A Study On The System Of Non - Prosecution

The existing studies on Conditional Non-Prosecution system are scattered, and moststudies focus on the implementation of Conditional Non-Prosecution system. As to the historyabout the formation of Conditional Non-Prosecution system and the deeper theoretical basisof this system are lack systematical researches. In the theory and practice field of ConditionalNon-Prosecution, there have been a lot meaningful discussions about the scope of application,decision process and relief mechanism. But there is no reasonable explanation ofcontroversies of different projects. This thesis based on the formation of ConditionalNon-Prosecution system and investigated at social factors of different counties, then come toa conclusion that Conditional Non-Prosecution is the product of serve crime situation. Basedon the changes of penal theory and indictment principle, the thesis found the theoreticalfoundations of Conditional Non-Prosecution system of each country. And on the basis ofoperation status of Conditional Non-Prosecution system, integrative assumption of graduallypush forward Conditional Non-Prosecution system in China was proposed.The structure of this thesis is divided into five chapters, as follows:Chapter one is the overview for Conditional Non-Prosecution and this chapter dividedinto three sections. First, it gives conception and forms of non-prosecution. From whether theprocurator has right to prosecute or not, it can fall into sue legal and consider to settle. Fromthe evidence side it falls into sufficient-evidence non-prosecution and insufficient-evidencenon-prosecution. From whether the case has attached conditions it falls into non-conditionalnon-prosecution and conditional non-prosecution. Second section analyzes the basic contentand main features of conditional non-prosecution from the point of conditionalnon-prosecution aspects. It will be sound if we could arrange the affairs of conditionalnon-prosecution depend on the details of case, evidence, inspection content and term,revocation criteria, remedy procedure, and determine the applicable target in consideration ofcrime nature, extend of punishment, criminal pattern, personal dangerousness andparticularity of the target. Third section reveals the differences and relationship amongconditional non-prosecution, probation, relative non-prosecution and plea bargaining.Chapter two mainly explained the basis of conditional non-prosecution includingtheoretical field and practical field. In theory, applying conditional non-prosecution system needs relevant purposes of legal penalty and the doctrine of prosecuting. From the retributivepenalty theory to reparative penalty theory, it is a sign for the change from compulsoryprosecution to the principle of opportunity. All of these factors makeup the system ofconditional non-prosecution. Retributive penalty theory advocated that in purpose ofachieving deterrent effect among criminals and the public by legislating in advance andexecuting the punishment. They tended to prevent and reduce crime, but in judicial practicecrime rate still rising, and that is the reason people questioning Retributive penalty theory.Later, purposive penalty theory and comprehensive penalty theory remained in play. Finally,reparative penalty theories accepted by people gradually. This theory treats different type ofcriminals with different punishment according to their personal fatalness and social harms.Right of determination to prosecution is carried out in purposive penalty theory to prevent andcorrect crime. And non-crime is the choice of rational criminal policies to give suspects achance to correct illegal acts and return to society. Our country is in the period oftransformation, it means that social contradiction become more and more serious, and thisresult in severe situation of crime. Adopting temper justice with mercy is the demand ofachieving high judicial efficiency and meets the needs of treating misdemeanor as not guilt.The complementariness between leniency and strictness as well as achieve high judicialefficiency formed the practical foundation of conditional non-prosecution system.Chapter three is about the experiences of conditional non-prosecution abroad. This paperdraws a conclusion that Germany and Japan take measures to deal with increasing crimes, andthe source of conditional non-prosecution is juridical practice. But in the USA, conditionalnon-prosecution stem from a policy that help criminals back to society and decrease thecriminal rate. Then the paper finds out that conditional non-prosecution apply to mediumcrime but in Germany’s legislation it can only apply to petty crime, which based on the rangeand subject of this system. Procurators in Japanese have a large amount of discretion, anddeferred prosecution has no restriction on severity that means even serious crime could applyconditional non-prosecution system too. But in America, only minor offenses can beapplicable, and there is an age limitation of17years old to22years old, people under thislimitation normally will not be use this procedure. In England, the age limitation ofconditional non-prosecution procedure is18years old at the beginning, and then less than18years old can also use conditional non-prosecution procedure. In our Taiwan area, the onlyrequirement of applying this system is misdemean or not more than three years. According to decision maker, there is a little difference in each county. In Japan and Taiwan area,procurator can decide whether apply conditional non-prosecution system the whole of itthemselves, but in Germany the permission of the court is necessary to procurators. Besides,different countries set up corresponding relief program. In Japan, there are examinationalcommittee program and victims hold the relative right of prosecution. In Germany, peoplecould apply for mandatory prosecution procedure. In Taiwan area, there exist direct trials inorder to prevent the benefit of victims. Form the effects of implementation, common lawsystem especially America, use conditional non-prosecution system does not much affect thejudicial efficiency but has great effect on reduce crime and help suspects return to society. InGermany, Japan and Taiwan those who belong to civil law system, conditionalnon-prosecution laid particular stress on judicial efficiency and help to save judicial resourceso that can relieve pressures of judicial organ. In general, the application in every country isincreasing.Chapter four states the development of conditional non-prosecution in China. Throughinvestigation non-prosecution in mainland area stem from the strategy in revolution periodthat ‘combine vertically, link horizontally’. It was1956that the first time to applynon-prosecution system to Japanese war criminals who are in prison. In1979non-prosecutionsystem has escalated to laws regulated, however, it has great dispute in application. Duringthe process of discussing whether keep the non-prosecution system or not, another viewpointwas come up to topic. As the law of Criminal Procedure of1996was put into effect,non-prosecution system was abolished. But in legal practice field deferred prosecutionmethod is not abandoned. After a summary of experience in pilots, conditionalnon-prosecution finally escalated to legislation.Chapter five puts forward some methods to improve conditional non-prosecution system.Through Field survey of questionnaire, this paper analyzes the implementation of conditionalnon-prosecution system in close to a year，and concludes that conditional non-prosecutionsystem gains acceptance in preventing and decreasing criminals and remedy the narrowapplication scope of relative non-prosecution. Although it did well in bifurcating the legalprocedures and has some judicial economy, it still not met the expectation in practical field.Considered limited cases, judicial organs lack of motivation to apply conditionalnon-prosecution system. And it might affect the penalty function due to injustice applicationof conditional non-prosecution. In judicial practice it also has risk of judicial corruption. From operational procedures, narrow application scope and less provision in sentence term result indifficulty in operating the system. And conditional non-prosecution might overlap with otherrelated systems then the same case may have different results in juridical practice. The articlesuggests we could loosen strings of penitential conditions and set strict restrictions onapplying conditional non-prosecution. At last, the article proposed a three-step method to dealwith the problems. First, the applying conditions of conditional non-prosecution system needto be completed in details. Next is investigating the system by judicial administrative organand social neutral organ. Then gradually reduce the restrictions on deciding procedure, so thescope of applying conditional non-prosecution system can be expanded.