Comparative Study On Discretionary Power Of Public Prosecutors

Discretionary power of public prosecutors is for prosecutors to choose from the options available in a criminal case, such as filing charges, prosecuting, not prosecuting, plea-bargaining, and recommending a sentence to the court according to individual judgment under the law, which is closely related to the principle of opportunity. It empowers public prosecutors to decide whether to prosecute or not even if the offence fulfills every element of crime. The power of policy waiver, conditional dismissal and diversion lessen trial burden of courts, improve procedural efficiency and avoid disadvantages of short-term punishment against liberty. Since later stage of last century, restorative justice developed in most countries in the worlds has widened the ways of exercising discretionary power by public prosecutors. Public prosecutors divert cases with alternative measures as compensation and conciliation and protect victims'rights to the maximum extent.With the view of development and dynamic equilibrium, discretionary power should be the combination of legality and flexibility and the combination of procedural nature and substantive nature. Prosecutors should exercise discretionary power according to law while deciding whether to prosecute and how to prosecute according to particular situations. They play initial filtering role as well as being complete independence in making a not guilty decision or applying non-custodial measures on petty offences, which shows a substantive nature.Diversion is a penalty policy, which developed from the United States of America and was introduced into European countries like Germany. Where appropriate and compatible with the legal system, the prosecution service dealing with criminal cases should be empowered to discharge the offender if they consider that it is not necessary to proceed with the case for the protection of society, crime prevention or the promotion of respect for the law and the rights of victims. For the purpose of deciding upon the appropriateness of discharge or determination of proceedings, a set of established criteria shall be developed within each legal system. For minor cases the prosecutor may impose suitable non-custodial measures, as appropriate. Diversion should be authorized by law and supported by related stipulations. Prosecutors can only divert cases after approving it from their bottom of hearts and get supports from police, probation service, volunteers and community.The penal policy of combination of leniency with punishment provides legal basis for prosecutors to exercise discretionary powers in our country. Under this penal policy, the prosecution service must positively pursue case settling mechanism for minor offences, divert suspects of minor offences by making non-prosecution decision and promote conciliation between defendant and victim. We must explore and spread system of suspended prosecution in the field of juvenile offences and write non-custodial measures of community correction and protection and observation into law in order to provide legal safeguards and systems for diversion. It is also important to learn reasonable elements from the system of plea bargain, promote the popularity of summary procedure and simplify procedure if defendant makes guilty plea while protecting basic human rights of defendants. Of course, when we learn from other's countries'system and experience, we must realize that we are still at lower level stage of rule of law. Therefore, we must design our system of discretionary powers according to the levels of rule of law in our society and basic natures of prosecutorial system with Chinese characters while learning from related legislations and judicial system of foreign countries. So, we can construct our system of discretionary power in a reasonable way and push forward the modernization of Chinese prosecutorial system.