《中美检察制度比较研究》

INTRODUCTION1

1．The Difficulties of a Comparative Study1

2．The Values of this Comparative Study9

3．The Methods of this Comparative Study13

4．The Structure of this Comparative Study17

Part One HISTORY21

Chapter One The History of Prosecutorial Systems in EuropeSection Ⅰ GeneraI Introduction21

1．Three Major Legal Families22

2．Three Historical Sources of the European Legal Systems24

3．Three Types of Criminal Procedure28

Section Ⅱ The History of the Prosecutorial System in France34

1．The Emergence of the Public Prosecutor（—1539）34

2．The Establishment of the Public Prosecution System（1539—1789）38

3．Developments in the Public Prosecution System（1789—）43

Section Ⅲ The History of the Prosecutorial System in England53

1．The Victim Prosecutor and the Grand Jury53

2．The Sheriff and the Justice of the Peace59

3．The Attorney General and the Director of Public Prosecution61

4．The Police Prosecution64

Section Ⅳ The History of the Prosecutorial System in Old Russia and the Former Soviet Union69

1．The Prosecutorial System Before the Revolution of 191769

2．The Revolution of 1917 and Developments of the Prosecutorial system in the Former Soviet Union73

3．The Characteristics of the Prosecutorial System in the USSR76

Chapter Two The History of the Prosecutorial System in the United States of AmericaSection Ⅰ The Origins of the Prosecutorial System in the U．S．A．88

1．Three Viewpoints88

2．Comments and Discussions90

Section Ⅱ The Prosecutorial System in the Colonial Period（1600—1789）94

1．Private Prosecution94

2．The Emergence and Early Development of the Attorney General95

3．The Emergence and Early Development of the96

Local Prosecutor96

4．The Emergence and Early Development of the Grand Jury97

5．Two Major Trends98

Section Ⅲ The Development of the Prosecutorial System of the United States after Independence（1789—）100

1．Developments from the Revolution to the Civil War100

2．Developments after the Civil War103

Chapter Three The History of the Prosecutorial System in ChinaSection Ⅰ The Yu—Shi Institution in Feudal China（—1911 A．D．）109

1．The Origin of the Yu—Shi Institution109

2．The Development of the Yu—Shi Institution113

3．The Function and Significance of the Yu—Shi Institution118

Section Ⅱ The Prosecutorial System in the Republic of China（1911—49）124

1．Influence of Western Legal Systems in China124

2．The Prosecutorial System of the Republic of China（KMT）125

3．The Prosecutorial System in Communist China before 1949129

Section Ⅲ The Prosecutorial System in the People's Republic of China（1949—）135

1．Establishment of the People's Prosecutorial System（1949—53）135

2．The Period of Development；Twists and Turns in the Work of the People's Procuratorate（1954—66）138

3．The Period of the Suspension of Procuratorial Work during the"Cultural Revolution"（1966—78）143

4．The Period of Reconstruction and Development of the Prosecutorial System（1978—）145

Part Two ORGANIZATION152

Chapter Four The Organization of the Prosecutorial System in the United States and the People's RepublicSection Ⅰ The Organization of the Prosecutorial System in the U．S．A．152

1．The Federal Prosecutorial System153

2．The State Prosecutorial System155

3．The Municipal Prosecutorial System158

Section Ⅱ The Organization of the Prosecutorial System in the P．R．C．162

1．The Supreme People's Procuratorate163

2．The Local People's Procuratorate164

3．The Special People's Procuratorate166

SectionⅢ Centralization and Decentralization169

1．Merits and Demerits of the Centralized Prosecutorial System169

2．Merits and Demerits of the Decentralized Prosecutorial System170

3．Comments and Suggestions172

Chapter Five The Organization of the Prosecutor's Officein the United States and the People's RepublicSection Ⅰ The Organization of the Prosecutor's Office in the U．S．A．178

1．Variety of the Prosecutor's Office in the U．S．178

2．Three Examples of the Organizational Structure of the Prosecutor's Office in the U．S．182

Section Ⅱ The Organization of the Procuratorate in the P．R．C．188

1．The Organizational Structure of the Procuratorate188

2．The Procuratorial Committee193

Section Ⅲ Specialization and Generalization196

1．Individual Leadership and Collective Leadership196

2．Specialization and Generalization199

Chapter Six The Personnel of the Prosecutorial System in the United States and the People's RepublicSection Ⅰ The Personnel of the Prosecutorial System in the U．S．A．209

1．Selection of the Prosecutorial Personnel209

2．Training of the Prosecutorial Personnel214

Section Ⅱ The Personnel of the Prosecutorial System in the P．R．C．218

1．Selection of the Prosecutorial Personnel218

2．Training of the Prosecutorial Personnel220

Section Ⅲ Professionalization of Prosecutorial Personnel224

1．Appointed or Elected Prosecutors224

2．Career or Temporary Prosecutors228

3．Political Influence over Prosecutors230

Part Three FUNCTION241

Chapter Seven Investigation241

Section Ⅰ The Investigative Function of the Prosecutor in the United States241

1．The Prosecutor and the Police Investigation242

2．The Prosecutor and the Grand Jury Investigation248

3．The Prosecutor and the Preliminary Hearing252

Section Ⅱ The Investigative Function of the Procurator in the People's Republic255

1．The Function and Procedure of Investigation256

2．Investigative Function of the Procuratorate259

3．Investigative Supervision Function of the Procuratorate263

Section Ⅲ Investigator and Supervisor274

1．The Double—track Investigation and the Single—track Investigation274

2．Preliminary Hearing and Preliminary Interrogation278

3．Investigation by Prosecutors280

4．Supervision of the Activities of the Investigator282

Chapter Eight Prosecution291

Section Ⅰ Prosecution in the United States291

1．The Decision to Charge291

2．Plea Bargaining297

3．Instituting Prosecution302

Section Ⅱ Prosecution in the People's Republic306

1．Public Prosecution and Private Prosecution306

2．Examination of the Case for Prosecution308

3．The Decision to Prosecute310

Section Ⅲ Prosecutorial Decision and Discretion318

1．Discretion318

2．Plea Bargaining and Confession325

Chapter Nine Trial335

Section Ⅰ The Prosecutorial Function in Trial in the United States335

1．General Procedure of Trial in the U．S．A．335

2．The Role of the Prosecutor in Trial349

Section Ⅱ The Prosecutorial Function in Trial in the People's Republic354

1．The Examination of a Criminal Case by the Judge354

2．The Preparation for Trial356

3．The Courtroom Trial Procedure357

4．The Supervision of the Prosecutor in Trial361

Section Ⅲ Truth and Justice369

1．Adversary and Inquisitorial Procedure369

2．Characteristics of the Chinese and American Trial Procedures372

3．Supervision of the Trial378

Conclusion and Recommendations384

1．Administering Justice and Fighting Crime387

2．The Individual's Right's and the Society's Interest395

3．The Reform of the Criminal Justice System in the People's Republic of China411

Appendix Ⅰ Bibliography433

Appendix Ⅱ The Organic Law of the People's Procuratorates of the People's Republic of China439

Appendix Ⅲ The Procurators Law of the People's Republic of China449