The Legislative Principles of the Prosecutorial Power
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- Last updated：2021-01-08
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The Principle of Substantive Discovery of Facts
A prosecutor takes responsibility for investigations of crime on behalf of the state. In order to discover the facts, he/she may use necessary means to investigate evidence. The code of Criminal Procedure provides the prosecutor with the power to summon, arrest, interrogate and detain the suspect as well as the power to search, attach and inspect those persons or property involved with an committed crime. Through the use of such powers, the facts are to be discovered so as to ensure proper and impartial administration of public prosecution. If a prosecutor initiated prosecution without fulfilling his/her duty to conduct substantive investigation, with the passage of time and changes in circumstances, the court may not be able to establish the facts when it conducts the trial.
The Principles of Statutory and Discretionary Prosecution
Whether a prosecutor has the authority to decide to or not to prosecute depends on the different principles adopted by the legislature. The principle of statutory prosecution stipulates that a prosecutor shall initiate prosecution by filing an indictment with the court when he/she considers that the committed offence meets the legal requirements for prosecution. However, according to the principle of discretionary prosecution, though the committed offence is found to meet the legal requirements for prosecution, the prosecutor, based on policy consideration, may decide not to prosecute the crime. The code of Criminal Procedure makes the statutory prosecution the rule and the discretionary prosecution the exception. For instance, the statutory prosecution is clearly stipulated in Article 251, of the code of criminal procedure, which prescribes that if evidence obtained by a prosecutor after investigation is sufficient to prove that the accused is suspected of having committed a crime, a public prosecution shall be initiated. In contrast , Article 253 of the code of criminal procedure stipulates that if a prosecutor considers it appropriate not to prosecute a case involving one of the offences specified in article 376 of the code of criminal procedure, after having taken into consideration the provision of Article 57 of the Criminal Code, he/she may decide not to prosecute. Another exception is Article 254 of the Code of Criminal Procedure which states that if the suspect commits several offences for one of which he/she has received or may receive a sever sentence, a prosecutor may decide not to prosecute for the other offences which he/she considers will not seriously affect the execution of the sentence.
The principle of Single Prosecutorial Body
According to the Law Governing the Organization of the Court, a prosecutor functions independently from the trial court, A prosecutor is authorized to issue an indictment, a written disposition of non-prosecution, a written disposition of non-prosecution, a written appeal and a reply in the prosecutor's own name. Nevertheless, the Principle of Single Prosecutorial Body has been adopted in order to maintain the solidarity and the integrity of the prosecutorial power, i.e., from the Prosecutor General of the Prosecutors Office at the Supreme Court down to both prosecutors offices at the high court and district court, all the prosecutors offices are vertically connected and constitute a single body. The principles are described as follows:
The procedures for handling cases of reconsideration are as follows: