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The independent exercise of procuratorial power in litigation activities by procuratorial organs in performing their legal supervision functions has both legitimacy and legitimacy in the mainland, and it is precisely because the independence of the procuratorate and the independence of adjudication go hand in hand in the context of constitutionalism that not only constitute the complete connotation of judicial independence on the mainland, but also become an important component and a powerful guarantee of the people's congress system. Therefore, the rational allocation of procuratorial power is the key to determining the scientific development of the reform of the procuratorial system on the mainland. Determined by the nature of legal supervision, the scientific allocation and efficient operation of procuratorial power should not only pay equal attention to rigid control and flexible incentives, but should also be parallel to self-restraint and external supervision, and the legalization of the people's supervisor system is undoubtedly an important way to reform the external supervision mechanism of legal supervision.
Keywords: legal supervision; the allocation of procuratorial powers; institutional change; People's Supervisor System
We live in a time of reflection and change. Although the current constitution of the mainland clearly stipulates the legal supervision status of the procuratorial organs, "as long as people understand, then there will always be different understandings." "Since the restoration and reconstruction of the procuratorial organs in 1978, the controversy over the legal supervision position of the procuratorial organs and the allocation of their powers has not only not been settled, but on the contrary, the academic controversy has become more and more intense, and the voices of questioning have become louder and louder. How should the nature of legal supervision be determined? In the face of reflection and questioning, where is the path for the procuratorial system to respond to reform? The author intends to take the current Constitution of the mainland, the Organic Law of the People's Procuratorate, and other relevant legal provisions as a starting point, and conduct a study on the nature of legal supervision and the relationship between it and the allocation of procuratorial power, so as to provide reference for the revision of the Organic Law of the People's Procuratorate.
1. Nature exploration: legal supervision · procuratorial power
Article 129 of the current Constitution of the mainland stipulates: "The People's Procuratorate of the People's Republic of China is the legal supervision organ of the State. Article 131 stipulates: "The people's procuratorate shall exercise its procuratorial power independently in accordance with the provisions of the law and shall not be subject to interference by administrative organs, social organizations or individuals." Accordingly, the relationship between legal supervision and procuratorial power has become a theoretical problem and practical puzzle that has been debated endlessly for a long time in procuratorial theory research, and the following representative views have been formed:
The first viewpoint holds that legal supervision is the same as procuratorial power, and that procuratorial supervision is legal supervision, which is different from supervision of an ordinary administrative nature. The institutional nature of the people's procuratorate's legal supervision is realized through the exercise of procuratorial power, which is the way and means by which the procuratorial organs carry out legal supervision; In the context of the Chinese Constitution, the procuratorate is supervision, and it is the special legal supervision carried out by the people's procuratorate.
The second view asserts that the procuratorial power is essentially manifested in the power of public prosecution and is a kind of administrative power. It is precisely the administrative nature of the power of public prosecution that determines that in criminal proceedings, the prosecutor exercising the power of public prosecution is a party equal to the defendant in terms of legal status, that is, "the procurator becomes a party". Therefore, the procuratorial organs do not have the power of legal supervision in criminal proceedings.
The third viewpoint proposes that only by decomposing the procuratorial power into two levels: the legal supervision power with judicial supervision as the demand and the traditional judicial functions with the power to investigate, approve arrest, and prosecute crimes committed while performing official duties, can we provide a power space with comprehensive coverage, specific perspectives, and clear definitions for legal supervision. If the two are confused, and the process of exercising the power of self-investigation, the right to approve arrest, and the right to sue is regarded as the exercise of the power of legal supervision, on the surface, it seems to expand the meaning of the power of legal supervision, but in fact it blurs the nature and function of the power of legal supervision, making the power of legal supervision abstract, generalized, and meaningless, and ultimately making the exercise of the power of legal supervision hollow and a kind of dependent power. In this sense, the characterization of the "judicial supervision power" actually lays a fully rational "living space" for the legal supervision power, and avoids the embarrassment of the legal supervision power seeking a "home" in all directions for a long time.
