Study On The Nature And Function Of China's Procuratorial Power

The nature of Chinese procuratorial power is still in a divergent state. There are four theories about it now: judicial power, executive power, dual nature of judicial power and executive power, legal supervision power. Because the former three doctrines are not in the context of Chinese constitutionalism structure, so they lose science. Although doctrine of legal supervision has the consciousness of exploring the nature of procuratorial power in Chinese constitutionalism structure, too much it emphasis on the difference, and has no clear criteria for the classification of state power, so it also lose science.Chinese procuratorial power is a judicial power in essence.. From the view of modern judicature, it promote the idea of"wide-range-judicature"and system-process, which means judicature is a kind of administration by litigation and judicial power is a kind of power which masters litigation. Therefore, judicial power is not just limited to jurisdiction, it can contains procuratorial power fully. From the constitutional framework, procuratorial power and jurisdiction are considered as the same type of power, and they can be both vested in judicial power. Vesting procuratorial power in judicial power will help safeguarding its independence.Chinese procuratorial power also has distinctive features of legal supervision .On the one hand, it is expressly provided by Chinese constitution; the other hand, it is the inevitable outcome of history. Therefore, Chinese procuratorial power is the combination of nature of judicial power and features of legal supervision. It is the concrete expression of judicial power's responsibility of legal supervision. Chinese procuratorial power should be situated in judicial supervision power. The nature of judicial supervision of Chinese procuratorial power mostly reflected in that its responsibility of legal supervision achieves by participating in proceedings and using means of litigation and judicial power.Chinese procuratorial power as judicial supervision power has four primary function: legal supervision, checks and balances on power and protection of human rights. But the latter two functions were often being ignored. The reform of procuratorial power should be based on the four major functions and as a fundamental value-oriented.. Especially we should notice the function of checks and balances on power and protection of human rights.