我国检察权的反思与重构——以公诉权为核心的分析

检察机关的基本职能是公诉 ,检察权在本质上主要表现为公诉权 ,以公诉权为基本内容的检察权在本质属性和终极意义上应属于行政权。检察机关在刑事诉讼中的各项权力都是具体的诉讼程序性权力 ,与所谓的法律监督机关、法律监督权并不存在必然的关联性。应该按照检察机关就是公诉机关的思路去改革司法制度 ,建立以公诉机关为核心、主导的审判前程序 ,同时改革现行的逮捕和其他侦查措施的审查批准制度。

The basic function of prosecutorial organs is public prosecution and the prosecutorial power is in essence the power of public prosecution. The prosecutorial power, with the right to prosecution as its main content, belongs to administrative power both in terms of its essential nature and in terms of its ultimate meaning. In criminal procedure, the various powers of the prosecutorial organ are all concrete procedural power that have no necessary interrelationship with so-called legal supervision organs or the legal supervision power. China should reform its judicial system according to the idea that prosecutorial organs are public prosecution organs, establish a pretrial procedure with public prosecution organs as its core and leading factor, and reform the current system of examination and approval of arrest and other investigation measures.