检察的内涵及其启示
朱孝清检察的内涵及其启示
Connotation of Prosecution and its Revelation
期刊名称：《法学研究》
期刊年份：
作者：朱孝清
单位：最高人民检察院
中文关键词：检察内涵;法律监督;协调;改革
英文关键词：connotation of prosecution;supervision;coordination;reform
中文摘要：
将英文中的“public prosecution”翻译为“检察”，是因为西方国家特别是大陆法系国家的检察机关均具有监督属性，且含义与我国历史上的御史制度有契合之处。以公诉为主的职能、监督的属性、维护国家法制统一的目的、国家与社会公益代表的身份，四者共同构成“检察”的内涵。如果将检察内涵中的四个要素割裂开来或者对立起来，就有可能在理论或实践上出现谬误。
英文摘要：
In English, public prosecution means to “report, inform against, charge, and initiate legal proceeding by public organ”. It is translated as “jian cha” in Chinese because the prosecution organs in western countries, especially in continental legal system countries, possess the attribute of supervision, which also fits in with the legal culture embodied by the royal censor system in ancient China. The connotation of prosecution have four aspects, that is, prosecuting as its main function, supervision as its attribute, safeguarding the unity of rule of law, and representing the state and social interests. These four aspects support for each other and any of them cannot be in shortage. The connotation of prosecution varies in different countries. In China, it has a number of characteristics. For example, its attribute has been elevated to “legal supervision”. And prosecution in China has a wider range of functions than in other countries, and all the functions are subject to legal supervision. Moreover, the role of the subject of prosecution transits from the “representative of state and social interests” to “state’s legal supervisor”. The aforementioned Chinese characteristics of the connotation of prosecution have a number of advantages. They make the four elements of the connotation of prosecution more harmonious. They are beneficial for prosecution organs to take an impartial position in enforcing the law, and are also beneficial for them to exercise powers independently and realize the justice, and thus good for realizing the goal of safeguarding the unity of rule of law.The connotation of prosecution gives us the revelation that the four elements of prosecution are an organic unity, which can be neither separated nor opposed, as otherwise it may lead to errors in theory or practice. Specifically speaking, there are four revelations. Firstly, prosecution organs in China are legal supervision organs but not public charging organs. Secondly, “legal supervision” derives from the internal attribute of supervision and cannot be deemed as deviant. Thirdly, contradictions within the prosecution are not antagonistic and the “destroy the party” approach may not be necessary. And finally, multiple measures should be taken to address problems and prevent contradictions.
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