On The Judicial Foundation Of China's Procuratorial Power And Judicial Reform,

In the late 90s of last century, an intense discussion on the nature of the Procuratorial Authority occurred in Chinese legal field. Although the discussion researched the Procuratorial Authority widely and deeply, there was not a consensus. On the nature of the Procuratorial Authority, there are many views, such as the judicial power, the executive power, and the national power of legal supervision.My paper analyzes previous researches'shortcomings, pays close attention to the practice of Chinese Procuratorial Authority, puts forwards that the Procuratorial Authority is not just a single power but a bunch of powers, which includes the public prosecution power, the supervision power, and the prosecutorial investigation power. The public prosecution power and the supervision power have a nature of jurisdiction. Meanwhile the prosecutorial investigation power has a nature of executive. Only by this dichotomy way, can we reform the Procuratorial Authority wisely. My paper also holds that the Procuratorial Authority under the circumstance of China should be treated and established as the judicial power which should be independent from public opinions and should obey the due process rigorously. My paper can be divided into five chapters.Chapter one:the nature of the Procuratorial Authority in multiple perspectives. Basing on the pattern of political science, this chapter distinguishes the judicial power from the executive power, analyzes the nature of Chinese Procuratorial Authority in both ought perspective and factual perspective, holds that Chinese Procuratorial Authority has a nature mixed by the judicial power and the executive power. Viewing of the China's demands to be a state ruled by law, Chinese Procuratorial Authority should be traded and reformed to be the judicial power in order to offset the defects caused by the not-independence of courts.Chapter two:the master plan of Chinese Procuratorial Authority's reforms to be a branch of the judicial power. Researching the sub-powers of Chinese Procuratorial Authority separately, the chapter holds that the public prosecution power and the supervision power share the same nature of jurisdiction, which can be the basis of Chinese Procuratorial Authority as a judicial power. We should reform the public prosecution power and the supervision power by two ways, keeping prosecutors independent and controlling the powers operating in the track of due processes.Chapter three, four and five discuss the specific reform methods of the public prosecution power, the supervision power, and the prosecutorial investigation power. The public prosecution power should be reformed as the judicial power by hearing rules in not-to-prosecute cases and the pre-trial process. The supervision power should be also reformed as the judicial power by diversity of power-subjects and the concreting rules of processes. The prosecutorial investigation power should be established as the executive power by an organization form with headship, and should be regulated by judicial examination in order to avoiding its alienation.