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Procuratorial right

Author: PanHuaiXiang
Tutor: YangWenBin
School: Anhui University
Course: Legal
Keywords: procuratorial organ legal supervision right of public prosecution right to advising penalty
CLC: D925.2
Type: Master's thesis
Year: 2007
Downloads: 371
Quote: 3
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Abstract

It is in accordance with law for the procuratorial organ to carry out legal supervision on the whole process and criminal litigation of all aspects. Penalty measurement, both in terms of the process and of the result, should be one of the important targets of legal supervision by the procuratorial organ. That penalty measurement should be such a target can also be justified as regazd to safeguarding human-rights and protecting fairness and justice. The noumenal value of the right to advising penalty consists in realizing the substantive justice and the procedural justice, which are the value target of criminal litigation. Its purpose value lies in litigation economy and judicial efficiency. The thesis elaborates on the right of the procuratorial organ to advising penalty from four aspects. Part one attempts to delineate and define the right to advising penalty in theory. Part two explores the operation of penalty advising system from the overseas judicial practice. Part three centers on the necessity for the exercise of the right of the procuratorial organ to advising penalty. In the last part, efforts are made to search for a proper way for the environment, conditions and methods of the standardized exercise of the right to advising penalty in today’s China.First, the right to advising penalty is a claim for penalty based on the right to public prosecution, derived from the legal supervision function of the procuratorial organ. Specifically, the right to advising penalty means the right of the procuratorial organ to advise and require judicial organ to administer certain penalty to the defendant on behalf of the state during court hearing, raising relatively specific requirements on the penalty type, prison term, fine amount and execution method. Its constitutionality, legitimacy and human-rights safeguarding nature are based on the theory of constitutionalism, hence it is consistent with the fundamental principles of modern criminal procedure.Second, the judicial practice of penalty advising system abroad shows that both the Anglo-American law system and the continental law system have endowed the procuratorial organ universally and definitely with the right to advising penalty, which is exercised by the procurator during litigation filing. The penalty advising system of the Anglo-American law system is characterized by the fact that it is part of an integral and independent penalty procedure. That of the continental law system is manifested by a series of regulations and common practice involving the procurator making suggestions on penalty during the course of litigation and their effect on the judge.Furthermore, the present excessive discretionary power of judges in China is conducive to the unfairness and regional imbalance of penalty measurement. Due to the limitation of the public prosecution power of the procuratorial organ now, penalty measurement supervision is lacking and penalty advising is repressed in reality. Under such circumstances, it is self-evident that to endow the procuratorial organ with the right to advising penalty is a task of necessity, importance and urgency. The establishment of the penalty advising system is sure to safeguard the judicial cleanness and fairness, penalty measurement openness, to increase the rate of in-court pronouncement of judgment, to reduce the number of appeals and petitions of the parties, as well as to increase the legal knowledge and improve the legal awareness of the citizens.Last but not least, on the basis of an examination of the duty of the procuratorial organ of the right to advising penalty, it is further made clear that the direction of penalty advising should be proposing a relatively precise scope of penalty within the statutory punishment It is proposed that the right to advising penalty should be clarified and improved by legislation and that the standardized operation mechanism. of the penalty advising system should be established and perfected to inflict regulations and rules on the determination and correspondent liability of the abuse of power and dereliction of duty of the subject of right.All in all, to entrust the procuratorial organ with the right to advising penalty conforms not only to the principle of Proportionate Punishment to Crimes (PPTC) in individual cases but also to the principle of equality of application of criminal laws among different judgments. Penalty advising will open the "camera obscura" of penalty measurement so that the defendant and the procurator can play equal roles in sentencing, and adversary sentencing in criminal courts can gain prominence. It is an integral part of the legal supervision of the procuratorial organ, an important form of sentencing supervision, an important means to protect human rights, safeguard social fairness and justice, and promote social harmony to construct penalty advising system.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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