Research On The Legal Effect Of Withdrawing Public Prosecution

Withdrawing public prosecution in the trial stage is a litigation activity that cannot be ignored,and it plays the system function of case filtering and wrongful litigation correction.Although our country's "Criminal Procedure Law" has not clearly regulated the withdrawal of public prosecution,the criminal justice interpretation has already stipulated relevant rules.At the same time,the issue of withdrawing the legal effect of the prosecution has not received its due attention.Why is the legal effect of the return of the prosecution,the actual legal effect of the return of the prosecution,what should be the legal effect of the return of the prosecution,and what is the legal effect?These issues constitute the core content of this article.The article is divided into six chapters in addition to the introduction,and the main contents are as follows:The first chapter mainly focuses on the two keywords of withdrawal of public prosecution and legal effect.First of all,this article analyzes several issues such as the compound connotation of the withdrawal of public prosecution,the disputes between preservation and abolition,and the value basis.Secondly,it sorts out and analyzes the debate on the legal effect of withdrawing public prosecution.It is further pointed out that due to the lack of uniform research standards and the ambiguity of the concept of special legal effect,it is impossible to dialogue between different views in the study of the legal effect of withdrawing public prosecution,and it is difficult for related disputes to produce targeted theoretical results,so it needs to be renewed.Define the concept of legal effect and explore a comprehensive research approach.Finally,with the help of comprehensive research methods,the legal effect is given a new meaning,that is,the legal effect is composed of the normative effect and the factual effect.After explaining the theories of the connotation,extension,and basic characteristics of legal effect,the comprehensive legal effect is taken as the logical starting point for the study of the legal effect of withdrawing public prosecution.The second chapter mainly discusses the basis of the legal effect of withdrawing public prosecution.This chapter analyzes the basis of the legal effect of withdrawing public prosecution from two levels:formal basis and substantive basis.In terms of formal basis,judicial interpretation is the basis for the withdrawal of public prosecution to produce legal effect.At present,there is a view that the withdrawal of the public prosecution system has not been confirmed by legislation as a product of judicial creation,and therefore denies the rationality of judicial interpretation as the basis for the withdrawal of public prosecution.After refuting this criticism of the judicial structure,the author explained the understanding and implementation of the formulation of the judicial interpretation withdrawn for prosecution.On the one hand,the right to prosecute is an important expression of the prosecution,and the criminal proceedings are just the opposite.The right to file a lawsuit and the cancellation of the criminal procedure provide a valid basis for the return of the reconciliation process.Proceedings,on the other hand,are an important part of the state's right to prosecute;on the other hand,The state's right of litigation also has the disposability and requestability of the right of litigation.The basis for the withdrawal of public prosecution to have legal effect also comes from the dual nature of the right of litigation.The third chapter is mainly an analysis of the effectiveness of the withdrawal of public prosecution norms.This chapter focuses on analyzing the normative effects of withdrawing public prosecution from two perspectives:the dimension of normative effectiveness and the types of normative effectiveness.The first part mainly selects the two typical dimensions of time and matter in the effectiveness of norms.This chapter makes a systematic review and analysis of existing academic viewpoints,and on this basis puts forward the author's viewpoint on the dimension of the effectiveness of the withdrawal of prosecution norms:adhere to the viewpoint of "before the first instance judgment is announced" in the dimension of time effectiveness;In terms of dimensions,it insists on merging the relative non-prosecution matters with the jurisdictional matters on the basis of retaining the existing dimensions.The second part mainly analyzes the types of the normative effect of withdrawing public prosecution.On the other hand,the validity of the criteria can be distinguished between internal and external influences.The relationship between the powers of the prosecution and the judiciary,the judicial system for prosecuting cases and the suspension of the judicial system all reflect the internal effectiveness of the case.The impact of withdrawal of public prosecution on the five main bodies of the procuratorate,the court,the defendant,the victim,and the supervisory agency is as follows:.On the other hand,The specific effects include:the defendant is no longer in a state of prosecution,timely release of the defendant in custody,reversion of the criminal procedure,prohibition of re-prosecution in