Research On Prosecutorial Power Activism

The expansion of the power of procuratorial power and active intervention in social management have become common practices in some countries in the world today.To this end,we can refer to the viewpoint of “activist criminal law view” in the field of criminal law,introduce “activism” into the field of procuratorial power,and construct a theory of prosecutorial power activism.Prosecutorial power activism is not a term created completely arbitrarily in this article,but an inductive summary based on the specific implementation and practice of procuratorial power in the legislative and judicial fields.The study of prosecutorial power activism is conducive to re-examining it from the legislative and judicial levels,and formulating reasonable measures to restrain its activism,and at the same time,it can actively explore the possibility of its expansion according to current practice.Activism procuratorial power belongs to the combination noun,which consists of two parts: “activism” and “procuratorial power”.From the perspective of etymology and its meaning,activism refers to the active tendency theory of the subject,which can be manifested as two levels: intervention in the initiative and expansion of the initiative.Procuratorial power refers to the general term for various functions(powers)enjoyed by procuratorial organs or procurators,which is a macroscopic summary of the connotation of procuratorial power,which can be called “the broad concept of procuratorial power”;The essence of procuratorial power belongs to comprehensive power,including judicial power,administrative power and legal supervision power.The active procuratorial power composed of these two terms refers to the new concepts and new methods of procuratorial organs or procurators actively and proactively exercising the overall procuratorial function,expanding the procuratorial power,and improving the quality and efficiency of procuratorial work under the premise of law,which includes two aspects: the procuratorial power actively intervenes in the management of social life and actively expands the power.Whether it is the development process of China’s procuratorial power or the development of extraterritorial procuratorial power,it shows to varying degrees that procuratorial power is becoming more and more expansive at the legislative and judicial levels,and the active intervention of procuratorial power in social management and governance in many aspects has become a global trend.There are various reasons for this,such as the original procuratorial power cannot cope with the extremely expanded infringement of rights and interests,the lack of special protection for special criminal subjects,and the number of procuratorial teams,especially their professional capabilities,are not proportional to the number of criminal cases,etc.,which undoubtedly promote the continuous expansion and enrichment of procuratorial power.Judging from the current situation,in China,the theory of prosecutorial power activism is realistic and reasonable.The theory and practice of prosecutorial power activism are in line with China’s traditional concepts,with the distribution and operation of procuratorial power in China today,and with the concept of foreign prosecutorial power activism,and are also conducive to maintaining social order,to the balance or balance of power,and to helping to crack the administrativeization of procuratorial power.Not only that,in the nature of procuratorial power and the level of litigation power,there are different phenomena of expansion of procuratorial power,and good results have been achieved,which also confirms the rationality and reality of the theory of prosecutorial power activism in current judicial practice.However,the expansion of prosecutorial powers has also led to some problems in its actual operation.In terms of criminal policy,to be precise,in terms of leniency and strictness,the heavy punishment tendency of China’s criminal legislation leads to the inability of active procuratorial power to specifically apply leniency and strictness criminal policy in judicial practice,and there may be no legal provisions for the application of leniency and strictness criminal policy from the perspective of prosecutorial power activism theory,and there are also problems such as the “infringement” of procuratorial power on leniency and severity criminal policy from the perspective of prosecutorial power activism.At the level of litigation rights,the right to make sentencing recommendations,the right to prosecute juveniles,public interest litigation,and the plea and punishment system all have different degrees of infringement of judicial power by procuratorial power,or the allocation of procuratorial power may lack certain scientificity.To this end,it is necessary to build a supervision system within procuratorial organs and a supervision system within the system of state organs with the Supervision Commission as the core from the perspective of improving the procuratorial supervision system.What is more fundamental is to improve the procuratorial legal system,promptly stipulate the scope of procuratorial power,and restrict the interpretation power of procuratorial organs.In addition,by building a new model of investigation,prosecution and trial,the positioning of procuratorial power can be improved from the management model.Although the actual operation of prosecutorial power activism has exposed certain problems,as mentioned above,domestic and foreign legislation and judicial practice remind us that prosecutorial power activism is a developing trend.To this end,it is necessary to correctly understand this fact,and make a vision and restrictive constraint on its future power expansion from a macro perspective,including giving play to the legal supervision system,giving play to the power in the field of litigation,and taking the people as the center,reasonable and legal expansion of power,so as to achieve the “healthy”,reasonable and legal expansion of procuratorial power and actively intervene in social management.