As a matter of fact, the Constitutional Drafting Committee in 1954 had a special discussion on the relationship between "procuratorate" and "supervision." Comrade Liu Shaoqi said: "Since we are called the chief procurator, we have also called a 'supervisor,' and it seems that we don't want to 'procure.' The procuratorate only has the power to decide on arrest and the power to prosecute, but not to adjudicate. It has a lot of power, but it also has certain limitations. Mr. Qian Duansheng also recalled the scene at that time and said: "At the convener's meeting, some people advocated changing 'procuratorate' to 'supervision', and most people advocated that it was better to use 'procuratorate'. In November 1953, the Central Political and Legal Party Group, which was headed by Allah Peng, in its proposal to the Party Central Committee, held that "the Public Prosecutor's Office is the organ of legal supervision, which examines all cases of violations and crimes committed by citizens, including state functionaries." It can be seen from this that, in addition to general supervision, the independent exercise of procuratorial power by procuratorial organs as organs of state legal supervision has been the consistent position of procuratorial organs in the Constitution since the founding of the People's Republic of China.
However, "unlike private contracts and literature, discussions about the Constitution are extensive, public, and documented. The goal of originalism is not to reproduce the fleeting ideas of certain individuals at the time of the constitution-making, but to examine the clearly expressed and elaborate meanings of texts that are indispensable for the defense of the Constitution, and on the basis of which the ratifiers of the Constitution make their judgments on whether or not to accept the Constitution. Therefore, the interpretation of the nature of legal supervision and its relationship with procuratorial power must return to the origin, return to the current Constitution of the mainland, the Organic Law of the People's Procuratorate and the relevant texts of the three major procedural laws to interpret the norms in the context of China's rule of law.
Adhering to the provisions of the Constitution, the 1983 Organic Law of the People's Procuratorate not only explicitly reaffirmed and emphasized the legal supervision status of the procuratorial organs in Articles 1 and 9, but also further refined the functions and powers of the procuratorial organs in the Constitution, and clearly stipulated in Article 5 that the scope of powers exercised by the people's procuratorates at all levels includes: (1) exercising procuratorial power in cases of treason, secession, and major crimes that seriously undermine the uniform implementation of state policies, laws, decrees, and decrees. (2) Conduct investigations into directly accepted criminal cases. (3) Conduct a review of cases investigated by the public security organs, and decide whether to arrest, prosecute, or waive prosecution; Supervision is exercised over the legality of the investigative activities of the public security organs. (4) Initiating a public prosecution in a criminal case and supporting the public prosecution; Supervision is to be carried out over the legality of the people's courts' adjudication activities. (5) Supervise the enforcement of judgments and rulings in criminal cases and the legality of the activities of prisons, detention centers, and labor reform organs. At this point, the nature of legal supervision and its relationship with the procuratorial power became clear on paper: the procuratorial organs carried out legal supervision through the exercise of procuratorial power in litigation activities to ensure the uniform implementation of state policies, laws, decrees, and decrees.
Specifically, first of all, the duty and mission of the procuratorial organs, as the legal supervision organs of the state, is to ensure the uniform implementation of the laws of the state through the development of legal supervision activities. Therefore, the object of legal supervision is not the activities of ordinary citizens and social organizations, but the legal enforcement activities of state administrative organs, judicial organs, procuratorial organs, and other public power organs other than the power organs, as well as the official acts of all state functionaries, while the development of legal supervision activities of procuratorial organs is manifested in the exercise of procuratorial power.
Second, the legal supervision of the procuratorial organs is not ordinary supervision, but takes litigation activities as the scope of time and space, and carries out supervision and exercises procuratorial power in litigation activities. Therefore, the development of legal supervision activities, that is, the exercise of procuratorial power, must not only comply with the provisions of the Constitution and the Organic Law of the People's Procuratorates, but must also be carried out in accordance with the basic principles and legal procedures of the three major procedural laws. It is in this sense that "strengthening litigation supervision and safeguarding fairness and justice" has become the eternal mission of China's procuratorial organs and the goal and direction of China's procuratorial system reform. Among them, the procuratorial organs investigate the criminal cases directly accepted, that is, the cases of crimes committed by state functionaries, and it is not so much that the procuratorial organs are responsible for the division of labor with the public security organs to manage the legal implementation activities of the organs and the official activities of all state functionaries to perform legal supervision duties; When the procuratorial organs examine the cases investigated by the public security organs and decide whether to arrest or prosecute, they are in fact exercising legal supervision over the exercise of the investigative powers of the public security organs and the carrying out of criminal investigation activities; On the other hand, procuratorial organs initiate public prosecutions and support public prosecutions in criminal cases, as well as raise protests against first-instance judgments in criminal cases and final judgments in criminal proceedings, civil proceedings, and administrative proceedings, are legal supervision over the exercise of the court's adjudication power and adjudication activities. Because criminal enforcement activities are not only an important part of the state's judicial and administrative activities, but also a necessary extension and expansion of criminal procedure activities, the Criminal Procedure Law not only specifically stipulates criminal enforcement activities, but also the provisions of the Criminal Procedure Law must be taken as the criterion for the development of criminal enforcement activities. The same is the supervision carried out in litigation activities.
