Why do you say that? Strictly speaking, the procuratorial system in China's modern history was born in 1906. At that time, Guangxu promulgated the "Dali Court Trial Compilation Law", which stipulated that the new judicial institution should adopt a four-level and three-trial system, with procuratorates attached to the trial halls at all levels, each with a chief procurator and a certain number of prosecutors. Prosecutors independently exercise the following functions and powers:
1. Prosecution of criminal cases;
2. Accepting complaints, conducting pre-trial and public trial;
3. Command the judicial police to arrest criminals;
4. Investigate facts and collect evidence;
5. Civil protection of public opinion;
6. Supervise pre-trial and public trial, and correct their mistakes;
7. Supervise the execution of judgments;
8, check the trial statistics, etc.
This marks the birth of modern procuratorial system in Chinese mainland.
The question is, why did Shen Jiaben change the official directly in charge into a prosecutor at that time, instead of using other titles? That's because a nation's historical and cultural traditions can't be abandoned. Judging from the historical evolution of social system and the natural continuation of national culture, the essential function of procuratorial organs has a very obvious supervision brand in the ancient imperial power supervision system in China. According to Ci Hai, "Zhi Si, official name. Korea set up a direct department, and Zhang assisted the Prime Minister to lift the law. From Wei and Jin Dynasties to Tang Dynasty, it belonged to Wei Yan or Dali Temple and was pushed by ambassadors. In the Tang Dynasty, it was still placed in the official residence of the Crown Prince, which was equivalent to the history of the imperial court. " It can be seen that the official in charge of affairs was born in the Han Dynasty, and his main duty was to assist the prime minister in checking the unhealthy practices of officials. Wei Yan appointed him to investigate criminal cases in Wei and Jin Dynasties. The official's position in the Tang Dynasty was equivalent to that of a deputy censor.
According to the information consulted by the author in 2006, the embryonic form of China's public prosecution system began in the Eastern Zhou Dynasty in the 8th century BC, and the public prosecution system in 2006 began in the Qin Dynasty after the reunification of China in the late 3rd century BC. At that time, there were "intrauterine charges" and "non-intrauterine charges". There were two kinds of lawsuits in Qin and Han Dynasties. One is that the parties or relatives report to the government, similar to private prosecution; The other is that officials correct mistakes on behalf of national interests, which is similar to public prosecution. The suggestion system came into being.
During the Qin and Han dynasties, there was a special institution in the history of the empire, which was called "Imperial History Museum" and was called "the official who ruled the official". The later Han Dynasty changed to "Sendai". It was renamed "Lantai" in Wei, Jin and Song Dynasties. Liang, Chen and Northern Dynasties were called "Yushitai". In the Tang Dynasty, the system of admonition was further developed. There is a censorate in the center, with the censor as the director (also called a university student). There are three internal divisions: Taiwan Academy, as the headquarters of Yushitai, is mainly responsible for supervising the criminal acts of central officials and impeaching civil and military officials; Temple, mainly responsible for supervising courtiers and courtiers; Chayuan, mainly responsible for supervising the officials of the six central departments and local counties. It can be seen that the first duty of the suggestion is to picket the crimes of civil and military officials. For example, in the joint trial system that began in the Tang Dynasty, all major cases were tried by Dali Temple together with Shangshu and Guru Cheng of the Ministry of Punishment, which was called "three divisions to judge cases" in history and later evolved into "three divisions of law" in the Ming and Qing Dynasties.
In the process of hearing a case, the examiner's duty is mainly impeachment, which is equivalent to the prosecution in 2006. According to records, in the 14th year of Tang Kaiyuan, a court official was set up to be on duty in Taiwan Province every day to receive the complaint, so the name of the party or lawsuit was written at the beginning and played after the suggestion and explanation of the complaint. It can be seen that playing is the full-time job of the empire. The scope of court impeachment is very wide, from princes and nobles, prime ministers to civil and military officials and local strongmen, where there is guilt, the court impeachment can be played; The content of impeachment, bribery, dereliction of duty, dereliction of duty, violation of court etiquette, etc. , are among the impeachment; Impeachment was put forward by the censor himself, and some people went to Taiwan Province to make statements. The famous "anecdote bombing" is to send out suggestions to accept documents, omit names and plots, and then use the name of "anecdote bombing". This method began with the story of Shen Yue impeaching Roy in the Imperial History of the Jin Dynasty, and prevailed in the Southern and Northern Dynasties until the Tang Dynasty. In the 14th year of Kaiyuan in the Tang Dynasty, civil and military officials thought that this method was prone to unjust cases. Therefore, the imperial court stipulated that when accepting the suggestion of a complaint, it is necessary not only to name the complaint, but also to verify the authenticity of the complaint and investigate relevant materials before impeachment. Once impeachment is proposed, it is not directly punished, but studied and punished by Dali Temple and the Ministry of Punishment (this is called legal deduction). Judging from the information I have found, at the end of the proposal for impeachment, it is generally written that "please ask the law to pay, and the constitution to pay". All these indicate that in ancient China, there was a division of labor in the process of prosecuting crimes and postponing the trial of Wei, Dali or punishment. According to the biography of Tong Gong, "If there is something wrong with the suggestion, it will be postponed to a captain, so that people can know its number. Wei Yan made suggestions directly to the company. When I arrived in the county, I was separated from another library, and I was asked to check things and transfer to another department. The company directly asked about this matter and returned to the suggestion. Zhong Cheng reported that Wei Ke's law was delayed. " This clearly shows that the censor, the official and Wei Yan play different roles in investigating a criminal case. Wang Guiwu, a well-known prosecutor, commented: "As an ancient legal supervision system, China's suggestion system has been uninterrupted for two thousand years from the Qin Dynasty to the Qing Dynasty. It can be said that it has a long history, complete system, clear evolution, detailed specifications and distinctive features. It has played an irreplaceable role in realizing feudal political and legal rule and is unique in the history of world politics and law. " I think this comment is accurate. However, due to the closed nature of China's ancient civilization, the imperial system, like its feudal bureaucrats, and Chen Xiangyin, like a degenerate seed, could not naturally evolve into a modern prosecutor. However, as Dr. Xu said, the culture of a nation is closely related to each other. Without the culture of the ancient imperial system in China, the modern public prosecutor system would lack the corresponding institutional support. The modern public prosecutor system in China can neither be a copy of the western system nor a simple return to history. As a symbolic symbol of mobility, the evolution of job titles from officials of competent departments to prosecutors keenly reflects the changes of social systems.
