【作者】 马秀卿；

【导师】 刘根菊；

【作者基本信息】 中国政法大学 ， 诉讼法学， 2008， 博士

【摘要】 公诉权是现代法治国家的一项重要的国家权力,也是刑事诉讼中最活跃的因素。公诉权并非与刑事诉讼同时出现,而是随着国家在刑事诉讼中追求更广泛和深刻的利益、承担更多的社会责任而发端、发展和成熟的。公诉权的出现,为刑事诉讼带来了意义深远的影响,使刑事诉讼成为国家法律运行中一个极为特殊的程序,并导致了刑事诉讼的复杂性。公诉权是一种法律现象,从根本上讲是一种社会现象,是在社会变迁的过程中,为满足不同社会发展时期国家和社会对犯罪追诉的不同要求而产生的国家权力。这是公诉权在不同的社会之间横向和纵向的比较中呈现出不同样态的根本原因。因此,以法律社会学为研究方法和工具,将公诉权放置于刑事诉讼和法律制度之外的更广阔的社会背景当中去研究,对于明确公诉权服务的真正对象、厘清公诉权产生、发展和发达的动因、揭示公诉权与社会发展的辩证关系,以及探究公诉权在社会和谐的实现中的作用,提供了一种更为现实的研究思路。公诉权是刑事诉讼发展到一定阶段,作为私诉权的替代物出现的。公诉权对私诉权的取代,是由于社会在发展过程中,有一些要求已经是私人追诉犯罪所无法满足的。具体讲,(1)刑事纠纷的复杂化所导致的无具体被害人的犯罪的日益增多,(2)社会对降低犯罪追诉成本的需要,(3)社会对纠纷解决的伦理正当性要求和(4)国家统治理论和技术的发展、成熟,是创设一种更具有普遍性、更高效、更正义、更强力的犯罪追诉力量的社会机缘。公诉权因此而产生,就是顺理成章的了。公诉权因一定时期的社会需要而产生,也随着社会的变迁中所产生的新问题、新需求而不断调整自己对犯罪的追诉理念和手段。在社会与国家逐渐分离并对立,社会力量不断壮大的过程中,公诉权在程序上与审判权分离,与辩护权趋于平等,在不同程度上将追诉权利交还被害人;在实体上,加强对危害个人安全犯罪的追诉,退出一些私人生活领域,通过对公务犯罪的追究监督国家权力。在文化的变迁中,公诉权随着社会伦理道德的变化发展、宗教力量的由强到弱、科学技术的进步和发展,在刑事实体与程序等方面不同程度地调整着对犯罪的追诉。经济的变迁对公诉权的影响是基础性的。经济的发展刺激了新的犯罪主体的产生,引起新的社会矛盾,引起社会对人们行为的普遍评价的变化,引起犯罪率的升高,这些,都影响国家运用公诉权的实体范围;同时,经济的发展为公诉权的行使提供了更为丰富的资源,促进人们思想观念的随之更新,引起了公诉权在行使方式和手段上的变化。公诉权应社会需要而产生,又随着社会各层次和各因素的变迁而变化、发展,成为世界范围内通行的犯罪追诉力量。在现代法治社会,公诉权的主要社会价值有:维护社会秩序的价值、节约社会资源的价值、实现社会理性的价值和实现社会正义的价值;公诉权的主要社会功能有:利益保护功能、利益平衡功能、权力制约功能和国家刑罚权的程序启动、推进的功能。传统的中国社会中只有具有公诉权性质的权力,而没有现代意义上的公诉权。传统的中国社会,实行封建皇权统治,只有臣民而无公民,因而社会普遍崇拜、仰视权力,而权利意识淡薄。因此国家追诉犯罪的权力不独立,启动随意,权力严酷、暴虐,不受辩护权的制约;传统的中国社会礼治力量强大,因而国家追诉犯罪的权力范围广泛而模糊,礼的标准是国家追诉犯罪权力的思想基础,无法产生专业的犯罪追诉权力行使者。传统的中国社会,以整体的和谐和稳定为普遍的价值取向,因而难以产生真正制约国家追诉权的权力和权利,国家犯罪追诉权介入个人、家庭等私生活领域,并以“中罚”为追诉犯罪的指导思想;传统的中国社会,社会成员普遍以重具体个别,轻一般抽象为思维特点,因而法治不兴,追诉犯罪的权力只重具体案件中的实体正义,而不重视普遍适用的程序正义。中国社会的现代化进程始于清朝末年,而中国公诉权的现代化则是从清末修律开始,具有现代化意义的公诉权从此被引入中国。近一百年来,中国的公诉权经历了清末、北洋政府时期、民国时期和中华人民共和国时期。以经济体制改革为先导,从上世纪七十年代末开始的改革开放,使中国社会进入了重大变革的社会转型期。这是中国公诉权发生深刻变化的时期。在近三十年的时间里,中国社会公民精神和权利意识日益彰显和觉醒,使公诉权的观念从过分强调追诉犯罪转向追诉犯罪与保障公民权利相结合,公民拥有了更多的权利制约公诉权,公诉权本身也受到了更多的限制;中国社会逐渐从传统的熟人社会向陌生人社会转变,对公诉权提出了新的要求,构成了新的挑战;社会分层已成现实,而社会成员中机会平等的愿望和要求却更加强烈,使公诉权在行使时更关注与被追诉方的平等地位,被追诉方获得更多与公诉权平等对抗的机会和资源,公诉权平等地对待权力对象,同时又必须以区别对待的方式弥补社会分层所带来的事实上的不平等;和谐的观念从传统的强调个体义务和整体稳定,转向个体全面发展的有活力的和谐,使公诉权在追诉犯罪时,既追求国家和社会的整体利益,又充分尊重当事人的合理意愿,更为积极地促进刑事纠纷在当事人之间、国家与被追诉人之间的和平解决。公诉权是推动和保障社会顺利、成功转型的力量。因此,在可以预见的、将会持续相当长时间的社会转型期,公诉权要在三对矛盾之间不断调整,以实现其任务:一是保护秩序与保障权利的矛盾;二是公诉权的传统继承与现代化的矛盾;三是公诉权的理想与现实的矛盾。更多还原

【Abstract】 The Power of Prosecution is recognized as one important state power of modern nations ruled by law,and is also the most active element in the criminal procedure.Power of Prosecution was not born together with criminal procedure.The birth,growth,and getting mature of the Power of Prosecution was associated with the state’s pursuit for more extensive and inner interests through criminal procedure,together with the state’s action to undertake more social responsibilities.The arising of the Prosecution Power brought meaningful impact to criminal procedure which is developed into a very special model within the context of legal operations. And complicity of criminal procedure was increased by the involvement of such power.The Power of Prosecution is a kind of phenomenon of law,and to its core,a phenomenon of society,which is a state power created to meet the differing requirements of state and society for the investigation and accusation of crimes at different stages during the evolution of society. That’s the real reason why different features appear when vertical and horizontal comparisons of Prosecution Power among different societies are carried out.Therefore,it provides us a more realistic route for analysis when we make research on the Prosecution Power by taking sociology of law as our methodology and tool.By doing so,the Prosecution Power,as the object of our research,is posed at a more broadened background besides the shadow of criminal procedure and sole legal system.It’s helpful for us to identify the real party served by Prosecution Power,to make clear the fundamental motivation of the arising,developing and growing up of Prosecution Power,to undercover the relationship between Prosecution Power and social