중국 검찰권 행사의 기본원칙에 관한 소고

Abstract

South Korea's constitution is in principle divided into the legislative, the judicial and the administrative branches. In South Korea, prosecutorial power is under the control of administrative power. Under the continental law, prosecution is called as "quasi judicial authority". Unlike South Korea, China has National People's Congress which is power centered system. Under National People's Congress system, National People's Congress has a leading and governing position. Administrative institutions, justice agencies and prosecution are responsible for National People's Congress and supervised by National People's Congress. Administrative institutions, justice agencies and prosecution are established under the supervision of National People's Congress. Administrative institutions exercise administrative power and justice agencies exercise judicial power and prosecution exercises supervisory power respectively. In other words, prosecution is subordinate to National People's Congress but has independent legal status as national institution. As Chinese prosecution system reflects characteristics of Chinese legal culture, inquiring historical development and characteristics of Chinese prosecution system helps understand historical necessity and realistic rationality of Chinese prosecution system. This paper examined development process of Chinese prosecution system, pre modern Chinese prosecution system, modern Chinese prosecution system and present Chinese prosecution system and constitutional status of prosecution and organization of prosecution. This paper studied six basic principles - principle of independent exercise of prosecutorial power in accordance with law, principle of objectivity and fairness, principle of public interest, principle of safeguard for human rights, principle of uniformity of prosecutors and principle of supervision- which should be observed when prosecution and prosecutors observe in exercising prosecutorial power. The above mentioned six principles reflect a basic need for exercise of prosecutorial power, discipline of exercise of prosecutorial power, supervision on legislation and prosecution affairs. In addition, the principles reflect awareness of nature, status, function and organization of Chinese prosecution and serve as guidance when prosecutors perform their duties and standards that prosecutors judge legitimacy in exercising prosecutorial power.