On Prosecutorial Discretionary Power

Prosecutorial discretionary power is actually the power to act entitled to the prosecution service or the prosecutors in exercising prosecutorial power.It is not independent but derived from other powers.Prosecutorial discretionary power is mainly realized in the proceedings.However, proceeding discretion differs substantially from proceeding recognition, since the aim of proceeding discretion is to decide how to handle or proceed a case,while the aim of proceeding recognition is to find the fact of a case,although subjective activities might be necessary in the process of the former.Thus,processing evidence by the subject of the proceeding is in nature proceeding discretion rather than proceeding recognition.Prosecutorial discretion system stems from sound theoretical basis. The idea of objective obligation for prosecutors strengthens common trust placed on prosecution service for pursuing justice and fully enforcing the law,which constitutes support ideologically for prosecution service to be empowered and fully exercises such a power.The principle of public interests is a basic requirement for prosecution service in exercising discretion,indicating practical appropriation of prosecutorial discretionary power.And in order to seek efficiency and effect in the proceedings, concerned parties will be stimulated to accept and expand prosecutorial discretionary power.It is also closely connected with criminal policy,e.g. the arrangement and application of prosecutorial discretion represent criminal policy,whereas,criminal policy lays down basis for the design and application of the former.The drive to build a harmonious society further gives prominence to its value in settling disputes,which calls for the expanding of prosecutorial discretionary power in the process of proceeding reform.Prosecution services in foreign jurisdictions are mainly empowered to initiate public prosecution with greater discretion.The instruments issued by UN also recommend the expanding of prosecutorial discretion.English scholar Julia Fionda holds the view that the move to expand prosecutorial discretionary power is mainly based on the following principles:to effectively manage the ever expanding judicial system,or to make the offenders and/or victims restore to the condition before crimes committed or harms caused,or to rebuild the widely disrupted social codes and tradition through tackling of crimes by judicial authorities.The core value can be branded as operational efficiency model,restorative model and social trust model.Based on these models,the constitutionality, accountability,expanding the net of law as well as public interests for expanding prosecutorial discretionary power can all be justified.Discretionary power on filing criminal cases lacks legislative basis, however,standard for filing criminal cases is compromised in practice by some prosecution services,which constitutes inappropriate exercise of discretionary power.The principle of penalty certainty runs in counter with discretion in filing cases,and no fact basis exists for discretion at the stage of filing a case,so discretion in filing a case is widely denied or not welcome in modern criminal proceedings.For China,the present principle should be persisted,but with slight modification.The prosecution service in China is empowered limited discretion on arrests.The unduly high proportion of detention is not consistent with the constitutional principle of protecting human rights and the trends in modern proceedings development.It might be an important means for controlling arrest application to empower greater discretion on arrests while introducing strict arrest preconditions.So,legislation should be improved for the prosecution service to expand discretion on arrest appropriately.The Chinese law grants limited discretion on prosecution for prosecution service,which is not in line with the law of modern proceeding and the principle of proceeding economy.Traditionally, prosecution service exercises discretion of prosecution in a rather cautious manner,which further suffocates the dynamics of prosecutorial discretion system.In the past years,efforts have been made by prosecution service to expand discretion scope,but all resulted either in failure or in humble effects,to which legislative obstacles and absence of justification might attribute.Thus,based on renovation and combining foreign experience with Chinese condition,measures should be taken to expand prosecutorial discretionary power,including conditional non-prosecution and criminal reconciliation non-prosecution,the introduction of play-bargaining system adapted to Chinese situation,e.g.on the condition of expanding of summery procedure,providing larger space for prosecution service in procedural selection and empowering prosecution service in sentence recommendation.All three major procedure laws in China empower prosecution service to initiate prosecution appeal,but none of it provides any discretionary power.Due to the generality nature of the clauses on conditions of prosecution appeal and lack of discretion,the laws seem rather mechanical and hard to apply,which causes the embarrassing situation of "impotent to initiate prosecution appeal whenever necessary". So,the experience of foreign jurisdictions such as not twice for the same, double jeopardy,related legislation on restriction of appeal and discretion application,and discretionary power on prosecution appeal should be learnt when drafting new laws on discretion.