Finally, the procuratorial power in China is neither legislative nor executive, but an inseparable and important part of the judicial power. Although the procuratorial organs and judicial organs, like the state administrative organs, are all created by the people's congress, are responsible to the people's congress and are subject to the supervision of the people's congress, the procuratorial organs exercise their procuratorial power independently in accordance with the law and are not subject to interference by administrative organs, social organizations and individuals (Article 131 of the Constitution), and the judicial organs exercise their judicial power independently in accordance with the law and are not subject to interference by administrative organs, social organizations and individuals (Article 126 of the Constitution). Moreover, through the procuratorial organs' duty of legal supervision over litigation activities, and the adjudication organs' responsibility for judicial adjudication of litigation activities, a judicial system with Chinese characteristics and a mode of operation of judicial power have been formed. It is precisely for this reason that the people's courts and the people's procuratorates are not only different from the organs of power and the administrative organs and are separately and concurrently enshrined in Section 7 of Chapter 3 of the current Constitution of the mainland, but also in the relevant documents of the reform of the central judicial system, they have always insisted on using procuratorial independence or judicial independence in the exercise of their respective functions and powers, and only when the issue of procuratorial independence is also mentioned, judicial independence is called.
Therefore, in the context of China's constitution and legal practice, the procuratorial organs, as the legal supervision organs of the state, not only independently exercise the procuratorial power in litigation activities in accordance with the law, but also supervise the law enforcement activities of the state administrative organs, judicial organs and procuratorial organs themselves, as well as the official acts of all state functionaries, so as to ensure the uniform implementation of state policies, laws, decrees and decrees, and are also an integral part of China's judicial organs. Therefore, in China, judicial independence is not synonymous with judicial independence, but the organic unity of judicial independence and procuratorial independence, and the exercise of procuratorial power is not only the way for procuratorial organs to carry out legal supervision and the path to achieve it, but also an inseparable component of judicial power. Therefore, it is decided that the practice of discarding the legal supervision position of the procuratorial organs and the judicial power of the procuratorial power, treating the essence of the procuratorial power as the power of public prosecution and then subsuming it into administrative power, or decomposing the procuratorial power into the legal supervision power with judicial supervision as the appeal and the traditional judicial functions with the power to investigate, approve arrest, and prosecute crimes committed while performing official duties as the core, is not only a misreading of the provisions of the mainland constitution and judicial practice, but also the plan for the reform of China's procuratorial system proposed on this basis can hardly be described as scientific.
2. Functional cognition: the legitimacy of legal supervision
The interpretation of the constitutional norms of the nature of legal supervision and its relationship with the procuratorial power actually only answers the question of the constitutionality and legitimacy of legal supervision, and in the current Chinese legal circles, where "words must be called Europe and the United States, and words must be talked about in line with each other", it cannot fundamentally reduce the criticism and questioning of China's procuratorial system by academic circles, and the existence may not be reasonable, and the rule of law should not only be governed by law, but also should be governed by good law. Therefore, in the deepening of the reform of China's procuratorial system, and even in the revision of the Organic Law of the People's Procuratorate, the Civil Procedure Law, and the Administrative Procedure Law, it is necessary to answer another core question: Are the provisions of the current legal system on the mainland on the legal supervision of the procuratorial organs and the exercise of procuratorial power justified and reasonable?
In this regard, some scholars have written that the procuratorial organs on the mainland undertake the function of making accusations, but at the same time, they also supervise the trial activities of the people's courts in the name of the legal supervision organs, just like athletes on the pitch who also serve as referees, which not only leads to the prosecution's litigation status being much higher than that of the defense, but also shows a serious imbalance in the strength of the prosecution and defense, the principle of equality between the prosecution and the defense is in vain, the defendant's constitutional rights are not guaranteed at all, and even the procuratorial power is greater than the judicial power, which is not conducive to the smooth progress of litigation activities. Moreover, it does not conform to the principle that the power of conviction shall be exercised uniformly by the people's courts, as provided for in article 12 of the Criminal Procedure Law.
