Discretion. Pre-trial Procedure The Prosecutor

Since middle of last century, the focus of criminal prosecution has been presenting a trend of transferring from trial procedure to pre-trial procedure, while criminal prosecution procedure has been kept more rational. Since 1924, Germany has a dozen of modification on criminal prosecution law, breaking the limitation upon the doctrine of statutory prosecution, establishing the doctrine of prosecuting discretion, enhancing prosecutor's power of discretion in pre-trial procedure, for example, prosecutor can conducts case division and handling before trial. In Britain and America, plea bargaining has been an effective solution for most of criminal cases. Therefore, the transferring from the division and non-prosecution after starting up investigation procedure to plea bargaining has been one important presentation of that the focus of criminal prosecution has been transferred to pre-trial stage.China is at a stage with economy developing rapidly, with an outstanding conflict of high speed of economic development and relative lower speed of legal development. Besides, the economic development has brought about serious property disparity, all sorts of social conflicts are sharp and the rate of crime stays high, which result in great pressure on the normal operation of juridical organ. In order to solve the mentioned problems, it's advisable to increase the number of juridical people, to conduct juridical reform enabling the efficiency to be improved and to conduct comprehensive social adjustment. The last advice is not within the range of juridical reform, yet the first one is not a good choice, while improving the prosecution efficiency is a better choice. Enhancing prosecutor's power of discretion properly is a good method of improving the prosecution efficiency.Not only faces the pressure of improving the prosecution efficiency, Chinese jurisdiction also faces the demands for maintaining juridical justice. The poor juridical credit and the serious juridical corruption are no doubt facts. Improving the prosecution efficiency often takes simplifying the procedure as the premise, which is likely to create more juridical mistakes. We cannot win the efficiency with sacrificing the justice. Therefore, we should take the scientific and operation characters of prosecution procedure into ourconsideration and strengthen the limitation on prosecutor's power of discretion, while we enhance the power to improve the juridical efficiency.The article is divided into five parts. In the first part, the author demonstrates the function of prosecutor and the power of discretion. The reorganizing functions of procuratorial organ in pre-trial procedure is connected with the relation between prosecutor and police, relation between prosecutor and judge inevitably. The author's points are the following:Firstly, a proper relation between prosecutor and police must be established. Secondly, we should extend the trial stage by starting it earlier and enhance the controlling pre-trial procedure. We should make a historical viewpoint on the status, functions and duty of prosecutor, for one purpose of establishing prosecutor is to control the entry stage of trial, and the other purpose is to control the misuse power by police. The modern procuratorial system is developing while it's being with the historical mark inevitably.In the second part, the focus is procuratorate/prosecutor starting up the power of procedure discretion. An analysis on procuratorate/prosecutor starting up the power of procedure discretion in countries such as Germany and Japan has been made. The conclusion is to establish relation between prosecutor and police. Law in Germany and Japan authorize prosecutor the power of flexible investigation, with which prosecutor achieves the aim of controlling the police. It's suggested that Chinese prosecutor should be authorized the power of flexible investigation, while attention should be paid to avoiding prosecutor from overusing the power, which makes procuratorate frontline organ in investigation instead of its real role...