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Research on Contemporary Chinese Legal Supervision Power

Author: HanBing
Tutor: YaoJianZong
School: Jilin University
Course: Legal Theory
Keywords: Legal Supervision Power System Origin Theoretical Arguments PracticalDifficulties Institutional Reconstruction
CLC: D926.3
Type: PhD thesis
Year: 2013
Downloads: 246
Quote: 0
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Abstract


Power and power restriction mechanism are the two together and going on handin hand. If we want the power to get effective operation, supervision and restrictionpower is the effective mechanism. The contemporary Chinese legal supervision poweris found among the power pattern through the system and mechanism setting up itsown independence, ensuring that the real power is operating lawfully, fairly andeffectivly to achieve the maximization of public interest and to protect the most widelycivil right, then to promote our country’s development process of the construction ofconstitutionalism and the rule of law.Power is an important category under the context of constitutionalism and the ruleof law. Procuratorial organs’ legal supervision is the effective mechanism of the powerrestriction and supervision that can ensure the constitution and the law into theimplementation. Legal supervision and legal supervision power is the core of thissystem to support it can function earnestly terminology. Therefore, to research on thecontemporary Chinese legal supervision law, whose premise is through grasping theconcept and features of legal supervision and legal supervision power with its relatedsystem, discussing Chinese and western power supervision and checks and balancesthought origin and drawing lessons from Chinese and foreign ancient and modern mainsystem of supervising and restricting power, then, fully grasping the establishment andthe formation, tortuous development and recovery and the latest development ofChinese procuratorial system. On that basis, we should deeply research the theory ofthree competing theories on legal supervision and practical difficulties that existing inthe legal supervision system. Finally it is concluded that the prosecution of the contemporary Chinese procuratorial organs is the independent legal supervision powerunder the people’s congress system. And then, the core of the contemporary Chineselegal supervision system is to intensify the prosecutorial power that procuratorialorgans possess. Namely to reform and perfect the judicial system, including theprocuratorial system, is just to strengthen the legal supervision of procuratorial organspossessing and to fully implement the legal supervision duties.The prosecutorial power that contemporary Chinese procuratorial organs possessis a kind of independent legal supervision power, which performances to have aposition of power to supervise and restraint other power to ensure right, legal and fairoperation orbit in the concrete operation, and adopts the final purpose ofconstitutionalism and the rule of law of comprehensively supervising public power andguarantee for the civil right. The theory of legal supervision and legal supervisionpower is beneficial to further improve the system of legal supervision. Procuratorialorgans performing legal supervision power can advance to safeguard the goals of theunity and the implementation of the law. It is very important to the construction of amodern rule of law country.Legal supervision is the technical terms of the China’s procuratorial theoryresearch and in the rule of law practice. In the constitutionalism and the rule of lawcontext condition of our country, legal supervision refers to specialized state organsaccording to the authorization of the constitution and laws, using the means andprocedures as provided by law, about the law enforcement with protecting the legal,checking and balancing the national power and protecting the rights of citizens andother details, do the specialized work that monitor, supervise and produce the legaleffect. Research on contemporary Chinese legal supervision power, which can furthergrasp the function, the significance of constitutional government, and the rule of law oflegal supervision system. This article mainly includes five parts:The first part, with the concept of legal supervision as the logical starting point,through the interpretation the connotation and denotation of legal supervision in thecontext of China’s constitutionalism and the rule of law, to define the concept of legal supervision. To deeply analyze the legal supervision, we see that it has three majorcharacteristics of specialized, procedural, legal, and that all respective uniqueconnotation. And then to deduce the Chinese characteristics legal supervision powersystem should be with the core of public prosecution supervision, and the full supportof duty crime detection power and lawsuit supervision power, and its main purpose isthrough the sue criminals and correct illegal actions in law enforcement to protect legalnationwide unified and correct implementation.The second part, To recognize the legal supervision with profound ideologicalorigin, among them, the western thought of separation of powers and checks andbalances, the Soviet socialist country supervision thought and the legal supervisionthought with Chinese characteristics, those all provide beneficial ideas support to buildour legal supervision system. Research on the origin of legal supervision power system,considering that the suggestion and supervision system in ancient China, theprocuratorial system of France and the Soviet union’s procuratorial system,etc, theirformation, development and change course, the specific powers and the systemfunction, the characteristics and advantages and disadvantages,those all are for the thecorresponding system roots to form the contemporary Chinese legal supervisionsystem in a certain extent. A reading of contemporary Chinese legal supervisionsystem of its production and evolution, the preliminary establishment formation,tortuous development, recovery and return etc to the historical development process,thinking that the legal supervision system is a necessary choice of constitutionalismand the rule of law construction in contemporary China, should be unswervinglydeveloping.The third part, a reading on the theoretical arguments about the contemporaryChinese legal supervision power, namely about the nature of administrative powerm,the nature of the judicial power, and the administrative judicial dual power said withthe core of the theory viewpoint and the reason, and to make the correspondingtheoretical analyses. We realize that the theoretical arguments about the contemporaryChinese legal supervision power is caused by the lack of thorough understanding on the basis of the platter about the practice of Chinese constitutional government systemfrom different points of view between scholars, is the lack of a basic consensus on thepremise of each said, those three fail to clarify the fundamental attributes of legalsupervision power in our country. And we think that the contemporary Chinese legalsupervision power is the independent supervision power of the National People’sCongress system. The legal supervision of procuratorial authority should be asindependent supervision power in our country. There is quite system superiorrationality.The fourth part, A reading on the practical difficulties of contemporary China’slegal supervision power system, Including its own system difficulties and actualoperation difficulties. The former mainly refers to the constitutional position which isdifficult to implement and external mechanisms difficulties and the relationshipbetween procuratorial organ and the party’s discipline inspection commission makingprocuratorial work to be a mere formality, etc. The latter refers to a case supervision,duty crime investigation and supervision, litigation supervision, the conclusionpractical operation supervision and execution supervision, etc.The fifth part, to point out that strengthens procuratorial organs legal supervisionresponsibility, it is necessary to reconstruct the contemporary Chinese legalsupervision power system. We mainly adopts promoting the contemporary Chineselegal supervision’s power level, optimizing the practice mechanism of contemporaryChinese legal supervision power system and formulating unified legal surveillance, etcinstitutionalized way to complete the reconstruction.

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CLC: > Political, legal > Legal > Chinese law > Justice system > Procuratorate
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