In the author's view, the above concerns not only run counter to the basic principles of legal supervision in mainland China, but also contradict the empirical analysis of the operation of legal supervision. This is because, as the mainland's legal supervision organs, the procuratorial organs must follow the procedural requirements of the specialization of the objects of supervision, the litigation of the methods of supervision, and the effectiveness of supervision in exercising their procuratorial power and carrying out their legal supervision activities.
(1) The specialization of the object of supervision
The object of legal supervision is not the exercise of all public powers, but the exercise of administrative, adjudicative, and procuratorial powers, that is, the exercise of administrative, adjudicative, and procuratorial powers, as well as the official acts of all state functionaries. According to the provisions of the 2005 Implementation Outline, Party supervision is the supervision of the ruling Party over the implementation of the Party Constitution, Party rules and Party discipline by Party organizations at all levels and all Party members, and the purpose of supervision is to ensure the correct exercise of the ruling Party's power. The supervision of the special government organs includes administrative supervision and audit supervision, the function of administrative supervision is to ensure the smooth implementation of government decrees and improve administrative efficiency, and audit supervision is to supervise the financial revenue and expenditure of the audited unit, economic efficiency, and the implementation of financial laws, regulations and discipline. The CPPCC's democratic supervision refers to the CPPCC's supervision over the implementation of the state constitution, laws, and regulations, the implementation of major principles and policies, and the work of state organs and their functionaries in accordance with the principle of "long-term coexistence and mutual supervision." The object of supervision not only covers the exercise of administrative, judicial, and procuratorial powers, but also covers the exercise of power of the ruling party and all the activities of the power organs. As for social supervision, it refers to the supervision of the operation of state power by the news media, people's organizations such as workers, young women, and social organizations, and individual citizens. If it is said that the supervision of the party and the supervision of the special government organs is a rigid and forceful supervision from the top down, then the democratic supervision of the CPPCC and social supervision are undoubtedly the supervision of power by power, while legal supervision is not only the special supervision of the exercise of administrative, judicial, and procuratorial powers and the official activities of all state functionaries, but also supervision among equal subjects within the constitutional system.
(2) The litigation nature of the supervision method
Legal supervision is not ordinary supervision, and the development of legal supervision by procuratorial organs and the exercise of procuratorial power can only be carried out on the basis of litigation activities and in the course of litigation activities, thus not only distinguishing legal supervision from all forms of power supervision except for court supervision, but also making legal supervision an important component and a powerful guarantee of the people's congress system. As everyone knows, the mainland practices the "government, two procuratorates" system under the people's congress, and the administrative, judicial, and procuratorial powers not only come from the people's congress, but are also responsible to the people's congress and subject to the people's congress's supervision. However, due to the constitutional nature of the organs of power of the people's congresses, although there is a great overlap between the objects of people's congress supervision and legal supervision, people's congress supervision can only be macro abstract supervision, not micro concrete supervision; otherwise, people's congress supervision will not only easily degenerate into specific guidance or even direct instructions for administrative law enforcement activities and judicial affairs, but will also greatly lower the status of the people's congresses, thus in danger of fundamentally shaking or even weakening the people's congress system. However, this does not mean that there is no need for checks and balances between the executive, judicial and procuratorial powers on the mainland, on the contrary, the constitutionalism of any country "means a legal political order, that is, public rules and systems that limit and clamp political power, and the emergence of constitutionalism is related to the restraint of the state and its officials." In order to make up for the deficiencies in restraint and supervision, prevent corruption and abuse of power, and ensure the correct operation of state power on the track of the rule of law, it is necessary to set up a special legal supervision power under the people's congress and give the power to a certain organ to make it a special legal supervision organ. It can be seen that it is precisely the establishment of the legal supervision system that enables the establishment and efficient operation of the power operation mechanism of the separation of powers, checks and balances, mutual cooperation, and mutual restraint under the people's congress system, which not only ensures the organic combination and parallel realization of the principle of people's sovereignty of the people's congress system and the power control requirements of the constitutional construction, but also becomes an important institutional design that fundamentally distinguishes the people's congress system from the separation of powers in the West.
