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On The Non-prosecution System

Posted on:2010-11-02Degree:DoctorType:Dissertation
Country:ChinaCandidate:S XieFull Text:PDF
GTID:1116360272999171Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
This article leads the perspective and knowledge of "relative rationalism"into the study of non-prosecution system. With the perspective of relative rationalism, I understand, interpret, reflect on and sort out the theory, the operation of the system and the development path of our country's non-prosecution system. Then I integrate due process with our country's specific socio-cultural factors. At last, I explore the suitable system's improving path of our country's non-prosecution system. When talking about the legislative point of view, there are some omissions and deficiencies in the non-prosecution system at the beginning of its design, which has not been considered very comprehensive by the legislators; when talking about the judicial level, the appliance is too conservative and negative and the appliance rate is too low; when talking about the protection of human rights, there are many "process back" in the operation of the system; when talking about the operation of non-prosecution discretionary power, there are non-prosecution abuse in many cases, especially in the relatively non-prosecution system.This article has eight parts.The first part is the foreword. Firstly, this article comprehensively reviews Chinese non-prosecution system's problems, and carries out the shortcomings of previous studies in the summing up and drawing on the results of previous studies. To promote a reasonable use of the non-prosecution system, to promote its integration with the conditions of our society, to amend the study mode and we should intensify the study according to these questions. Finally, I propose the ideas and perspectives, that is, with the method of relative rationalism, I approach a comprehensive look at the Chinese evolution of non-prosecution system. This article takes a reasonable perspective to improve the non-prosecution system in the methodological level, the theoretical level, system level.The second part is the interpretation of relative rationalism perspective. This article explains the scientific proposal background and the basic content of relative rationalism, and comprehensively sums up the theoretical and practical value of the introduction of the perspective. The application of the perspective in our country's non-prosecution system is the understanding of axiomatic thought of the system, the relative reasonable conditions and the general plan of the non-prosecution system. The axiomatic thinking in a relatively reasonable context is not rigid and absolute, but having a relatively universal category. Its theoretical significances are: the realization of constitutionality, the social and cultural factors that contribute to judicial practice; practical value: as a practical theory, the relatively reasonable theory offers a constructive guidance to the operation and improvement of the law. Relatively reasonable theory is good for the evolution and mechanisms of the judicial mode, and gives new ideas to the system improvement.The third part is the background knowledge: an overview of the non-prosecution system. On the one hand, this paper analyzes the meaning, the definition and the characteristics of the non-prosecution, etc. On the other hand, I interpret and reflect on non-prosecution system's development and the evolution of the common law countries, the civil law countries and our country. As a result of cultural, legal proceedings, judicial philosophy, and social background differences, the non-prosecution system and its concept is quite different in civil law countries and common law countries. Non-prosecution means that prosecution organs hear cases that the public security organs investigate or transfer, think that the suspect does not constitute a crime or should not be punished according to the law, and decide not to give them proceedings. Non-prosecution is not only a statutory authority but also an obligation; the statutory authority includes non-prosecution by law and discretionary. The indictment right is made up of positive non-prosecution and passive non-prosecution, and the former means prosecution while the latter means non-prosecution.The fourth part is axiomatic thought of non-prosecution system. This article discusses the basic theory of the non-prosecution system. That is the protection of human rights theory, the separation theory of prosecution and trial, the doctrine of prosecuting timely and prosecuting discretion. This paper argues the value of the system that is the protection of human rights, economic litigation, justice system and fair procedure. It is urgent and essential to update the judicial philosophy, changing concept of human rights protection in the concept and spirit level; only by the reasonable set of effective mechanisms can we protect the basic rights of criminal suspects, and fully carry out the right protection spirit by the mechanisms in the system settings, let the "priority interests of criminal suspects" come true. Trial separation with prosecution means the separation of trial, independence, but not dependence. This is a sample that the power subjects separation and balance, and the purpose is preventing the abuse of public power and protect human rights.The fifth part is the current situations and problems of our country's non-prosecution system. The current situations include legislative situations and judicial situations; problems include legislative problems and judicial problems. According to the Code of Criminal Procedure, non-prosecution is that after prosecution organs hearing cases that the public security organs investigate or transfer, think that the suspect does not constitute a crime or should not be punished according to the law, and decide not to give them proceedings or stop the proceedings. Generally speaking, according to the Code of Criminal Procedure article 140, paragraph 4, the provisions of section 142, non-prosecution can be divided into statutory non-prosecution, insufficient evidence and the discretion, so the system of our country can be deconstructed into legislative and judicial current situation. The drawbacks of non-prosecution is the appliance rate is too low, many situations to avoid the non-prosecution exit, the shackles of the working mechanism, the conditions attached to the prosecution of such systems by trial. The sixth part is the first aspect of the improvements of the relative rationalization of non-prosecution system: multi-perspective considerations. This mainly includes four aspects: the rational expansion of the application of non-prosecution, the effective controlling of non-prosecution, the tolerance and support of cultural dimensions, and the matching and improving of the social conditions. In connection with the low appliance rate of non-prosecution, our theory and practice sector have called for a long period of time to expand the scope of application. This article holds that a reasonable expansion of the system should not only in the legislation but also in the strengthen of judicial interpretations and its understanding and flexibility application, and through formulating specific rules and case-handling standards of normative legal documents to apply the policy objectives of non-prosecution. Under the trend of a reasonable expansion of the scope, how to effectively set up a scientific monitoring and balances mechanism is essential.The seventh part is the second aspect of the improvements of the relative rationalization of non-prosecution system: experience - mechanism - system. This mainly includes three aspects: the accumulated experience of non-prosecution, the improving of the operating mechanism of the non-prosecution, the construction of the formal non-prosecution system. The most basic and the most trivial aspect of non-prosecution development is the work-related experience. As Holmes said: "The life of law is not logic, but experience." Human knowledge stems from a feeling of practical activities and experience and understanding is the basis of feeling. Prosecutors at all levels have accumulated practical experience over the years and it is the most important foundation. On condition of lacking legislation, prosecutors can spontaneously apply non-prosecution according to the criminal and immaturity policy, and carry out in their jurisdictions. As the non-prosecution is attached to the policy, so the inspection bodies should make efforts to refine the policy and develop the pilot scheme in these areas.The eighth part is the third aspect of the improvements of the relative rationalization of non-prosecution system: the determination of the minimum limits. This mainly includes three aspects: the prohibition of procedures back, the establishment of judicial review system, the cautious pilot of non-prosecution system with conditions. In the progressive evolution prosecute of constitutionality in China, the improvement and perfection of non-prosecution system also needs a long-term trial and error reflection, and gradually become perfect and progressive. The nation should legislate as soon as possible to prohibit the procedure turn back, and we need focus on the following factors: First, a reasonable manifestation of basic requirements of justice; second, illustrate the presumption of innocence; third, effectively adapt to the change of times. The establishment of the judicial review system of non-prosecution actually establishes a pre-trial review mechanism, which could strengthen our judicial review and procedural magistrates system, which guarantees the protection of basic human rights.
Keywords/Search Tags:non-prosecution system, relative rationalism, axiomatic thought, system improved
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