Procedural Review--Volume 10

Author: Sun Qian
Publisher:
Publishing Date: 2005-06-01
Features: "Record of the Expert Symposium on Procuratorial Reform and Amendment of the Organic Law of the People's Procuratorate"
On August 12-13, 2008, the Supreme People's Procuratorate hosted the "Expert Symposium on Procuratorial Reform and Amendment of the Organic Law of the People's Procuratorate" in Wuyishan City, Fujian Province. This article comprehensively and objectively presents the insights of over 50 legal experts and scholars attending the symposium on issues such as procuratorial reform and the amendment of the Organic Law of the People's Procuratorate. It also reveals the amendments and progress of the Organic Law of the People's Procuratorate.
Procuratorial Power in the Constitutional Perspective
Liang Yuxia
The examination of procuratorial power must rely on two platforms: legitimacy and rationality. As a state power, the attributes, functions, and operational mechanisms of procuratorial power should legally originate from the constitutional system of the state it belongs to, which is the source of its legitimacy. Additionally, procuratorial power must always align with and serve the existing constitutional system, which is the direct manifestation of its legitimacy. Substantive rationality is the second key focus in the study of procuratorial power. For any public power, having a constitutional foundation does not automatically equate to rationality. If a state power lacks rationality in its existence, it should be abolished or reformed, even along with the constitutional system that gave rise to it.
The "Five Key Relationships" to Address in China's Procuratorial Reform
Gao Yi
China's procuratorial reform should properly handle the "five key relationships": the relationship between the procuratorial system and the constitutional system, the relationship between hidden procedures and legal rules, the relationship between combating crime and upholding justice, the relationship between procuratorial integration and the independent role of procurators, and the relationship between procuratorial organs and investigative organs.
The Institutional Design of Procuratorial Criminal Power
Research Group of the Beilun District Procuratorate of Ningbo City, Zhejiang Province.
The right to prosecute is an essential component of public prosecution power, and it is undeniable that procuratorial organs possess this right. The issue lies in how to theoretically elaborate on it and design a reasonable institutional framework in practice to ensure the correct exercise of this power and its intended role.
Comparative Study of Procuratorial Systems in China and the UK
Tang Weiyuan
Through a comparative study of the procuratorial systems in China and the UK, as well as an analysis of the causes of their differences, the following insights can be drawn: First, procuratorial reform must be firmly grounded in the national conditions of the country. Second, the independence of procuratorial organs should be further strengthened. Third, the scope of legal supervision by procuratorial organs should be expanded. Fourth, China's procuratorial system should be improved.
With the Passage of Time, Unknowingly
The Procuratorial Forum has already celebrated its fifth anniversary and has reached its tenth volume. Five years or ten volumes aside, by convention, it is indeed time for reflection and commemoration. History is a mirror—it records the past, illuminates the present, and foresees the future. Over the five years of its development, the Procuratorial Forum has been a blend of successes and challenges. The successes include our firsthand experience in its germination and growth, contributing to the prosperity of the procuratorial cause. The challenges, however, lie in our need to make it even better and enhance the flourishing of procuratorial theory.
Indeed, among the more than 300 articles compiled in the ten volumes over five years, we have been impressed by the authors' extensive research, moved by the contributors' foresight, and touched by the authors' boundless love for the procuratorial cause and the rule of law. Therefore, we can confidently say that in the growth of the Procuratorial Forum, all thoughts, hopes, and aspirations have been silently cultivated, shared, and cherished with joy.
Of course, the growth of the Procuratorial Forum is closely tied to the development of China's procuratorial cause, especially to the reform and improvement of the socialist procuratorial system with Chinese characteristics. Half a century of judicial practice in New China has shown that the current procuratorial system was established and developed by drawing on the essence of institutional civilization in Chinese history, inheriting the fine traditions of procuratorial work during the New Democratic Revolution, learning from the procuratorial system of the former Soviet Union and other countries, particularly those in the civil law system, and adapting to the needs of China's contemporary conditions and political system under the guidance of Lenin's theory of legal supervision. It shares commonalities with procuratorial systems in other countries and regions while also embodying the distinct characteristics of China as a national legal supervisory organ.
