Research On Criminal Prosecutorial Protest

Criminal prosecutodal protest system is the important part of criminal prosecution system and criminal prosecutorial protest is the important part of procuratorial power,which is the second adjudication as the remedial measures against the failing to achieve the purpose of prosecuting prosecutorial protest.There are some leaks in Chinese regulations concerning the criminal prosecutodal protest.Through the analysis of the theory of criminal prosecutodal protest,the writer analyzes the concrete problems concerning Chinese criminal prosecutodal protest,and then makes hard research on the improvement of Chinese criminal prosecutorial protest.This thesis is divided into three parts.In the first part,the writer summarizes Chinese criminal prosccutorial protest from four aspects.The first one is about the definition of criminal prosccutorial protest,which refers to the action done by the People's Procuratorate of asking People's court to hear the case again according to the legal procedure within legal or certain term when they believe that the sentence or judge by People's court are wrong.The second one is about the characteristic of criminal prosecutodal protest.The People's Procuratorate is the organs for legal supervision according to Constitution,Law of Criminal Procedure,the organization law of the People's Procuratorate and other relevant laws and regulations,but the power of supervision is the one in name but not in reality since the relationship of coordination and mutual check; investigating,procuratorial and trial powers are equal to each other,and the opinions of protesting of People's Procuratorate might not be adopted by People's court.Criminal prosecutorial protest is just the measure of mutual check but not the measure of supervision and the power of protesting is one part of procuratorial powers.The writer believes that the power concerning criminal prosecutorial protest doesn't possess the characteristic of legal supervision.The third one is about the protest concerning starting the second trials.The subjects who have the rights to ask the People's Procuratorate to protest are only victims and their legal representatives,and the scope is too narrow since some victims die6 and there is no legal representative in practice;therefore,the writer suggests that the legislation should prescribe that the close relatives of victims should have the fights to ask the People's Procuratorate to protest.The legislation should prescribe that victims have the rights to ask the People's Procuratorate to protest when they are against the sentence in the first trial by local courts at each level in order to avoid that victims' rights of protesting against sentence accords with defendants' rights of appealing and the fights of protesting against sentence of the People's Procuratorate.The period of ten days of protesting by victims and the People's Procuratorate together is too short,which shows the inequity between the right of protesting and appealing.The fourth one is about the protesting concerning starting the procedure for supervision upon adjudication.The upper-level People's Procuratorate has the right to ask the same-level People's court to refuse the protesting from lower-level People's Procuratorate and lower-level People's Procuratorate should ask upper-level one before protest,which totally neglect the rights of protesting independently of lower-level People's Procuratorate.It is necessary to abolish the rights of People's Procuratorate to protest basing on the procedure for supervision upon adjudication if they don't protest within ten day after they receive the first trial.The legislation should proscribe the term of protesting basing on the procedure for supervision upon adjudication from the point of view of the stabilization of sentence and judge;moreover,the term of protesting should be limited.In the second part,the writer analyzes concrete problems concerning Chinese Criminal prosecutorial protest from two aspects.Firstly,the writer analyzes it from the aspect of protesting against the sentence with illegal procedure.As for the irregularity of the proceedings,the writer believes that the People's Procuratorate should consider the suggestion of correct,and then they should protest when the People's Court doesn't adopt them and the irregularity affects just sentence.It isn't suitable to protest against the irregularity of before the proceedings.As for the situations,for instance,the regulation of obviation is disobeyed in the irregularity of after the proceedings,the structure of organization hearing the case is illegal,the evidence is illegal and the court deprives or limits the parties' legal right of litigation,the People's Procuratorate should suggest the People's Court to correct,and then they should protest if they don't adopt their suggestion and the just sentence will be affected.It is proper to put forward the suggestion of correcting but not to protect when the note of sentence is sent illegally and the coercive measures aren't cancel.The legislation should prescribe the term during which the People's Court should send the note of sentence and the term during which parties should prosecute.Secondly,the writer analyzes it from the aspect protesting against the illegal entity.It is necessary to protest against the improper probation,exemption from punishment and lightening punishment toward the crime by taking advantage of duty,and it is necessary to insist on the principle of "executing seriously as few as possible" in the cases of capital punishment and to consider carefully with more consideration of leniency but not strictness;as for the cases with doubtful points,it is necessary to insist on the principle of to be lenient,to deal with basing on the lenient principle,not to execute criminal until it is necessary and not to protest without careful consideration.If the victims want to protest,the People's Procuratorate should pay more attention to the rational side of their demand of protesting and give another chance of relieving to them,so they should protest.It is improper to protest when there is little discrepancy in the scope of punishment,and it is improper to protest when the individualization of punishment and the balance of punishment are achieved in the cooperated criminals;moreover,it is improper to protest when there is some mistake about the evidence,the elimination of legal evidence are concerned and it is improper to protest against the criminal case of a teenager if they don't affect the punishment.In the third part,the writer reflects on Chinese criminal prosecutorial protest from two aspects.Firstly,the writer reflects on the practice of criminal prosecutorial protest,namely,the wrong ideas of protesting against innocence but not criminal and protesting against light criminal but not the heavy one in protesting works concerning the problems of emphasizing beat but neglecting protection.The People's Procuratorate should protest against the wrong sentence or judge no matter they are favorable to defendants or not. From the point of view of equity and just or protecting the dignity and unification of law,the People's Procuratorate should protest against the irregular sentences of too light or too heavy by the People's Court according to law.As for the problem of dislocation between power and responsibility, protesting is not only the power of the People's Procuratorate but also their responsibility,which should be applied carefully,that is to say that it isn't permitted not to protest for considering the social relationship when it is necessary or to abuse the power of protesting.Secondly,the writer reflects on the system of adding punishment by protesting,and he believes that the punishment of criminals can be increased by protesting against the sentence and judge during the first trial.The increased punishment on defendants basing on the protesting according to the procedure for supervision upon adjudication should be limited.It is necessary to prescribe the term of protesting according to the procedure for supervision upon adjudication; moreover,it is necessary to prescribe certain term of protesting,for instance the term of a half of year,and during this term,it is possible to protest for increasing the punishment on criminals but it is impossible beyond the legal term.Criminal prosecutorial protest should base on the sentence and judge of People's Court with proper consideration of the ability of judging immediately of judgment.Criminal prosecutorial protest right should be applied seriously and carefully,and it can't be canceled within current legal framework.The procuratorial suggestions should be adopted and the right of protesting should be considered carefully,which should be applied when the criminal will be indulged without changing the original sentence.