论“上命下从”与检察官的客观义务

“上命下从”是检察一体化的应有之义, 意味着上级检察机关对下级检察机关、检察长对检察官享有指令权, 能以命令的形式要求检察机关或检察官实施一定行为。而在客观义务面前, “法律的守护人”是检察官角色的集中体现, 客观公正应成为检察官的不懈追求。当“上命下从”遭遇检察官的客观义务之时, 应受到如下的限制:“上命下从”不仅应以检察官的客观义务为边界, 不能抹杀下级检察官的相对独立性, 而且还应该避免检察官行政人化。

On the Procurator's "Obedience to the Order of his Superiors" and his Objective Obligations

The procuratorial integration necessarily includes the obedience to the order of superior officers, which means that higher procuratorial organs have the power to issue instructions to lower organs, and the procurator-general is entitled to issue instructions to procurators of lower ranks. Both can require the procuratorial organs or prosecutors to carry out certain orders. But concerning objective obligations, prosecutors are the “guardians of law”, and must unremittingly pursuit objective and fairness. When the procuratorial integration is confronted with the objective obligation of the prosecutor, it should be subject to the restrictions as follows: the procuratorial integration should be limited by the objective obligations of prosecutors, without depriving the relative independence of lower prosecutors. It also should avoid administrative humanizing in the role of prosecutors.