Study On Discretional Right Of Prosecution

Discretional right of prosecution is one important content of the right of prosecution and it is based upon the value of improvement prosecution efficiency and defending the lawfull rights of the accused party. Discretional right of prosecution appeared with the civilization of criminal penalty and domination of opinion stressing prevention of crime and protection of the social interests. In our country this discretional right is adopted, but it is hard to exercise this right correctly at judicial practice, it is used either too strictly or too loose. This problem has been sensed by many theorists and experts, but it is scarcely discussed. This problem has been sensed by many theorists and experts, but it is scarcely discussed. This article will discuss this question thoroughly from many perspectives.This article includes four parts apart from introduction. They are detailed as following.Introduction. In the introduction part, the basic system of examination for prosecution and legislation for discretional right of prosecution in China will be briefly recounted. Also defects in those legislation and proposals for making them perfect will be provided in the introduction part.Part One. The theoretical and practice foundation of the discretional right of prosecution are elaborated detailed in this part. To study the theoretical right of prosecution, the value concept of penalty must be touched upon firstly. Historically, the theory of retribution penalty and the penalty concept with utilitarianism had been appeared one by one. However, any one of them could not further alone the establishment of the discretional right of prosecution. The discretional right of prosecution had been set up after the establishment of retribution penalty concept and prevention penalty concept. For studying a regime, we need not only research the foundation but also the practice foundation of its existence. This article will expound the practicee foundation of the discretional right of prosecution in four aspects as follows: 1) the suit requires the pursuing for efficiency with the just as a precondition. 2) the individualization and commutating of penalty suggests that some kinds of cases need not to be brought to courts. 3) the discretional right of prosecution must be exerted at the need of politics. 4) the exercise of the discretional right of prosecution will be helpful for the investigation activity by the investigation agencies and for avoiding the useless activities.Part Two. The focus of this part is in the basic characteristics of the discretional right of prosecution. Any right have its principles and features of the exercise. Comprehensively, there are identities between the discretional right of prosecution and the right of prosecution which are similar in basic features that the right is a legal right, a public-interests related right, and a procedural right. As a legal right, its substantial and procedural scope should be explicitly provided in the laws. Despite the name of discretion, the discretional right of prosecution should be exercised within the certain scope and certain range. That the discretional right of prosecution is public-interests related means that exercise it or not be taken. That the right is procedural means that the effects of the discretional right of prosecution is simply the effects of a procedural right which do not give any substantial appraisal on the crime.Part Three. This part do detailed discussion largely in operational framework of the discretional right of prosecution. The operational procedure of the discretional right of prosecution has the similar content with the right of prosecution, on the one hand, and own special procedure on the other hand, such as the discussing and decision-making of procuratorial commission in the decision-making process, the procedure of acceptance of petition for reconsideration, revision and complaint after the decision of rejection for prosecution. In the operational process, the discretional right of prosecution have its special rule...