development,and to disclose the function of Prosecution Power in the endeavor for the realization of social harmony.The Power of Prosecution is created as the replacement of private prosecution at certain stage during the development of criminal procedure. The replacement of private prosecution by Prosecution Power in the period of social evolvement is due to the reality that certain social needs could not be satisfied any more by private prosecution.Those social needs include, specifically,(1) the increasing of the amount of crimes where no specific offended exists due to the amounting complexities of criminal cases.(2) the society’s calling for the lowering of the cost for the eliminating of crimes. (3) the requirement of society for the moral justifications in the settlement of social disputes.(4) the growth and full development of the theory and technology of state ruling should be deemed as the social orientation for the creation of a crime investigation and accusation force which is more widely accepted,more efficient,more justifiable,and more powerful.The creation of Prosecution Power is,therefore,the natural fruit of social development.The Power of Prosecution is created upon social requirements at certain stage,and is making self-regulation from time to time with the guiding lines and methods along with the arising problems,the new requirements during the gradual change of society.In the process of gradual separation and opposition between society and state,and incremental growth of social force,from the view point of proceedings,the Power of Prosecution is separated from the power of trial,getting to be equal with the right to defense.And,to some different extents,the power of investigation and accusation on crime is given back to the offended.As to the power itself,the investigation and accusation is strengthened against the crimes affecting personal safety,the supervision of state power is achieved through the adjudication of crimes carried out by public servants,while being no interference any more with some private lives.In the progress of cultural evolvement,the change and development of Prosecution Power along with the social morality and ethics,the decrease of religion power, and the advancement of technology are regulating the investigation and accusation of crimes,to different degrees,both on procedure and substantive issues.The effects of evolvement of economy on Prosecution Power is fundamental.On the one hand,the development of economy have effects on the substantial aspects of Prosecution Power,since that development bring about new subjects of crime,give rise to more social disputes,which results with the changes of common social comments on people’s action and the increasing of crime.On the other hand,it leads to the change of means and style for the carrying out of Prosecution Power, since the growth of economy provide more resources for the operation of power,as well as bringing fresh ideas to human minds.The Power of Prosecution is given birth upon the needs of the society, and is shaped and developed along with the evolvement of social classification as well as some individual element.At nowadays it has been grown into a crime attacking force adopted worldwide.In modern society ruled by law,the social values of Prosecution Power include:the value to safeguard social order,the value to save social resource,to value to realize social rationality,and the value to realize social justice.The social functions include:the function of interest protection,the function of interest balance,the function for power restriction,and the function for procedure triggering,advancing.In traditional Chinese society,there was no real Prosecution Power which has the same meaning of it under modern society.Ruled by the Empire,there was no concept of citizen at all in traditional Chinese society. So Power was admired,but Right was ignored.Under that circumstance the state power to investigate and