principle,and freezing Return of seized items.The division of substantive effect and procedural effect also helps to clarify the effect relationship between withdrawal of prosecution and non-prosecution decision,and eliminate some misunderstandings that may exist in academic circles.The fourth chapter mainly uses empirical research methods to examine the factual effect of the withdrawal of public prosecution and analyze the reasons for the dilemma of factual effect.The factual effect of the withdrawal of prosecution is mainly concerned with the actual operation of the withdrawal of the prosecution,which is used to test and judge whether the effect of the fact is as pre-determined by the normative effect.In order to investigate the factual effectiveness of the withdrawal of the prosecution,the author,after conducting statistics and analysis on the field survey data of S province and Q city and the case retrieval of Peking University Fabao.com and China Judgment Documents.com,found that there are courts in the actual operation of the withdrawal of prosecutions.The dismissal of the case is permitted to be arbitrary,the procuratorial power is too central,the supervisory committee strongly interferes with the withdrawal of the case,the case handling after the withdrawal of the case is chaotic and the detention is overdue.At the same time,the withdrawal of public prosecution also has other abnormalities in effectiveness,such as the tendency of withdrawing the prosecution to replace the innocence verdict in judicial practice,and the awareness of the parties' participation has increased,but the law and the prosecutors paid very little attention to their rights.Furthermore,in view of the factual effectiveness of the withdrawal of public prosecution,this chapter analyzes the reasons for the abovementioned effectiveness dilemma of the withdrawal of public prosecution from four levels:subjective,objective,direct and potential incentives.The fifth chapter mainly proposes the three-tier construction path to withdraw the legal effect of public prosecution.There are three key time points in the trajectory of withdrawal of public prosecution,namely,when the procuratorate applies for withdrawal,when the court's decision to withdraw a suit is made,and when the court's decision to withdraw a suit becomes effective,the withdrawal of the prosecution is divided into three mutually accepted stages of effectiveness.:After the withdrawal application,before the ruling is announced,after the withdrawal ruling is announced,before it becomes effective,and after the withdrawal ruling becomes effective.This chapter takes time as a clue and follows the path of three-tier construction to explore the proper face of the legal effect of withdrawing public prosecution.In the first stage of effectiveness,the legal effect of withdrawing a public prosecution is mainly manifested in two aspects:one is the binding force on the procuratorate and the court;the second is that the parties obtain the right to know the application for withdrawal.In the second stage of effectiveness,the service of judicial documents is the primary effect of the withdrawal of the public prosecution.At the same time,the withdrawal of the public prosecution should also have the effect of suspension of trial activities and the defendant's ability to appeal the withdrawal ruling.In the third stage of effectiveness,the most direct legal effect of the withdrawal of public prosecution is that the case is returned to the review and prosecution stage,and the prosecution ends after the procuratorate makes a decision not to prosecute.In addition,granting victims the right to object and remedy,as well as restricting the re-prosecution of withdrawn cases should also be included in the effectiveness of the withdrawal of public prosecution at this stage.The sixth chapter mainly focuses on the theoretical discussion of criminal procedure reversion.Withdrawal of public prosecution is a typical form of criminal procedure reversion.At the same time,criminal procedure reversion is one of the important manifestations of the legal effect of withdrawing public prosecution.How to effectively control the reversion of criminal procedure needs further discussion.The general principle of criminal procedure reversal control is also applicable to the study of withdrawing public prosecution.This chapter starts from withdrawing the legal effect of public prosecution,and goes up to the consideration of the theory of criminal procedure reversion.It discusses whether the criminal procedure reversion is reasonable,whether the conflict can be coordinated,and how to control the limits.This chapter proposes that,compared with the traditional economic principles of litigation,the realization of litigation justice,and the demonstration of human rights protection,the use of defect cure theory and procedural autonomy theory may be more helpful in responding to current academic doubts on the justification of the rationality of criminal procedure reversion.At the same time,in order to resolve the conflict between procedural reversal and procedural justice,and to clarify the boundaries of criminal procedure revolving operations,it is necessary to establish a secondary control mode with restorative control and confirmatory control as the content.