(3) The procedural nature of the effectiveness of supervision
In terms of system design, the legal supervision of the procuratorial organs must be carried out in accordance with the statutory powers and legal procedures, so although legal supervision is mandatory by the state, it only has the power to initiate procedures or make procedural decisions, and with the exception of a very small number of negative disposition powers, such as non-prosecution, the procuratorial organs do not have extensive substantive disposition and adjudication powers. Although the procuratorial organs may exercise procuratorial power to exercise legal supervision over the administrative organs and the adjudication organs, the making and realization of the results of the supervision entity still depend on the adjudication organs and the administrative organs' own judgments and decisions, and the procuratorial organs have not and cannot replace or compel the administrative organs or adjudication organs to make decisions or rulings in accordance with the will of the procuratorial organs. In March 2007, Xiao Yang, then president of the Supreme People's Court, pointed out in his Report on the Work of the Supreme People's Court at the Fifth Session of the Tenth National People's Congress that in 2006, courts at all levels accepted 10,918 protests filed by procuratorates in accordance with the trial supervision procedures, concluded 10,715 cases, and changed judgments in only 2,798 cases, accounting for 26 percent of the cases concluded. According to statistics, in 2005, procuratorial organs submitted 2,200 written corrective opinions to the courts on violations of the law in criminal trial activities, and the courts only corrected 1,581 cases (times), accounting for 71.9 percent. Therefore, on the grounds that the procuratorial organs have the right to supervise criminal proceedings over the adjudication organs, the criticism of accusing the procuratorial organs of being "judges above judges" or "acting as both athletes and referees" obviously cannot withstand the empirical analysis and test of empirical data.
As for the principle of equality between the prosecution and defense, there is no contradiction or conflict with the development of legal supervision and the exercise of procuratorial power. The reason is very simple, the equality of the prosecution and defense is the substantive equivalence of the litigation status of the prosecution and defense, not the complete formal equivalence of the litigation rights and obligations of the two parties. Whether it is the provisions of the Criminal Procedure Law, the development of criminal trial activities, the operation of criminal procedures, or the setting of the procedural rights and obligations of the prosecution and defense, equality between the prosecution and defense on the mainland has long ceased to be an abstract legal principle, but a judicial reality that is being practiced. Although the procuratorial organs have the right to exercise legal supervision over the adjudication organs in criminal proceedings, the defendants and their defenders also have the right to exercise social supervision over the exercise of adjudication, procuratorial and investigative powers in criminal proceedings; Although the procuratorate may raise a prosecutorial counter-appeal and then initiate the second-instance and retrial procedures for the supervision of the adjudication organs, the defendant and his defender may also file an appeal or appeal on the grounds that the adjudicators have abused their adjudication power or the trial procedures are illegal, thereby initiating the second-instance and retrial procedures. Moreover, since it is the basic civil right enjoyed by the defendant and his defender to supervise the public power in criminal proceedings, and the legal supervision of the procuratorial organs is the due duty of the procuratorial organs to the people's congress, the social supervision of the defendants and their defenders is often regarded as the only or main purpose in criminal proceedings, and the legal supervision duties undertaken by the procuratorial organs require that the exercise of their procuratorial power must go beyond and exceed the psychological limitations of the litigants to the greatest extent. In order to ensure the uniform and correct implementation of national laws, and to defend the fairness and justice of the law, it cannot simply win the lawsuit as the goal and direction of its action.
Therefore, it is precisely the specialization of the objects of legal supervision, the litigation nature of the supervision methods, and the procedural characteristics of the effectiveness of supervision that make legal supervision not only have the significance and value of constitutional construction on the mainland, but also play an irreplaceable and important role in the mainland's power supervision system, thus forming a power supervision system with Chinese characteristics, together with intra-party supervision, people's congress supervision, supervision by special government organs, court supervision, democratic supervision by the CPPCC, and social supervision. Of course, confined to the traditional criminal legal culture and the long-term mindset of criminal prosecution, there are still some areas that urgently need to be reformed and improved in the legal supervision activities of procuratorial organs. However, the crux of the controversy over the legitimacy of legal supervision lies not in whether legal supervision is necessary, but in how to properly design appropriate arrangements for the supervision system and rationally put them into practice, so as to realize the legal supervision function of the procuratorial organs in a more scientific, rational, and efficient manner in the development process of the reform of the procuratorial system, and earnestly undertake the constitutional mission of legal supervision and protection of the rule of law.
III. Institutional Reform: The development and improvement of legal supervision
(1) Equal emphasis on rigid control and flexible incentives: the direction of reform of legal supervision
Legal supervision is the eternal mission and duty of the mainland's procuratorial organs, but there are many controversies in academic circles and practical departments over the scope and methods of legal supervision, the external and internal mechanisms of legal supervision, and so on. There is a view that the scope of legal supervision, as a type of public power, should not be too broad, and should be strictly limited to the supervision of criminal investigation, examination for prosecution, criminal trial, and civil trial activities, and that non-litigation activities such as enforcement activities should not be included in the scope of legal supervision.
