On The Relationship Between The Procurator And The Police In Criminal Procedure

Public prosecution is the symbolic power of the prosecutorial power and it is important theoretically and practical significance to study the relation between procuratorial organ and police to take public prosecution as angle of view. In criminal proceedings, although every state provides the different specific meanings for the pubic right, the pubic prosecution received wide attentions for the control right of accreditation and investigation and the relationship of procuratorial organ and police under the leading of public prosecution, such as objectivity, supervision, coordination and other basic properties.Overseas, the relation between procuratorial organ and police under the indictment leading investigation has been widely implemented. In the civil law counties, it stresses that the police are usually led and directly controlled by prosecutors in the relationship between procuratorial organ and police, and it is also obvious. While in Britain and US, generally speaking, it don't emphasize the direct control and leadership. However, prosecutors have the right to guide the implementation of the police investigation and stress the procuratorial organ and police's co-ordination in the trial proceedings, especially in Japan, specially emphasize on public prosecution preparation function and prosecutors guide the police from the view of public prosecution. In addition, most countries have established a kind of protection mechanism, where prosecutors can discipline the police who don't obey the leading. Obviously, these counties both emphasize the ideas of investigation for the public prosecution service. In brief, these relations have advantages and disadvantages, civil laws will help protect to use the state's public prosecution, but because of too much emphasis on pre-trial work, the trial is often mere formality, and the presumption of innocence is difficult to carry out, while that is different from those of Britain and America's.In China, due to the influence of traditional concepts and existing laws, our state fails to carry out prosecution instructing detection. In order to carry out the model prosecution instructing detection, we must first establish several kinds of concepts: First of all, the concept of centering the trial, emphasize the decisive role of the trial, prosecution, and investigation serve the trial, prosecution subjects investigation and both are linked to protect the exercise of public prosecution; Second, the concept of protecting both human rights and prosecution criminals, prosecutors should always maintain two interests in criminal proceedings:one is national interest, and the other is the interest of the parties, therefore, to exert the state's power of prosecutor correctly and maintain the two interests, prosecutors should be concerned about the good and legal evidences; Third, the concept of efficiency, we must scientific design some systems to solve the efficiency problems to meet the needs of modern litigation and combat criminals, thus, we play the function of criminal law and restore orders; Fourth, the concept of prosecutorial controlling power, In China, the police has a greater power of investigation, but it is not able to complete the tasks that are mandated very well in the code of Criminal Procedure. However, the police's abusing power is more prevalent and the mechanism of controlling the police is not in place, therefore, it is necessary stressing prosecutors controlling power and prosecutors can exert their powers by guidance and supervision; Finally, the concept of judicial prosecutorial power, the characteristics of the work determine that the prosecutorial power has a judicial nature, which is different from the investigation attribution. Both are relative independence and a certain separation space, which need to build a bridge between them—set up some mechanisms to achieve their common purpose of prosecution.Then, China should implement the model of prosecutors guiding investigation and it is essential to establish a reasonable system of the controlling monitor the police's investigation and emphasize the cooperation between them, investigation obeys prosecution and the latter guides the former and so on.At present, we want to scientifically construct the specific systems of prosecution guiding investigation, combined with practice, China can build the following specific system:Firstly, establish the record reporting system, so that prosecutors can timely interfere with detection activities, master case information, timely guide and supervise investigation activities to protect the effective and legal evidences; Secondly, establish the system of prosecutors'mobile detection rights, the law gives them the power of detecting criminals and set the necessary conditions for the exercise. Without weakening the functions of the public security organs, the state gives prosecutors the criminal investigation right, which can not only protect the exercise of the power of prosecution, but also effectively supervise investigation.; Thirdly, establish the system of prosecutors'early entry into the pre-trial procedures and shorten the investigation and pre-trial procedures period to improve litigation efficiency and protect human rights; Fourthly, establish the system of a police witness,strengthen the cooperation of the prosecutors and the police in the trial procedure and effectively exercise the prosecutor's power; Last but no least, establish the system of discipline and proposal confer prosecutors'discipline and proposal power against police and protect the exercise of prosecution guiding investigation from the institution.