation of the allocation of "arrest" and "prosecution" at the level of procuratorial functions,as well as the mutual supervision of the operation level of procuratorial functions,have also led to the separation of the two powers from the same procuratorial internal organ at the level of procuratorial organization.Third,the relationship between arrest and prosecution since 2015 is "integration of arrest and prosecution".At this stage,there are multiple views on the positioning and nature of the procuratorial power,and multiple views coexist.Affected by the trial-centered and supervision system reform,procuratorial organs have strengthened the consistency of "arrest" and "prosecution" in the allocation of legal supervision functions and public prosecution functions in order to strengthen the functions of public prosecution and legal supervision.In order to ensure the realization of the two procuratorial functions,"arrest" and "prosecution" should strengthen coordination at the level of power operation,so that the relationship between procuratorial functions and powers should be expressed as interconnected relations.In order to ensure the limitedness of the connection to the greatest extent,"arrest" and "prosecution" not only return to the same procuratorial internal organ at the level of procuratorial organization,but are also allocated to the same case-handling subject or case-handling organization at the same time.The fourth chapter is "Analysis of the Current Situation of China’s Arrest-Prosecution Relationship",which mainly includes three aspects: First,the effectiveness of the reform of the arrest-prosecution relationship.The reform of "integration of arrest and prosecution" has achieved four results: it has promoted the improvement of procuratorial case-handling efficiency and alleviated the pressure on the allocation of judicial resources,built a normalized procuratorial guidance investigation mechanism to improve the quality of investigation,grasped the conditions of arrest entities more strictly to a certain extent,reduced the arrest rate,and the advantages of specialization in similar cases have also been reflected.The second is the issue of reforming the relationship between arrest and prosecution.There are four problems in the reform of "integration of arrest and prosecution" : First,the investigation control mechanism has not yet been established,and the functional allocation of China’s procuratorial organs is diverse,so it is necessary to ensure that all functions are fully realized and to control the investigation in an all-round way.To a certain extent,the reform of "integration of arrest and prosecution" has strengthened the guidance of public prosecution to investigation,but there are deficiencies in the guidance method,procedure and effect.The function of investigation and supervision has weakened to a certain extent,which is manifested in the fact that the scope of supervision has not been expanded,the neutrality of supervision is questionable,the supervision time is compressed,and the effectiveness of supervision is difficult to guarantee.The dysfunction of the function of judicial review of investigation is manifested in the loss of neutrality,independence,functional alienation,and lack of litigation in the review.The lack of functions of investigative restraint is manifested in the lack of restrictions on case filing,the lack of restrictions on compulsory investigation measures,and the lack of restrictions on evidence collection.Second,the arrest and prosecution supervision mechanism has not been implemented,which is manifested in the fact that the proportion of no-prosecution after arrest has dropped significantly,and it is difficult for the joint meeting of procurators to exert its effect due to differences in procurators’ understanding,arbitrariness in convening,and lack of effectiveness in discussion.Third,the policy of less arrest and cautious prosecution has not been implemented,which is manifested in the high level of arrest rate,the alienation of arrest functions,and the failure of prosecution filtering functions.Fourth,the mechanism for handling arrest and prosecution cases is not balanced,which is reflected in the uneven time for arrest and prosecution,the uneven pace of arrest and prosecution,and the unbalanced ability to handle arrest and prosecution.The third is the analysis of the causes of the reform of the arrest-prosecution relationship,including the integration of the investigation and prosecution relationship to highlight the public prosecution function as the center,the integration of procuratorial functions and powers to find commonalities as the center,and the integration of procuratorial organizations to improve efficiency as the center.The fifth chapter is "The Path to Perfection of China’s Arrest and Prosecution Relationship",which mainly includes two aspects: First,the ideas and methods for improving the relationship between arrest and prosecution.The first is the position and principle of improving the arrest-prosecution relationship,and the basic position on improving the arrest-prosecution relationship should include basing itself on the current provisions of the Constitution,taking the implementation of "less arrest and cautious prosecution" as the goal-oriented,understanding the reasonable needs of procuratorial control and investigation,and adhering to the bottom line of the full neutral exercise of approval and arrest.The basic principles of improving the relationship between arrest and prosecution include the theory of the compound nature of procuratorial power,the theory of power control,and the theory of value level.The second is the goal and way to improve the arrest and prosecution relationship,and the goal of improving the arrest and prosecution relationship includes the realization of procedural justice,substantive justice,and human rights protection.The ways to improve the relationship between arrest and prosecution include taking the separation of arrest and prosecution as the basic direction,drawing on the experience of extraterritorial rule of law countries,and combining top-level design with local pilots.The second is the progressive design of improving the relationship between arrest and prosecution,which divides the improvement of China’s arrest and prosecution relationship into two goals: short-term and long-term.The "near-term" design of a sound relationship between arrest and prosecution should strengthen the function of investigation supervision,continue to deepen the procedural reform of arrest procedures,implement the criminal policy of reducing arrests and cautious prosecutions,reform unreasonable performance appraisals,improve internal and external supervision and restraint mechanisms,and balance the pace of case handling.The "long-term" design of a perfect arrest-prosecution relationship should take the type of case as an important basis for dividing the arrest-prosecution relationship,and in cases where a sentence of less than three years of imprisonment may be sentenced to fixed-term imprisonment,the setting of combining arrest and prosecution shall be adopted,and the rest of the cases shall adopt the setting of separate arrest and prosecution.Allocating the right of "arrest" to the public prosecution function and the legal supervision function will lead to doubts about the materialization,neutrality and independence of the arrest review,so the arrest should be appropriately returned to the judicial review function.Establish procuratorial control and investigation mechanisms,through procuratorial restraint of investigation,guidance of investigation,and supervision of investigation,and strengthen investigation control from the three dimensions of entrance,intervention,and guarantee.Among them,procuratorial restraint of investigation is a reasonable way for procuratorial organs to intervene in investigation,procuratorial guidance of investigation has become the main way for procuratorial organs to control investigation,and procuratorial supervision and investigation has become the effective guarantee for procuratorial organs to control investigation. |
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