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On the Necessity of the Civil Prosecution

Author: DengYao
Tutor: ShaoJianDong
School: Nanjing University
Course: Legal
Keywords: civil procuratorial system civil counter-appeal principle of prudence
CLC: D925.1
Type: Master's thesis
Year: 2013
Downloads: 233
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Abstract


In accordance with the provisions of the Constitution and the Organic Law of the civil procuratorial system, the people’s procuratorial organs are State organs for legal supervision. However, along with establishment of the civil procuratorial system, there were dispute on its actual roles, affections on public affairs as well as rationality of its existence. In the edited Chinese Civil Procedure Law (2012edition), some articles about the civil procuratorial system have been edited, including several specified and expanded reasons for review process, clarified review period, enhanced the level of people’s courts that able to hear counter-appeal from procuratorial organs, increase the procuratorial suggestion.etc. The edited Chinese Civil Procedure Law helps to perfect the procuratorial rights and power.This thesis is based on the edited Chinese Civil Procedure Law, and discusses the fundamental principles of civil procuratorial system. First, in terms of power distribution, the procuratorial power is authorised by the People’s National Congress, this is where its rationality comes from. The civil procuratorial power is used to balance the judicial power of the court. Since the value of justice priors to the value of efficiency, establish the civil procuratorial organs as a specialized supervision organs do make sense. Secondly, in terms of power restrictions, china doesn’t have the supervision system which exist in western countries where the executive, legislate and judicial power is separated. Additionally, china doesn’t have a tradition that the judicial system is neutral. Those make the external supervision of judicial power necessary. At last, we will discuss the terms of the Civil Procedure Law.Although there are dispute on the rationality of the civil procuratorial system in academy, opposite views insist that the civil procuratorial system will destroy the res judicata system, as well as the balance between the clients. In my opinion, that in the view of res judicata of civil judgments, if we compare the three purpose of res judicata with the justice of law, we will find that the res judicata system is not a system that can’t be challenged. The purpose of civil procutorial system is to balance the judicial power and to ensure the law is practiced properly. The civil procuratorial system is on the premise that the authority of the court is respected. The role of the procuratorial organs is the supervisor and it will not take place of the judicial power. Secondly, what the civil procuratorial system affects is the interest of the parties other than the right of the parties. In reality, there may be several situations where the position of the parties is not balance. The involvement of the procuratorial organs is to restore it and keep the balance. Most people hold the view that the procurotorial organs’right of investigation is with boundaries. Thirdly, based on China’s current legislation situation, there are two major problems, one the neutrality of legislation system, the other one is litigants receive too few legal remedy. The lately achievement of procuratorial work shows the necessary of procuratorial system. The procuratorial system is part of the Chinese socialist and judicial system.Lastly, the principle of prudence is one of important connotations along with the establishment of the civil procuratorial system, the rightfully execution of civil prosecution can help elaborate the civil procuratorial system as well.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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