Study On Conditional Non-prosecution System

Conditional Non-Prosecution System, also known as Reprieving prosecutionsystem in China, is originally created by grass-roots procuratorate in order to meet theneeds of the criminal policy in combination with the actual case carried out by theJudicial experiment, which have adapted to the actual needs of current society and inline with the trend of the age. During the transition period of China, with the rapidsocio-economic development, crime in the whole society is rising year by year. At thesame time, the number of juvenile crime is substantial increasing. How to strengthenjudicial protection for such suspects shall be taken into the broader concerns by thejudicial organs at all levels. Due to the distinguished case effect and social effect, thereprieving prosecution system gradually developed from internal experiment byindividual grass-roots prosecutorial organ to country-wide prosecutorial organ. In peakperiod, one-third of grass-roots prosecutorial organs applied to conditionalnon-prosecution system, furthermore, the applying scope of conditionalnon-prosecution system also gradually expanded from initially minor people crimecases and student crime cases to general minor crime cases and organizations crimecases. On the legislative level, according to the years of judicial practice, the latestcriminal procedure law clearly defined Conditional Non-prosecution System(Reprieving Prosecution System). Obviously the conditional non-prosecution systemin China originally comes from judicial practice of grass-roots procuratorateorganizations instead of top-level systems design. Therefore, we need to analyze thissystem deeply. Furthermore, we shall build up our own conditional non-prosecutionsystem based on new Criminal Procedure Law by referring to legislations andprovisions in other countries and in conjunction with the judicial practice.This thesis attempts to analyze the concept, character, theoretical basis of reprieve prosecutionsystem. Meanwhile, comparing with related systems in other countries and regions,this thesis endeavors to contribute new thoughts and suggestions for building legalregulation of conditional non-prosecution system in line with China’s currentjurisdiction situation.The structure of this thesis is divided into five chapters, as follows:Chapter Ⅰ is the overview of conditional non-prosecution system. In this part, Idefine the concept of conditional non-prosecution system clearly and outlining theorigin and development of conditional non-prosecution system through the changes ofthe penalty purpose from doctrine of retribution-oriented punishment to doctrine ofpurpose-oriented punishment and the development course from prosecution legaldoctrine to prosecution convenience doctrine. Then, I will analyze the general theoryof conditional non-prosecution system including public prosecution right theory,litigation economic principles and criminal law inhibition principles. Finally, bycomparison of the system of conditional non-prosecution, reprieving prosecution,probation, discretion not to press charges, I am trying to further clarify the truemeaning of conditional non-prosecution system, which shall be particularly importantfor the proper understanding of logical relationships between conditionalnon-prosecution system and reprieving prosecution system. I will conduct a detaileddemonstration on this issue.Chapter Ⅱ analyze the relevant mechanism overseas. In this part, I introducemechanism and the processing mode of the Japan prosecution hesitating system,Germany conditional non-prosecution system, Taiwan suspending prosecution system,and United States suspending prosecution system. Furthermore, I analyze the differentfeatures of the above systems individually under the background of their own age inorder to provide reference for building up our own conditional non-prosecution systemin line with China’s social reality and criminal procedure legislation.Chapter Ⅲ expounds the current status and value of conditional non-prosecution system. In this part, I will briefly review the origin and development course ofconditional non-prosecution system in China, meanwhile, this part identifies thetheoretical characteristics of conditional non-prosecution system under Chinesecontemporary background so as to demonstrate the necessity and feasibility ofimproving this system.Chapter Ⅳ mainly focuses on how to improve and perfect the conditionalnon-prosecution system in China. First of all, I study on how to resolve the problemsof application of objects and conditions to the conditional non-prosecution system.Second, I analyze the conditions for application of conditional non-prosecution systemfrom the objective and subjective conditions views. Finally, I contribute new thoughtsand suggestions on how the conditional non-prosecution system should be set up.Chapter Ⅴ concerns on how to design the main procedure of conditionalnon-prosecution system. First of all, I conduct research on the decision makingprocedure in conditional non-prosecution system. Furthermore, I comment on hearingprocedure of conditional non-prosecution system applied widely by the localprosecution authorities in practice. Secondly, I consider the restrictive mechanism ofconditional non-prosecution system. All power must be restricted. As the right ofpublic prosecution, conditional non-prosecution system shall be restricted withoutexception as well. In this chapter, by analyzing the necessity of building up restrictionmechanism, I aim to set out restriction mechanism of conditional non-prosecution inline with China’s actual situation. Third, I contribute thoughts and suggestions onimproving conditional non-prosecution system through the study on the duration,content, objects and methods of conditional non-prosecution system. Finally, Idemonstrate the effect of conditional non-prosecution system.