Let's take a look at China in the early 20th century. Facing the western and Japanese powers, the Qing government sent Zaize and other five people to inspect the constitutional situation in the European continent. Looking at the opponents in the sky, the envoys of the Qing dynasty never dared to be arrogant again, and they all demanded the opening of constitutionalism. For all this, Shen Jiaben, the left assistant minister of the Qing Dynasty, who learned Chinese and Western knowledge, knew all about it. He was ordered to amend the Qing law, which was passed in 160. The first thing he did was to abolish torture such as year-end, decapitation, corpse slaughter and tattoo, imitate the French and German legislative style and transplant the public prosecutor system. People can't help asking, the original meaning of English "public counsel" is government lawyer. Until now, prosecutors in the Department of Justice in Hong Kong are all government barristers. Why did Shen Jiaben translate into a prosecutor? I think, in addition to the influence of the imperial history and culture mentioned above, the etymology of "procuratorial" has the meaning of supervision since ancient times. This love deeply influenced Shen Jiaben.
Say the word "inspection" first. "Shuowen" Note: "Inspection, the book department also." Mr. Duan Yucai commented: "The book department refers to the book department." According to the Book of Sacrifice in the later Han Dynasty, the royal genealogy was hidden in the golden room of the stone room, and the Shang Dynasty and Taichang made an inspection handover, signed and sealed, which was the original intention of the word "inspection". It is a fact that the royal genealogy needs to be checked, as do the imperial edicts and decrees. During the Qin and Han dynasties, a special method of "censoring history" appeared. The so-called "censoring things and changing officials" means that censors compare the items to be impeached with laws and regulations. If the inspection results violate laws and regulations, they will be handed over to the competent officials according to the provisions of laws and regulations.
Say the word "check" first. According to Shuowen, the word "check" in the pre-Qin period means "review". Another cloud said, "Check, pay attention to the deep house." . What is a deep house? Duan Yucai commented: "The ancient people have four notes, and the east and the west overlap the north and the south. There are halls and houses, which are deep houses. " Therefore, the purpose of Xu Shen's "second interview" is to be observant. The so-called "all fibers are judgment and observation" to distinguish right from wrong. That's what the new book Daoism says.
The combination of the word "procuratorial" in ancient times began in the Tang Dynasty (6 18 ~ 907). According to Zitongzhi Jiba in Tang Jian, Li Shimin, Emperor Taizong of Tang Dynasty, said to Wang Si, Huangmenlang: "The state takes Chinese books as the foundation and Chinese books govern cases. If the legal declaration issued by the emperor is wrong, it should be refuted under the door. " That is, the imperial edict drafted by the secretariat for the emperor was handed over to the Ministry for re-inspection to refute the mistakes in the imperial edict manuscript. It can be seen that the "procuratorial" in the Tang Dynasty contained the meaning of supervision. When Shen Jiaben transplanted the achievements of western legal civilization, he did not translate the English (Anglo-American legal system) "prosecutor" into a government lawyer, but into a prosecutor, because the lawyer system has not been introduced into China, and the concept and system of modern "government" have not yet formed. In ancient China, the official positions of censor and secretary-general were similar to those of prosecutors in western capitalist countries who exercised the right of public prosecution, both of which were the products of strengthening the unity of the legal system and supervising the implementation of the law. Therefore, Shen Jiaben and others played Emperor Guangxu on September 20, 906/KLOC-0, and changed the General Department directly to the General Prosecutor's Office; Replace the official in charge of the company with a prosecutor. The name of the prosecutor came from this.
Therefore, the prosecutor of Shen Jiaben translation said that he not only considered the prosecutor system in civil law countries, but also paid attention to the evolution of the traditional official system in China. In terms of cultural origin, the imperial examination system established in China feudal society can be regarded as the most primitive form of procuratorial system in a certain procedure. It can also be described that the modern procuratorial system in China is a combination of Chinese and western cultures, which is influenced by the western procuratorial system and inherited the ancient cultural official system in China. Therefore, investigating the cultural origin of procuratorial power and legal supervision power is inseparable from China's legal cultural tradition and modern western legal culture.