Inspection: Concept, System, and Reform

Author: Sun Qian
Publisher:
Publish Date: 2004-04-01
Features: The prosecutorial system in modern rule-of-law states has gradually developed into an indispensable part of the judicial system since its creation on the European continent. However, debates over the prosecutorial system and the role of prosecutors have never ceased, whether in civil law jurisdictions or common law jurisdictions. Prosecutors in civil law countries are generally positioned as "objective and independent judicial officers," while in common law countries, they are typically regarded as "public prosecutors representing the government." Socialist countries, exemplified by the former Soviet Union, characterized their prosecutorial system by "legal supervision." Despite differences in prosecutorial systems across countries, the fundamental functions of prosecutors have been widely recognized as a commonality, which is also reflected in relevant United Nations documents. For instance, the "Basic Principles on the Role of Prosecutors" adopted by the United Nations General Assembly confirms the role and responsibilities of prosecutors, primarily including: representing the public interest in prosecuting crimes, supervising the legality of investigations, overseeing the execution of court judgments, and investigating corruption among public officials. The prosecutorial system of the People's Republic of China is an important component of the national legal system. In recent years, with the deepening of the rule-of-law process, judicial reforms have garnered increasing attention. I believe that the reform of the prosecutorial system within judicial reforms is a challenging aspect. The difficulty lies in the following reasons: First, compared to the judicial and police systems, the prosecutorial system exhibits significant differences across countries, meaning that "reference frameworks" are diverse. Second, the prosecutorial system is a fundamental legal system closely linked to constitutionalism, concerning the specific forms of state and political systems. Given the vast differences in political systems, legal systems, and national conditions among countries, the creation and effective functioning of a legal system cannot be achieved through simple transplantation. In the study of the prosecutorial system, some scholars may base their arguments and comparative research solely on certain foreign political and judicial systems, leading to conclusions that are inevitably biased. Third, China's prosecutorial system, while drawing on the former Soviet Union's model, has been adapted to the country's specific conditions, continuously developing and forming its own characteristics, which align well with China's constitutional system. Further development and improvement require a focus on the foundational theories of the prosecutorial system, centered on the principles of modern rule of law, to unify and coordinate the constitutional positioning of the prosecutorial system with its functions in specific legal branches. The combination of these factors makes advancing prosecutorial reforms grounded in modern rule-of-law principles and China's constitutional system a relatively complex task. This work represents a valuable attempt to address this topic, as reflected in its three core concepts: concepts, systems, and reforms. The book is divided into six parts, each with distinct characteristics. A prominent feature is the research of theory for practice. Over the 20 years of his career as a prosecutor, the author has never ceased his pursuit of theoretical learning and research, producing numerous works and outstanding achievements. For a prosecutor engaged in legal practice, a strong spirit of theoretical exploration to solve practical problems is essential, which is something the author has demonstrated. To systematically study and research, he began pursuing his doctoral degree in 1997 despite his busy schedule and completed it with an outstanding dissertation evaluation, followed by successful postdoctoral research. Since joining the workforce, the author has consistently prioritized addressing practical issues in the prosecutorial system as his responsibility, from selecting research topics to adopting theoretical methods, from determining logical starting points to basing value judgments. All of these decisions have been made with China's prosecutorial system in mind. His primary concern is "solving practical problems and advancing China's rule of law substantively." From this work of over 400,000 words, it is clear that all of his academic achievements revolve around judicial practice and prosecutorial work, even in highly academic doctoral dissertations and postdoctoral research reports. This dedication to his work and relentless pursuit of theory is truly commendable. It is not difficult for one to write a few articles, but it is challenging to maintain a vibrant learning habit and even make research and thinking about problems a primary way of working and living. This is where the author's theoretical research journey is deeply marked by a commitment to starting from practice and diligently studying to solve practical problems. As the author states in "Retrospects on the Theoretical Research of the New China's Prosecutorial System": "Theoretical research on the prosecutorial system must consistently adhere to and implement the principle of combining theory with practice. The construction of the prosecutorial system and the judicial activities of prosecutorial organs are highly practical. To develop theories that are beneficial to practice, one must start from the actual situation and explore the laws governing its existence and development. If theoretical research is detached from practice, it not only fails to guide prosecutorial practice correctly but may also harm it. Therefore, theoretical research on the prosecutorial system must follow a path from practice to practice to achieve results that provide practical and long-term guidance." Rich in content and full of original insights, this book is another distinctive feature. With concepts, systems, and reforms as its main threads, it covers the main aspects of theoretical research on the prosecutorial system, from macro-level prosecutorial concepts to institutional reforms, from foundational theories to the specific contents of the prosecutorial system, and from reviews of foreign prosecutorial systems to the practice of China's prosecutorial system. It encompasses the key areas of prosecutorial theory and institutions. The author upholds the fundamental principles of modern rule of law, continuously delving into the theoretical level of prosecutorial research, enriching the humanistic foundation and spiritual cultivation of prosecutorial theory. He has proposed original and insightful views on issues related to the prosecutorial system. For example, the concepts of "official misconduct" and "supervision of official misconduct," along with their related theories, proposed by the author in the late 1980s, were pioneering and foundational in the study of prosecutorial theory, establishing the theoretical basis for prosecutors' investigative powers over official misconduct. Today, the term "official misconduct" is widely accepted and used in legal circles. The author's research approach demonstrates a global, open, and "multi-path" methodology, highlighting his outstanding methodological skills. His broad perspective. In the process of researching prosecutorial theory, he did not simply confine himself to the prosecutorial system and the criminal legal system itself, conducting textual legal studies based on existing legal provisions. Instead, he placed the prosecutorial system within the broader context of China's rule-of-law advancement and studied it within the constitutional system of "co-equal courts" and "one government, two courts." He engaged in in-depth rational reflection and analysis from historical and contemporary perspectives. Moreover, he always adopts appropriate research methods based on the characteristics of different research topics, but the "multi-path" approach remains his unwavering pursuit. For every research topic, hes from the perspectives of departmental law, legal philosophy, sociology, political science, history, and comparative law, reflecting his solid and profound theoretical expertise and ability to address research questions. The author is both a prosecutor with extensive practical experience and a scholar who values theoretical pursuits and possesses strong theoretical knowledge. As his supervisor during his doctoral studies, I am deeply gratified by his achievements in theoretical research. This work reflects the author's main accomplishments over the 20 years of his career as a prosecutor. These 20 years of prosecutorial experience not only mean 20 years of arduous and specific prosecutorial practice but also involve the author's diligent cultivation and relentless pursuit of thought in the field of prosecutorial theory, demonstrating his ambition and determination to gradually develop and improve China's prosecutorial system and achieve socialist rule of law. Achieving the rule of law is a great goal and a long-term process, and in this process, scientific theory is essential for guidance, but more importantly, a rational and down-to-earth attitude is required. I hope and believe that the author can always maintain this academic style and attitude, firmly adhere to the path of combining theory with practice, and make new contributions to the people.
Part I and Part II of the book present reflections and suggestions on macro-level issues. Parts II, III, IV, V, and VI focus on research and reform proposals related to arrests, official misconduct and supervision of official misconduct, prosecution, and prosecutorial management systems. The content of each part is both rich and highly professional.