Research On Prosecutor's Discretionary Power

In modern society, with the continuously rising crime rate and the increasing case handling pressure of the judicial authorities, prosecutor's discretionary power has gradually gained the acceptance of the criminal justice system of different countries around the world, and is playing an essential role in practice. This is totally because the prosecutor's discretionary power displays the value of judicial economy and the ideal of individualization of punishment, which contributes to the benign assignment of the limited judicial resources between minor and serious criminal cases, and the balance between social interests and human rights protection. However, influenced by the concept of guilty will punish and the traditional culture of severe penalty doctrine since long, as well as the deficiency of laws and regulations themselves, prosecutor's discretionary power does not indicate its full value in the judicial practices. This thesis aims to study the procedure of the generation, development and wild application to judicial laws of prosecutor's discretionary power in detail. And I hope it will help our country's criminal justice.This article will be developed from five aspects:In the first part, the author looks up a large quantity of materials and dictionaries, and explains the concept of the right of discretion and prosecutor's discretionary power and the relations between them. Then, another part briefly introduces the generation background of prosecutor's discretionary power: the emerging of the doctrine of free evaluation prosecution, the change and development of the concept of criminal law and the public interests. In the end, I summarize the features of prosecutor's discretionary power of procurators: legality, flexibility and conditionality.In the second part, I specifically discuss the value foundation of , as is known to all, if a theory emerges and exists for long, it must have its inner value or theory foundation, I explain the prosecutor's discretionary power from four aspects: Prosecution efficiency, individualization of punishment, humanism and criminal policy.In the third part, I introduce the practical conditions in foreign countries of the prosecutor's discretionary power and the relevant judicial principles of UN in a comparative analysis way, including the situation in England, America , Germany, Japan and Taiwan of china.The fourth part analyze the legislation and practice situation of prosecutor's discretionary power in our country's current criminal law, mainly about two different suing way indicating the connotation prosecutor's discretionary power in it: relative non prosecution and non prosecution for insufficient evidence. I analyze their applicable conditions and efficacy in detail, and briefly introduce the pratical situation of prosecutor's discretionary power in our country.The fifth part is the most important part of the whole thesis. From the above discussions, I personally believe that the prosecutor's discretionary power in our country needs further development and fulfillment, and thus the emphasis is how to implement prosecutor's discretionary power. Firstly, we should implement the applicable principles of it, which is legality, public interests and stability; secondly, we should implement the practicable methods , such as enlarge the range of relative non prosecution, add the system of postpone prosecution, draw on the legal core of plea bargaining; finally, based on the traditional adage that where there is power, there should be supervision, we should strictly implement the restriction mechanism of prosecutor's discretionary power, thus to better realize the value of prosecutor's discretionary power and maintain the judicial justice.