On The Operation And Regulation Of Prosecutorial Discretion In The New Era

The report of the 19 th National Congress of the Communist Party of China in2017 announced for the first time that socialism with Chinese characteristics has entered a "new era",marking that my country has entered a new development track,and my country’s procuratorial system is no exception.In 2021,the Central Committee of the Communist Party of China first announced the "Opinions on Strengthening the Legal Supervision of Procuratorial Organs in the New Era",emphasizing the new political mission of procuratorial organs.Procuratorial discretion is a way for procuratorial organs to exercise procuratorial power,and it is also an important power to realize the procuratorial mission.In the new era,prosecutorial discretion is flourishing and expanding.The history of the law shows that people swing back and forth between strict rules and discretion.prosecutorial discretion is derived from prosecutorial power,and is actually a way of exercising power,that is,discretion.The initial expansion of prosecutorial discretion based on utilitarianism is to ease the burden of litigation and improve litigation efficiency.However,with the in-depth development of prosecutorial discretion,its value is not only to improve the efficiency of litigation,but to achieve the goal of the treatment of offenders.The accused can get rid of the proceedings in a timely manner and return to society smoothly,,which realizes the crime prevention and social harmony.In an era where criminal justice is constantly changing to meet the needs of social development,prosecutorial discretion has not only changed in terms of value,but also in terms of connotation and extension,scope of authority,operational motivation,practice status,expansion risks,and regulatory means.This is what this article will focus on.Through in-depth analysis of the basic content of prosecutorial discretion,some constructive ideas and directions are provided for the further development of prosecutorial discretion in our country.This thesis is divided into six chapters in addition to the introduction and conclusion.Chapter 1: the Trend of the Times in the Operation of Procuratorial Dscretion.This is one of the important contents of this article,and it is also an important innovation of the article.The content of this chapter gives a high-level overview of the era background of the operation of procuratorial discretion,so as to highlight the characteristics of the era of procuratorial discretion.First,the change in the concept of public prosecution: from legal prosecution doctrine to prosecution cheap doctrine.This is the fundamental reason for the development and operation of procuratorial discretion.The second is the change of litigation mode: from adversarial justice to cooperative justice.This precisely combines the characteristics of the current global criminal justice reform,that is,to avoid entering the trial process as much as possible,and "abandoning the trial" has gradually become a trend,which directly forces the litigation process to advance,and puts forward a higher level of prosecutorial discretion.Require.Forced to change the state of the relationship between the prosecution and the defense,from confrontation to cooperation.The premise of cooperation is the prosecutor’s use of discretion as a bargaining chip.The third is the evolution of the prosecutor’s role: from a simple controller to a procedural leader.With the development of the rule of law in the era,the role of prosecutors or their functional roles has also changed.The fourth is the transformation of the function of prosecutors: from criminalization to governance.With the development of the times,prosecutors have gradually changed from the single responsibility of prosecuting crimes in the past to shoulder the historical mission of governing society.By exercising the discretion to prosecute,the prosecutor realizes the guilt function of criminal proceedings,allows the accused person to return to society as soon as possible,reduces social opposition,and thus maintains social order and stability.Chapter 2:the Basic Theory of Procuratorial Discretion.This chapter mainly discusses the basic concept,power type and value embodiment of procuratorial discretion.First,it focuses on explaining the connotation and extension of procuratorial discretion from a new perspective.The first is to understand the current prosecutorial discretion from two scholars’ perspectives: the perspective of dialogue-based discretion and the perspective of accountability-based discretion.The second is to further analyze the specific performance of procuratorial discretion from the level of constituent elements.From the perspective of the procuratorial discretion from the formal level,the procuratorial discretion can be divided into multiple elements.The procuratorial discretion is composed of eight elements,including the subject of discretion,the standard of discretion,the principle of discretion,the method of discretion,the object of discretion,the goal of discretion,and the discretion of the discretion.Results,discretionary effects.These elements indicate the path or direction for the development and expansion of prosecutorial discretion.Secondly,it focuses on explaining the important authority of procuratorial discretion,that is,the discretion to prosecute.At present,the theoretical circle has not reached a consensus on the basic connotation of prosecution discretion.This article will define its connotation from a broad perspective.Prosecution discretion not only involves the discretion of "whether to sue",but also includes the discretion of "how to sue or not to sue".The former is the basic form of discretion,while the latter is an advanced form of discretion.In addition,plea negotiation and sentencing recommendation are important related systems of prosecution discretion.The former two are extensions and developments of prosecution discretion,but they are not a new or unique type of discretion.The core content of procuratorial discretion is still the discretion to prosecute or not,that is,the discretion to prosecute.Plea consultation is one of the important ways and procedures to realize the discretion of prosecution.Sentencing recommendations are the basic system for implementing and promoting plea bargaining.Secondly,it discusses the theoretical foundation of procuratorial discretion through interdisciplinary research methods,especially the use of criminal law’s view of purpose and repression,sociology’s crime labeling theory,and economics game theory to explain