检察权的人民性:公诉权核心论的宪法学沉思

The Popular Character of the Procuratorial Power: A Constitutional Reflection on the Core of Public Prosecution Right

检察权的人民性久已被遗忘,这是导致宪法解释明显偏离文本文字的重要原因,也是公诉权核心论产生的解释学根源。宪法和法律文本文字不是机械的语言学与语义学追随,即使是自由解释亦不得冒偏离文本文字的风险,否则将有违人民主权这一伟大原则。检察权来自宪法设计,无论是人民授权、宪法授权、主权者授权,还是人大授权、人大二次授权,都说明检察权的根基深植于民主集中制这一宪法原则,其核心深藏于权力分工与监督之中,其功能未必仅限于刑事诉讼。作为人民代理人,检察权的核心在于"完全且独立的权力",公诉权核心论是偏离文本文字的宪法臆造,它割裂了检察权的完整性,属于宪法上的自我残害。

That the procuratorial power owes itself to the people has long been forgotten, a leading cause why constitutional interpretation is increasingly deviating from the original text and wording, which is also the root cause for the rise of core-public prosecution rights. The Constitution is not exactly a literal and mechanical follow-up of statutory practices, or else free legal interpretation runs the risks of departing from the Constitution and of breaking away from the great principle of the people’s sovereignty. That the procuratorial power comes from constitutional design, based in turn on the system of democratic centralism, is the general norm to be understood and followed, whether it manifests itself in rights granted by the people, empowered by the Constitution, delegated by sovereignty, or conferred by the NPC, second authorization by the NPC, or whatever. The core of procuratorial power is deeply rooted in the Constitutional principle of democratic centralism, in the division of labor and full independent supervision. The so-called "core of public prosecution right" is a deviation from the Constitution. It robs the procuratorial power of its complete and independent status, representing a self-torture on the part of the Constitution.