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Research of the System of Case Guidance for Prosecution

Author: YinYanRong
Tutor: PanJinGui
School: Southwest University of Political Science
Course: Procedural Law
Keywords: procuratorial organs case guidance system guiding case
CLC: D926.3
Type: Master's thesis
Year: 2012
Downloads: 10
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The system of case guidance for prosecution is a judicial system of chinese characteristics,which isthat the supreme people’s procuratorate is based on the attorney practice,select universal guidingsignificance cases to provide guidance and reference for procuratorial organs and promote a fairimplementation of harmonization of laws.researching the system of case guidance for prosecution, it makeefforts to solve the problem of two levels: first, the necessity and value of theoretical level, the second isthe practical level of the system design and operation rules.This article is about30,000words,divided into five parts,:The first part is an introduction. This section introduce the background of establishment of the systemof case guidance for prosecution, and make a distinction between the procuratorial organs case guidancesystem and the case of judicial interpretation of the supreme people’s procuratorate, the court system’s caseguidance system and the precedents of the common law, and then point out that the nature of the system ofcase guidance for prosecution is a system of judicial application.The second part discusses the theoretical value and practical significance. At the theoretical level, thesystem of case guidance for prosecution is good for making up the statute of limitations, such as lag,abstraction, generality and so on, constructing the operational guidance system with mainly of judicialinterpretation and supplement of guiding cases, enhancing the adaptability of law enforcement of theprocuratorial organs; at the practical level, he system of case guidance for prosecution is conducive to aunified law enforcement standards, improve the work efficiency of the procuratorial organs; conducive tostandardizing the procuratorial organs discretion, and promote judicial justice; beneficial to play theprosecutor’s judicial activism, improve the level of prosecution investigators.The third section describes the basic content of the system of case guidance for prosecution.Combining the provisions of the work of case guidance which released by the supreme people’sprocuratorate and the practical operation,it try to introduce the basic content.,including.selectedmechanisms, recognition mechanisms, and release mechanism.The fourth part analyzes the operation status and problems of the system of case guidance forprosecution. Since the provisions of case guidance, the supreme people’s procuratorate released only threeguiding typical cases, the practice is also not ideal. The reasons are the following problems: guidance effectis not clear, applicable rules unscientific; selected standards are not uniform, the release form is notstandardized, the mechanism of abolish is not established, public participation mechanisms is lacked in theprocess of confirmation; the matching system of the case selected incentives and the system of the legalinstruments reasoning for prosecution are imperfect.The fifth part is the focus of the article, which suggest general consideration on the questionsabove.the procuratorial organs case guidance system should be improved in the following aspects: the effect of typical cases should be clear in the legislation, after the promulgation of the guiding typical cases,people’s procuratorates at all levels should refer to the corresponding guiding typical cases in handingsimilar cases or setting similar issues.through the establishment of a system of filing a written opinion tohigher level procuratorial organs as they consider that corresponding guiding cases should not be followedand introduction of the parties and counsel of oversight mechanisms to protect the guiding case of legalbinding force; in order to ensure the quality of the typical cases, the process of selecting guiding casesshould abide by three principles of legitimacy, in line with the policy, the necessity of guiding cases and theform of standards and substantive standards should be established. On the format of release, focusing onrefining the essence of universal guiding significance and description of the processing reason, and using ofnetwork technology to establish a public inquiry system for guiding typical case. Finally, it should be toimprove case selected incentives mechanism and the system of legal instruments reasoning forprosecution to support mechanisms for guiding case running...

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