Study On The Independence Of The Prosecutor In China

Prosecutor is the staffs who apply procuratorial power according to the law, includingthe chief procurators, deputy chief procurators, members of the procuratorial committees,procurators and assistant procurators working in the supreme procuratorate, localrocuratorates, military procuratorates and other special procuratorates. There are so manyregulations in our country provided that the procuratorial organ can exercise theprocuratorial authority independently, however the prosecutor who is actually apply theprocuratorial authority has been restricted by many aspects in judicial practice. What’s more,there is no regulation about the subject status of prosecutor in our existing law, and there isno comprehensive regulation for prosecutor about the way to apply procuratorial power inprocuratorial organ, neither in external nor internal. Nevertheless, there is so many arguesabout the nature of procuratorial authority that the experts and scholars in the field ofjurisprudence are far from reaching an agreement or compromise, let alone how to exercisethe judicial procuratorial authority independently to a prosecutor.The main idea in this paper is to analyze the range, power, the practice and theory ofprosecutor and his/her independence. According to "the plan to develop procuratorialwork in five years ""the opinion to reform procuratorial work in three years" and "thescheme about the comprehensive promotion to the responsibility system of the prosecutorwho’s main duty is to participate in lawsuit for handling the case in the department ofexamination and prosecution" printed and distributed by the supreme procuratorate from1999to2000,we can come to the conclusion that, the attitude of the supreme procuratorate,to the issue about whether a prosecutor should exercises the judicial procuratorial authorityindependently and eliminates improper interference or not, is positive. Whereas they neitherconfirm the way to apply regulations for a prosecutor when he/she exercises the prosecutingauthority independently, which is a kind of judicial procuratorial authority, nor they make itclear that prosecutor is the subject of judicial procuratorial authority in law. For thesereasons, this paper recommend that the judicial procuratorial authority should only belongsto prosecutor building on the premise that prosecutor could exercise the judicialprocuratorial authority independently, and make some suggestions on legislation andpractical operations to improve the system of prosecutor. The main methods in this paperare used to analyze the prosecutor and how he/she exercises the judicial procuratorialauthority independently in the view of negative relative independent,, includes semanticanalysis, comparative analysis and literature retrieval method, who are combined withregulations and practices and based on juristic theory come to a conclusion that the prosecutor should be independent due to the judicial of the judicial procuratorial authority.At first, this paper make it clear that the subject of independent of prosecutor must beall of the prosecutors but not a part of prosecutors, defined the essence of the independentof prosecutor is the independence of the judicial procuratorial authority, not theindependence of the whole procuratorial authority itself. Then set forth the value of theindependent of prosecutor to prove its necessity. The second part makes a dissertation thatthe independent of prosecutor in China should be negative and relative from the aspects ofthe nature of procuratorial authority, the legal status of prosecutor, the degree anddistribution and responsibility of authority in procuratorial authority. The third partinvestigates the actual situation of the independent of prosecutor in China, analyzed theexisting problems in the practice while expound and prove its realistic basis. Afterwards,this paper makes a sound analysis and exposition of the suggestions about the independentof prosecutor made by the field of field of jurisprudence. After that the fourth part makes adetailed analysis to these suggestions, and points out many problems existing both in theirand my ideas before, then makes some new suggestions based on the exposition above all,at last.