As an important system of criminal proceedings, the withdrawal of public prosecution is not only based on the profound theory, but also has a very important institutional value in the protection of human rights, the improvement litigation efficiency and the realization the litigation justice and so on. It is still questioned whether the prosecution has the right to exercise the withdrawal of public prosecution around the world, however, it is a tendency that the discretion of prosecution and the right to exercise the withdrawal of public prosecution shall be acknowledged and regulated legislatively. Because the common law applies the doctrine of convenience and economy of prosecution, the prosecutors, both in theory and practice, have full discretion to the prosecution, including the right to withdraw the public prosecution; the civil law adopts the doctrine of the prosecution by law, so the tradition does not recognize the prosecution discretion. But under the influence of the utilitarian and pragmatic ideological trend, more and more cases are withdrawn by prosecution as one solution. It can be seen, allowing prosecutors to withdraw the public prosecution after the prosecution has gradually become a common practice in the world.Our system of the withdrawal of public prosecution has processed from the recognition by law to a lack of legislative recognition, then to judicial interpretation supplementation, coupled with problems during the operation of the system in practice, which bring about a long debate for the existence or abolishment of the system. To this respect, the paper supports the views of those who keep on improving, and demonstrates the theory foundation, the system value and practical need, points out the system's legitimacy and necessity of existence, and then gives suggestions to correct the detects from the legislation and practice aspects in China.The paper is divided in four parts:In the first chapter, it is about the basic theory of withdrawal of public prosecution. This section describes some basic information in order to achieve an overall understanding of this system. Firstly the concept of the withdrawal leads to the concept of the withdrawal of the public prosecution. After we have apparent and emotional understanding, the nature of the system is revealed from the right of public prosecution. Then the three major theoretical foundation - public prosecution theory, the doctrine of separation of judgment and prosecution theory, the doctrine of convenience and economy of prosecution is specified to reveals the vitality of the system.Chapterâ…¡is about the legislation modes of the System which contain some typical legislation examples from countries (regions) in order to study the operation of the System. This chapter divides countries into relevant legislation modes by the standards whether it is free to withdraw and whether judicial review is required. Then the provisions of regulations of all classification aforesaid are introduced on the purpose of the improvement of our system.The third chapter is about the history and current situations of the system of withdrawal of public prosecution. The first two chapters are specified from a common view on this System when the last two chapters focus on characteristics of our system, which contains the development process and defects of the System at present.Chapterâ…£is about the future and prospects of the System. First, the dispute in China on the existence or the abolishment of the system leads to two other reasons-its own system values and reality needs, which conclude that the existence of this System should survive. After it comes to a positive answer the paper puts forward the legislative suggestions for the major problems.
|