成文宪法中的检察权

On Prosecutorial Power in Written Constitutions

检察权是各国成文宪法普遍规定的权力。通过对168个国家宪法文本规定检察权情况的考察,发现有104个国家宪法中有检察权的明确规定。这些国家对检察权的定位基本上包括司法权、行政权、独立权力、公共权力几种,其中司法权定位的国家最多。检察权的职权行使以刑事公诉权为核心,具有程序性特征,其法律监督带有权力制约性。我国宪法关于检察机关和检察权的规定应该体现权力制约和权利保障,并从程序性制约的角度进行设计。

Prosecutorial power is the general power in written constitutions around the world. By studying how the consti- tutions of 168 countries regulate prosecutorial power, the author has found that the prosecutorial power is clearly written in 104 countries＇ constitutions. The positions of prosecutorial power in written constitutions basically fall into several categories, which are judicial power, administrative power, independent power and public power. The number of countries that go for judicial power takes the biggest part. The exercising of prosecutorial power gets to the core of criminal prosecution, having procedural characteristics and its legal supervision with power restriction. The provision of prosecutorial organ and power in our constitution should reflect the power restriction and rights protection, which should be designed from the procedural restriction.