It is true that the increasingly prominent characteristics of the risk society in contemporary times actually show the lack of state-centered governance capacity and the failure of the traditional legal rigid governance model. Therefore, in the face of the challenge of the risk society, whether it is the adjustment of the social governance structure or the reform of the national governance model, what is diligently pursued is not the concentration and strengthening of state power, but the reasonable limitation of state power and the cultivation and operation of multiple governance structures. However, the reasonable limitation of state power does not mean the reduction and withdrawal of the scope of state power regulation, on the contrary, but the continuous expansion of the scope of state power regulation and control and the moderate weakening of the rigidity of the regulation and control mode, that is, "horizontal expansion and vertical weakening". This is because the significance and value of the existence of the state lies in providing effective normative guarantees and institutional incentives for economic growth, the enhancement of national well-being, and the harmony and stability of social order through the legitimate and scientific exercise of state public power. Just as where there are economic activities, there should be government supervision, otherwise, it is a dereliction of government supervision; In the same way, wherever there is litigation activity, there should be the operation of legal supervision by the procuratorial organs, otherwise it will be a void of legal supervision. With the continuous development and change of social and economic activities, the space of economic activities is constantly expanding, and the government supervision of new economic activities should follow up synchronously. At the same time, the space for new economic activities and litigation activities in the field of social development will inevitably show a growing trend, and the space and scope of litigation supervision must also be expanded simultaneously. Therefore, in this sense, legal supervision refers to the supervision activities carried out by procuratorial organs in accordance with the law over criminal litigation, civil litigation, administrative litigation activities and their necessary extension auxiliary activities, including the supervision of dynamic litigation activities and the supervision of static litigation results. Enforcement activities are not only related to the exercise of administrative power to enforce the right to enforce, but also affect the operation of the judicial power to enforce the right to enforce the award, which is not only a necessary extension and expansion of litigation activities, but also has special chapters on the principles of enforcement activities and enforcement procedures in the three major procedural laws of civil, administrative and criminal law. Therefore, it was decided that the inclusion of enforcement activities in the field of vision of the procuratorial organs' litigation supervision should not only have a legal basis, but should also be further strengthened as a weak link in litigation supervision.
Regrettably, with the exception of criminal enforcement supervision, enforcement supervision in civil cases is not only lacking in the current Organic Law of the People's Procuratorate in mainland China, but also from the perspective of Article 14 of the Civil Procedure Law, the legal supervision of civil litigation activities by procuratorial organs is limited to civil trial activities, and cannot extend to the enforcement activities of courts in civil cases. As for the Administrative Litigation Law, although Article 10 stipulates that the people's procuratorates have the right to exercise legal supervision over administrative litigation and not only administrative adjudication activities, it is not difficult to find from the specific exercise of their procuratorial power in administrative litigation activities that only the principle of Article 64 on procuratorial counter-appeal activities can be found that the legal supervision and exercise of procuratorial power by procuratorial organs over administrative litigation can likewise only extend to administrative adjudication activities. Although Part 6 of the 2005 Implementation Outline, "Strengthening Restraint and Supervision over the Exercise of Power and Ensuring the Correct Exercise of Power," clearly requires that "procuratorial organs should strengthen supervision over the public security organs' case filing and investigation activities, court trial proceedings, and enforcement activities after judgments take effect," this document is actually a guiding document for the ruling party to carry out the work of improving the party's work style, building a clean and honest government, and fighting corruption, and is not a state legal document. Therefore, the author suggests that not only should the supervision of the enforcement of civil cases be included in the scope of the procuratorial organs' legal supervision and the exercise of procuratorial power when the Organic Law of the People's Procuratorate is revised, but also that the Civil Procedure Law and the Administrative Procedure Law should also be amended accordingly. As for the allocation of procuratorial powers as provided for in Article 5 of the current Organic Law of the People's Procuratorates, consideration may be given to revising it as follows: The People's Procuratorates exercise the following functions and powers: (1) Exercising procuratorial powers in cases of crimes that endanger national security and seriously undermine the Constitution and the uniform implementation of laws. (2) Conduct investigations in criminal cases that are directly accepted by the people's procuratorate for filing and investigation as provided by law. (3) Carry out legal supervision of investigative activities in criminal cases, and decide whether to arrest, prosecute, or not prosecute. (4) Initiating a public prosecution, supporting a public prosecution, modifying a public prosecution, or withdrawing a public prosecution in a criminal case. (5) Carry out legal supervision of criminal proceedings in accordance with law. (6) Carry out legal supervision of civil and administrative litigation in accordance with law. (7) Other procuratorial powers provided for by law. At the same time, the word "other" in article 9 "the people's procuratorate shall exercise its procuratorial power independently in accordance with the provisions of the law and shall not be subject to interference by other administrative organs, groups or individuals" is deleted, so as to make this provision of the Organic Law of the People's Procuratorate consistent with the Constitution, and further avoid unnecessary theoretical disputes over the nature of legal supervision due to improper expression of legal terms.