the existence of procuratorial discretion.necessity.Finally,it focuses on the decriminalizing value of current prosecutorial discretion.There are two ways to realize decriminalization: decriminalization in legislation and decriminalization in justice.Generally speaking,the latter is more feasible than the former.Of all the paths to judicial decriminalization,prosecutorial discretion is the most advantageous.Prosecutors can maintain neutrality and exercise their discretion in a timely manner to make non-prosecution decisions during the review and prosecution stage,so that the defendant can be smoothly diverted from the proceedings.This is to explain the function of procuratorial discretion in procedural law from the perspective of criminal substantive law,breaking through the limitation that predecessors only studied the procedural value of procedural discretion in procedural law.This is the first theoretical innovation highlight of the article.Chapter 3:the Review and Development of my Country’s Procuratorial Discretion.This chapter mainly discusses the development of my country’s procuratorial discretion from the perspective of criminal justice policy.First of all,it discusses the evolution of criminal policies related to procuratorial discretion in my country,including the criminal justice policy of "combining leniency with strictness" and the criminal justice policy of "fewer arrests,careful prosecution and prudence".It focuses on the background of the current criminal justice policy of "fewer arrests,prudent prosecutions and prudent detention" in my country.Secondly,it directly discusses the development process of my country’s procuratorial discretion from the perspective of the criminal justice policy of combining leniency with strictness.It is found that the development of my country’s procuratorial discretion is inseparable from the guidance of criminal justice policy.It also reflects on the problems and dilemmas existing in the development of procuratorial discretion,and analyzes the reasons for the dilemma.Finally,discuss the historical evolution of my country’s procuratorial discretion.Including the creation,revision and new development of prosecutorial discretion.Among them,under the guidance of the concept of active procuratorial,my country’s procuratorial discretion has developed rapidly.At present,relative non-prosecution,conditional non-prosecution and special non-prosecution have been established,and the practice of corporate compliance non-prosecution is being explored in judicial practice.Chapter 4:the Practice and Comparison of Extraterritorial Procuratorial Discretion.This chapter mainly briefly introduces the basic development of procuratorial discretion in the two legal systems.In common law countries,the development of British prosecutorial discretion is manifested in the establishment and development of the Crown Prosecution Service,the looseness of prosecution discretion standards,and the increase in the proportion of plea bargaining.The United States is manifested as:the influence of huge misdemeanor cases,not being controlled by judicial review,and the phenomenon of procuratorial judgments.In civil law countries,Germany shows:the introduction of discretionary non-prosecution,the speeding up of criminal procedures,and the role in sentencing negotiation.France: Adherence to the principle of due prosecution,non-prosecution in relation to alternative measures,application of the pretrial plea procedure.Then it compares the basic connotation of procuratorial discretion in China and foreign countries.In general,the scope and breadth of my country’s procuratorial discretion are smaller than those of extraterritorial procuratorial discretion.Next is the comparison of the operation of the procuratorial discretion of the two legal systems.Finally,this paper analyzes the current situation and basic characteristics of the expansion of procuratorial discretion at home and abroad.Use the components of procuratorial discretion to analyze.Chapter 5:the Practical Dilemma of Procuratorial Discretion.This chapter expounds the dilemma in the operation of procuratorial discretion from the macro and micro(general and special)perspectives.First of all,the theoretical dilemma,that is,the procuratorial discretion may deviate from the traditional criminal principles,such as deviating from the principle of statutory crime,ignoring the equal application of the law,and destroying the separation of prosecution and trial.Second,the abuse dilemma: prosecutorial subjects abuse prosecutorial discretion,such as selective prosecution,retaliatory prosecution,abuse of non-prosecution,and forced confession during plea bargaining.The first two are common dilemmas of prosecutorial discretion.Finally,it focuses on the practical problems of procuratorial discretion in the Chinese context.The biggest problem in the application of procuratorial discretion in my country is the relatively low rate of non-prosecution,which has been going on for more than 20 years.But still no improvement.This is mainly due to the following problems: the limitation of the policy orientation of the procuratorial discretion,the insufficiency of its own norms,the lack of the relative independence of the procuratorial discretion,and the lack of the supervision mechanism of the procuratorial discretion.Chapter 6: the Regulatory Path of Prosecutorial Discretion.This is the last important content of this article.First of all,it introduces the basic path of regulating the expansion risk of prosecutorial discretion: internal regulatory path and external regulatory path.Among them,the internal regulation methods include: professional ethics system and policy guidance mechanism;the external regulation paths include: judicial supervision mechanism and democratic supervision mechanism.Secondly,combined with our country’s judicial practice,we put forward a method that conforms to our country’s regulation of prosecutorial discretion.The first is to improve the normative path of prosecutorial discretion in my country,including law-led reform,policy-guided prosecution,and disciplinary punishment mechanism to restrain discretionary behavior.The second is to improve the fairness of prosecutorial discretion: emphasizing objective and fair prosecutorial ethics,promoting the mechanism of equality between prosecution and defense,and constructing an evidence disclosure system.The third is to protect the democratic path of prosecutorial discretion,including improving the non-prosecution hearing system and giving full play to the superiority of the people’s supervisor system.