A Comparative Study Of American And Chinese Criminal Non-Prosecution Constraints

As a product of the doctrine of free evaluation prosecution,the power not to prosecute is an important respect of public prosecution, and its legitimacy has been recognized around the world. In the United States of America, district attorneys enjoy sufficient non-prosecution discretion. A large number of criminal cases are closed by the way not to prosecute, which is of great significance on the bypass of cases as well as judicial resources saving, and solves the backlog problem. In contrast, China's Criminal Procedure Law also authorizes the prosecutor the extent of authority not to prosecute, however, owing to a variety of reasons proportion of non-prosecution cases is limited in judicial practice, making the due value of the system unattainable. Expanding the application of non-prosecution replies to modern trends in criminal proceedings, but at the same time, constraints must be set for effective means to prevent abuse of the power not to prosecute. Starting from the nature of the public prosecution, combined with the specific circumstances of the two countries, this article tries to explore appropriate approach of non-prosecution restrictions through the China-US comparative analysis.The content is composed of four chapters, a total of thirty thousand Chinese characters.The first chapter is an overview of the non-prosecution system of China and the United States, which mainly explains the institution and its implementation in the two countries. On the one hand, the American non-prosecution system has been fully implemented; on the other hand, China's academic community has also advocated expanding the application of discretionary non-prosecution. To prevent the abuse of public power, the research on restricting the power not to prosecute appears to be particularly necessary.The second chapter is to make clear the nature of public prosecution authority. To discuss the constraints of non-prosecution, we must first clarify the essence of the"power not to prosecute", which itself is not an independent sense of power. This chapter attempts to discriminate four concepts: prosecutorial power, public prosecution authority, power not to prosecute and discretion not to prosecute. And the conclution is that the power not to prosecute is essentially negative exercise of public prosecution authority, therefore, the tenative idea of non-prosecution constraints can be equivalent to restricting the power to advance prosecution. There are differences between the two countries in comprehending the implication of"public prosecution authority"on the field of theory and practice, which leads to diversity in corresponding constraints measures. I hope that comparative analysis will demonstrate that both in the US and China the power to prosecute is part of the executive power in nature, and most relavent differences in the system is based on disparity in national circumstances.The third chapter is comparison on restriction for non-prosecution in the United States and China. Relatively, the US strictly follows the structure of"separation of powers", which embodies within itself the checks and balances between and among powers. And so, the related constraints seem more indirect and loose. With high expectations and trust to authority and wisdom of the prosecutor, people believe that the US Attorney is adequately qualified to exercise the power not to prosecute. While the Chinese way to achieve constraints is through legislation. However there is still deficiency in theory and in practice, lacking of rationality and feasibility in general.In the last chapter I'll try to give some suggestions to consummate the constraints struction for non-prosecution in our country. In view of the foregoing analysis and comparison, and taking the orientation of the right of prosecution into account, to solve the legislation and judicial practice problems, this article will put forward a sound combination of China's actual and ideal approach and come to the final conclusion. The whole mechanism should be established with the matual relationships between different state powers, emphasizing judicial review by the court of the decision not to prosecute, and adjusting the internal oversight of the procuratorate. As for the impact of external forces, it is important to rectify intervention from the ruling party, and at the same time reform the People Supervisor Regime.The conclusion summarizes the key viewpoints of this article. It is elaborated that the constraints system which in the US is rational but seldom invoked may run well in the China judicial environment, making reference possible.