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The Legislative Principles of the Prosecutorial Power

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  • Last updated:2019-01-03
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The Principle of Substantive Discovery of Facts

A prosecutor takes responsibility for investigations of crime on behalf of the state. In order to discover the facts, he/she may use necessary means to investigate evidence. The code of Criminal Procedure provides the prosecutor with the power to summon, arrest, interrogate and detain the suspect as well as the power to search, attach and inspect those persons or property involved with an committed crime. Through the use of such powers, the facts are to be discovered so as to ensure proper and impartial administration of public prosecution. If a prosecutor initiated prosecution without fulfilling his/her duty to conduct substantive investigation, with the passage of time and changes in circumstances, the court may not be able to establish the facts when it conducts the trial.

The Principles of Statutory and Discretionary Prosecution

Whether a prosecutor has the authority to decide to or not to prosecute depends on the different principles adopted by the legislature. The principle of statutory prosecution stipulates that a prosecutor shall initiate prosecution by filing an indictment with the court when he/she considers that the committed offence meets the legal requirements for prosecution. However, according to the principle of discretionary prosecution, though the committed offence is found to meet the legal requirements for prosecution, the prosecutor, based on policy consideration, may decide not to prosecute the crime. The code of Criminal Procedure makes the statutory prosecution the rule and the discretionary prosecution the exception. For instance, the statutory prosecution is clearly stipulated in Article 251, of the code of criminal procedure, which prescribes that if evidence obtained by a prosecutor after investigation is sufficient to prove that the accused is suspected of having committed a crime, a public prosecution shall be initiated. In contrast , Article 253 of the code of criminal procedure stipulates that if a prosecutor considers it appropriate not to prosecute a case involving one of the offences specified in article 376 of the code of criminal procedure, after having taken into consideration the provision of Article 57 of the Criminal Code, he/she may decide not to prosecute. Another exception is Article 254 of the Code of Criminal Procedure which states that if the suspect commits several offences for one of which he/she has received or may receive a sever sentence, a prosecutor may decide not to prosecute for the other offences which he/she considers will not seriously affect the execution of the sentence.

The principle of Single Prosecutorial Body 

According to the Law Governing the Organization of the Court, a prosecutor functions independently from the trial court, A prosecutor is authorized to issue an indictment, a written disposition of non-prosecution, a written disposition of non-prosecution, a written appeal and a reply in the prosecutor's own name. Nevertheless, the Principle of Single Prosecutorial Body has been adopted in order to maintain the solidarity and the integrity of the prosecutorial power, i.e., from the Prosecutor General of the Prosecutors Office at the Supreme Court down to both prosecutors offices at the high court and district court, all the prosecutors offices are vertically connected and constitute a single body. The principles are described as follows: 

  1. Prosecutors shall follow the orders and directions of their superior prosecutors. Being different from the authority of judges who conduct trials independently, prosecutors are bound by the orders of their superiors.
  2. The Prosecutor General or the Chief Prosecutor may personally undertake the business assigned to a subordinate prosecutor and may re-assign the business of one subordinate prosecutor to another . For example, in dealing with a complainant who files an application in writing for reconsideration of the disposition of non-prosecution with his/her reasons for dissatisfaction, according to paragraph IV of Article 257, the Code of Criminal Procedure, if the Chief Prosecutor considers it necessary, he/she may, before delivery is made in accordance with the provision of Paragraph II, (i.e., delivery of files to the superior chief prosecutor when the application is found to be groundless ) personally investigate or order another prosecutor to investigate to determine whether the original disposition should be set aside or upheld. 

Application for reconsideration is to be made in writing by a complainant, within seven day, which shall set out the complainant's reasons for dissatisfaction with a prosecutor's decision not to prosecute, through the original prosecutor to the Chief Prosecutor (or Prosecutor General) of the immediately superior prosecutors office.

The procedures for handling cases of reconsideration are as follows:

  1. As for the original prosecutor: 
    • If the original prosecutor considers that the application for reconsideration is well grounded , he/she shall set side his/her disposition and continue the investigation or initiate a prosecution.
    • If the original prosecutor considers that the application for reconsideration is groundless, he/she shall immediately deliver the records and exhibits to a Chief Prosecutor (or Prosecutor General) of superior prosecutors office.
    • Application which is not filed within seven days after receipt of a written disposition of non-prosecution shall be dismissed
  2. In case of emergency, a prosecutor may perform his/her functions outside the territories of his/her jurisdiction to secure the facts and evidence. This is the typical example of the utilization of the principle of single prosecutorial body which is different from a judge who shall exercise his/her power within a fixed territory of his/her jurisdiction.
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