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A Comparative Research On Procurator's Discretion In Pre-trial Procedure

Posted on:2005-10-16Degree:MasterType:Thesis
Country:ChinaCandidate:X L LiFull Text:PDF
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There is a broad sense and a narrow sense in terms of procurator's discretion; however, in China's academic circle, it is generally defined as discretion not to prosecute. This article discusses procurator's discretion in the broad sense, and holds that the judicial attributes of the procuratorial power make it closely connected with all links in the criminal procedure, ranging from the start-up of investigation procedure to the final trial. Procurator's discretion is formally represented in the power to use evidence, judge on facts, and apprehend laws, as well as to make justifiable and reasonable choice based on specific legal and actual situations. Thus in criminal pre-trial procedures, in addition to the discretion not to prosecute, procurator's discretion also includes the criminal start-up procedure discretion, forcible measure adoption discretion, and plea bargaining discretion.In the first part, based on a definition of the functions of procurators, this article defines the concept of procurator's discretion and analyzes the main reason of its emergence and its forms of expression in the pre-trial procedure. Then, making macro investigation by letting it go through the criminal jurisdiction, it discusses the status and value of procurator's discretion in the progress of rule of law in criminal - jurisdiction, and maintains that procurator's discretion is helpful for the realization of rule of law in criminal jurisdiction.In its second and third parts, this article picks such typical countries as USA, UK, Japan, and Germany as the object of investigation, and through a comparison betweenthe legislation and judicial practice of procurator's discretion in such countries, analyzes their common points and differences in a bid to seek rules and regulations that may serve as reference. It points out that although in such countries, different backgrounds of historical evolution and patterns of procedure have resulted in different scales in procurator's discretion, generally speaking, there exist roughly basic forms of procedure in every link of the pre-trial procedure, and while procurator's discretion is affirmed, the prevention of abuse of it is also got strengthened. Subsequently, in its third part, this article makes a survey and summary of the mechanism to limit procurator's discretion in these countries.In the fourth part, based on the previous discussion, it analyzes the status quo and problems existed of the Chinese procurator's discretion system, and combining the practical situation, puts forward a fundamental opinion to make the procurator's discretion system more complete: to duly expand the discretion not to prosecute; to strengthen the control of investigation start-up procedure by performing procurator's discretion; and to establish a judicial control system for forcible measure discretion.In the last part, aiming at whether or not the plea bargaining system should be introduced, an issue under considerable debate recently, and through a rational analysis of the plea bargaining system in the US, the article holds that due to the lack of system and conception in current China, it is not proper to completely introduce in the plea bargaining system; nonetheless, reasonable factors in the plea bargaining system should also be taken for reference. It also discusses the justification of procuratorates' discretion in advising punishment determination, as well as its rationality in specific practice.
Keywords/Search Tags:Procurator's Discretion, Comparison, Status Quo, Plea Bargaining
PDF Full Text Request
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