Therefore, from the perspective of building a socialist rule-of-law state, the current procuratorial system represents a historic choice made by New China in its governance and legal system development. It is grounded in a scientific theoretical foundation, a solid political foundation, and a profound practical foundation. It incorporates many effective experiences and practices formed in China's judicial work, aligning with the national conditions of contemporary China and possessing its own advantages and strong vitality.
The law must be applied justly, and justice itself requires effective supervision to reinforce it. Therefore, as the national legal supervisory organ, the People's Procuratorate is an indispensable force in building a harmonious socialist society. The socialist procuratorial system with Chinese characteristics should also serve as an important institutional support for this endeavor. The procuratorial cause has great potential!
Of course, we cannot deny that there are still various challenges in the development of the procuratorial cause. For example, the full and effective exercise of legal supervision capabilities remains insufficient; the achievements in addressing issues such as non-compliance with the law, lenient law enforcement, lack of accountability for violations, judicial injustice, and judicial corruption fall short of the expectations of the Party and the people; and during legal research and judicial reform, procuratorial theory and the procuratorial system still face tendencies of being "marginalized."
The root cause of these issues lies in the difficulty of dialectically, rationally exploring, tracing back, questioning, nurturing, integrating, consolidating, and guiding the theoretical foundations of China's procuratorial system's local characteristics, inheritance, legitimacy, and rationality—"Where do I come from, and where am I going?" "Is the procuratorial system dispensable in the process of governing the country according to law?" These are precisely the questions that legal scholars must pursue throughout their lives.
The mission of media like the Procuratorial Forum, which carries forward the achievements of procuratorial theory and practice, is self-evident. Of course, in the process of showcasing the achievements of the procuratorial cause through the Procuratorial Forum, the correctness of certain viewpoints or proposals is not because those who hold them are "sages" or possess mysterious intentions, but because their views and proposals have been proven appropriate in our practice or align with legal principles, logic, and national conditions. As Chairman Mao Zedong once said: "If what you say is right, we will correct it; if the methods you propose benefit the people, we will follow them!"
Therefore, over the past five years, although the Procuratorial Forum has undergone some changes, its purpose has remained constant: closely monitoring major issues in procuratorial practice, enhancing rational awareness in procuratorial activities, and elevating the theoretical standards of procuratorial studies; consistently opposing "leftism" and "rightism," combating both empiricism and dogmatism; adhering to a high-end, innovative research strategy that showcases the fruits of procuratorial theoretical research while reflecting the essence of practical insights; and always selecting articles based on quality, supporting new talent, and striving to be a true "friend of the prosecutor."
Currently, how to improve the legal supervision capabilities and standards needed to build a harmonious socialist society is a major challenge for procuratorial organs at all levels and an urgent issue that must be resolved in the development of procuratorial work in the new era. To this end, this volume collects 18 articles, including "Record of the Expert Symposium on Procuratorial Reform and Amendment of the Organic Law of the People's Procuratorate," "Procuratorial Power in the Constitutional Perspective," "The 'Five Key Relationships' to Address in China's Procuratorial Reform," "Exploring the Reform of Internal Supervision Mechanisms in Procuratorial Organs," "On the Modern Enforcement Concept of Procuratorial Personnel," "Investigative Supervision and Human Rights Protection," "The Institutional Design of Procuratorial Prosecutorial Power," "The Theory and Practice of Procuratorial Participation in Civil Public Interest Litigation," "Plea Bargaining and the Prosecutor's Discretionary Power," and "Comparative Study of Procuratorial Systems in China and the UK," to share with our readers.
Finally, it must be noted that the development of the Procuratorial Forum is inseparable from the strong support of Legal Publishing House and its peers. We express our heartfelt gratitude for this. The Procuratorial Forum is ours, and it is also for all those who are passionate about the development of the procuratorial cause. Let us work together to nurture it to be even better and stronger!