Here, it should be made clear that the purpose of litigation supervision is not to settle disputes and end disputes, but to ensure the proper exercise of state public power in litigation activities in accordance with the law. Therefore, in civil supervision activities, although the procuratorial organs are given the right to investigate facts and collect evidence in accordance with the law, the scope of investigation and evidence collection should be limited to whether there is abuse of power, dereliction of duty and other dereliction of duty or procedural violations in the exercise of administrative power and adjudication power and the operation of procedures. There is not only a risk of confusing the roles of civil supervisors and the parties to civil cases, as well as adjudication organs and administrative law enforcement agencies, but also violates the basic principles of civil litigation and relevant legal provisions.
As for the selection and operation of supervision methods under the modern litigation supervision theory, it is necessary not only to effectively realize the supervision and restraint of the exercise of public power, but also to scientifically encourage the public power organs in litigation activities to continuously explore their own potential, and to further promote the innovation of social management and the realization of social fairness and justice while actively and efficiently resolving social contradictions. At the same time, efforts should be made to move litigation supervision forward, and a new type of litigation supervision model should be constructed, with ex-ante supervision and ex-post supervision as the mainstay, supplemented by ex-post supervision.
(2) Self-restraint and external supervision go hand in hand: the establishment and development of the people's supervisor system
After seven years of experimentation, the people's supervisor system has been fully implemented in procuratorial organs across the country since October 2010, which not only marks a new stage of people's supervisor work in an all-round development, but also makes the relevant legislation of the people's supervisor system an important issue that needs to be studied and solved urgently. The author believes that the people's supervisor system certainly needs to be legalized in order to ensure that the function of the system can be fully and effectively brought into play, but the functional orientation and essential attributes of the people's supervisor system are undoubtedly the premise of the entire system design, and they are also the key to the benign operation of the people's supervisor system.
From the point of view of judicial checks and balances, criminal proceedings need to meet at least three basic principles: first, the principle of due process. When judicial organs deprive criminal suspects of their personal rights and property rights, they must strictly follow the necessary legal procedures, which requires procedural regulation of the powers of judicial organs, and an important way of such regulation is to set up supervision means for the participation of the people, and the people's supervisor system has played a very good role in this regard. Second, the basic concept of a society governed by the rule of law requires that the public power of the state and the private rights of the people can be checked and balanced with each other in order to achieve a win-win situation between public order and private interests. The people's supervisor system not only ensures the full participation of the public in judicial practice activities in terms of system and procedure, but also plays a very good role in supervising and restraining the exercise of public power by the procuratorial organs, thus further ensuring that the functions and roles of the procuratorial organs can be fully utilized. Finally, from the perspective of human rights protection, the basic purpose of criminal proceedings should be the combination of punishing crimes and protecting human rights, and the idea of protecting human rights should be reflected in the entire process of litigation.