accuse crime was cruel,not independent,and was abused at will,without any apposing restriction such as right to defense.With consideration to the influence of LI System which was so powerful in traditional Chinese society,the power of state to investigate and accuse crimes was extensive but obscure.The standard of LI System is the thinking basis for the state power to bring criminals to justice,but professionals of that field could not be produced by that system.Stability motivated and harmonization oriented,no power and right could found to restrict or limit state power with regard to investigation and accusation of crime.Personal and family life was invaded by state power.’Proper Penalty’ is accepted as guideline for the accusation of criminals.As a characteristic of thinking in traditional Chinese society,individual case were paid much more attention than general rule,thus ruling by law is not well developed.As a matter of fact,the procedural justice which is applicable commonly was much more outweighed by substantial justice embodied by individual case.The journey of modernization of China stepped out by the end of Qing Dynasty,while the modernization of the Prosecution Power of China commenced with the movement for revision of law which occurred at the very end of Qing Dynasty.Thanks to that movement,the modernized concept of Prosecution Power was introduced into China.In the past almost one hundred years,the concept of Prosecution Power of China saw its evolvement from the ends of Qing Dynasty to the periods of the People’s Republic of China.Headed by the system reform of economy which began from the late 1970s,China entered into a transit stage of significant reform, which is also a term whereas the Prosecution Power was experiencing a profound change.Within the past almost 30 years,the sprits of citizen and the concept of rights woke up among Chinese society.The concept of Prosecution Power which stressed much more on the accusation of crime was added by new meaning to combine the accusation and the protection of human rights,empowering more citizen rights to restrict Prosecution Power. Prosecution Power itself witnesses more limitation at the same time.The gradual transfer of Chinese society from "neighborhood society" to "strangers’ society" put forward new requirements for the Prosecution Power,and poses a new challenge to that Power.It’s a reality that society has been classified whereas the social members are more motivated to claim for the right of equality for opportunities.Therefore it should be taken into account by the Prosecution Power to treat the accused party equally.The accused party will enjoy more choices and resources to challenge the Prosecution Power on a level play field.While treating the opposing party equally,the Prosecution Power shall,at the same time, compensate the factual un-equality brought about by social classification in light of that doctrine that every case have its merit.The opinion on harmonization has been transferred from traditional concept which emphasizes personal obligation and totality stability to the newer one which encourages personal full development and active coordination. Correspondingly,during the investigation and accusation of crimes using Prosecution Power,not only the social and state interests should be met,but also the willingness of the parties should be respected.Thus the criminal disputes/conflicts between the parties,and that between state and the accused,could be settled peacefully.Power of Prosecution is a force pushing forward and safeguarding the sound and through transit of our society.Therefore,within the forthcoming term of our social change,Prosecution Power must be regulated among three kinds of conflicts,which are:(1) the conflicts between social order protection and citizen rights protection;(2) the conflicts between modernization and traditional heritage;(2) the conflicts between the ideal and reality of Prosecution Power.更多还原