As a judicial democratic method pioneered by procuratorial organs in mainland China, the people's supervisor system is not only a product of the scientific development of the reform of the procuratorial system, but also an innovative measure for the masses to participate in judicial practice. Therefore, people's supervisor supervision should be a kind of social supervision, and in this sense, it is not fundamentally different from public supervision, media public opinion supervision, and netizen supervision. At the same time, people's supervisor supervision is different from traditional social supervision, in that it is uniformly organized and actively invited by the procuratorial organs, and it is more professional and authoritative than traditional social supervision. Therefore, people's supervisor supervision is actually in the middle ground between ordinary soft social supervision and the rigid power supervision of the people's congress, which not only has certain particularities, but also fills the gap in the external supervision mechanism of legal supervision. As a kind of social supervision and external supervision, the people's supervisor system is not only an innovation in the work mechanism of the procuratorial organs, but also shows the open-mindedness and upright spirit of the procuratorial organs in consciously demanding social supervision and taking the initiative to accept social supervision. Of course, the key to the representativeness and effectiveness of people's supervisor supervision lies in the expansion of the scope of people's supervisor selection and the fairness and efficiency of the selection procedure, so the extensiveness of the selection, the management of the performance of duties after selection, and the scientific and rational operation of the supervision mechanism are the core of the entire system, and they are also the focus of our research and attention. Among them, the people's supervisors' right to know about the matters to be supervised and the cases to be supervised are also the fundamental prerequisite for the people's supervisor system to truly play a role and produce practical results, but at the same time, attention should be paid to doing a good job of case secrecy work, so in actual operation, the case secrecy work and the people's supervisors' right to know should be combined, and a balance between the two should be found, so as to prevent the people's supervisors from hastily supervising and to ensure the strict protection of case secrecy matters. In addition, the time limits for handling cases stipulated in the Criminal Procedure Law must be strictly observed, so the supervision work of people's supervisors must be organized and carried out in a timely manner in accordance with the law, which requires that when a supervision situation occurs, the administrative organs must not only organize the people's supervisors to perform their duties and supervise in a timely manner within the statutory time limit, but also ensure that the people's supervisors have sufficient time to understand, consult, and evaluate the supervision matters, so as to truly ensure the effectiveness of supervision.
As for the path of legalizing the people's supervisor system, the author believes that the formulation of a separate people's supervisor law does not seem necessary, after all, the people's supervisor system is only a kind of social supervision in the external supervision of procuratorial work, and it is not only different in nature from the supervision of the people's congress, but also different from the people's assessor system in terms of function and positioning, so the direction of the legalization of the people's supervisor system should be commensurate with its nature and positioning, and it should be gradually and deeply advanced in stages, and the relevant normative documents of the procuratorial organs should be sorted out and refined. On the basis of further standardizing and consolidating this achievement in the reform of the procuratorial system, consideration may be given to adding relevant provisions of principle to the corresponding provisions of the Organic Law of the People's Procuratorates, for example, adding a special provision to the Organic Law of the People's Procuratorates to be amended whereby people's supervisors exercise people's supervision over the investigation and initiation of public prosecutions in cases directly accepted by the procuratorial organs. In this way, the legalization of the people's supervisor system is based on the principled provisions of the Organic Law of the Procuratorate and the specific provisions of the relevant normative documents on the working mechanism of the people's supervisors of the procuratorial organs, and operates in parallel from the macro and micro levels, which not only conforms to the nature and function of the people's supervisor system, but also ensures the level of legalization of the people's supervisor system and the authority of its provisions.
IV. Conclusion
It is important to remember that human constructs are a mixture of "rational" beliefs and "irrational" circumstances, which together influence the choices made by human beings. No economic model or institutional framework can characterize the complexity of economic growth and social change in a given society. Even though the sources of productivity growth are well known, the process of economic growth and social change is different in each society. This reflects different cultural heritages, as well as different geographical, physical and economic environments. It is determined that any kind of humanities and social science research must understand the process of economic growth before making suggestions to the government and the public to improve economic performance and improve the well-being of citizens. Before proposing a theoretical system or viewpoint that attempts to change the structure of society, it is necessary to understand the unique temperament and endowment of this society. In order to effectively carry out institutional change, it is necessary to understand the complexity of institutional change and the synthesis of knowledge required for it. Otherwise, institutional change and its implementation, regardless of environmental adaptability, may lead to not only disappointment, but even disaster. Latin America countries transplanted the United States constitution after independence, but the results were very different.
As a country with a backward rule of law, the mainland naturally needs to track and grasp the cutting-edge trends in the development of foreign procuratorial systems and the research on procuratorial theories, whether it is the reform of the procuratorial system or the research on basic procuratorial theories. However, catching up is not for the sake of following, law is the study of the world, and the study of procuratorial science is even more so. Only when China's procuratorial research returns to China's social reality, adheres to the ultimate realistic concern, and is deeply rooted in China's judicial practice, can procuratorial theory research and its achievements be called scientific, and the suggestions and suggestions of legal experts can truly be of guiding significance for the reform of the procuratorial system.
Source: Political and Legal Forum, No. 3, 2012, pp. 171-178
Author: Tian Hongjie, Doctor of Law, Postdoctoral Fellow in Finance, Professor and Doctoral Supervisor of Criminal Legal Science Research Center of Chinese People's University
Wen Changjun is Deputy Procurator General of the People's Procuratorate of Dongcheng District, Beijing, and a visiting professor at Southwest University of Science and Technology
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