The Empirical Study On Discretional Non-prosecution

Discretional non-prosecution is the principle manifestation for the office of the public prosecutor to exercise the discretional power. By excluding cases from criminal procedure that have no need to be prosecuted, the system obtains many vital goals as raising lawsuit efficiency, saving judicial resources, protecting suspects'legal rights, and also representing the penal policy of combining punishment with leniency. However, there are few cases taking the system of discretional non-prosecution in practice. A great qunantity of cases should be applied to discretional non-prosecution are"digested"in the form of returning to public security organs or presenting public prosecution which has reulted in the present situation of"on the shelf". Currently, the academic tends to make research from the angle of standard dimension, what they concern most is the system's scopes and conditions of application. Nonetheless, the legal norm is even more consumation is still a dead letter if there is no inquiry on the reasons of the present situation from criminal practice. Therefore, this paper will analyze obstacles in application from the aspect of practice by empirica research and bringing countermeasures forward. Hoping these proposals referred above will perfect the system and work well in practice.There are three parts in the paper except for introduction and conclusion.The first part analyzes the system's nowaday situation in application and existing problems. By making investigation on a representative procuratorate in western China, this part identifies the problems of"on the shelf": some should be non-prosecution cases are sent back to public security organs or presented public prosecution by the procuratorial organs according to the suspect whether arrested or not grounded on four aspects, namely, the general applications of the system of discretional non-prosecution, the circumstances of returning to public security organs, the legally effective judgements of public prosecution and the applications of arrest procedure.The second part discusses the reasons casuing the problem of"on the shelf"comprehensively. In this part, the author finds out the obstacles to the system in practice by analyzing on related regulations and interviewing with prosecutors. The obstacles are as follows: firstly, the prosecutors and the public, deeply rooted in the punishing idea of where vice is, vengeance follows and the traditional anamnesis of severe punishment, think that any guilty should be prosecuted is a demand of realizing justice and guranting social order, meanwhile, the single function of fighting against crime makes prosecutors have no idea about the value of the system of discretional non-prosecution; Secondly, three-stage approval procedures in application of the system leads to red tapes when make decisions, which not only aggravates the prosecutors'burden, decreasing lawsuit efficiency, but also directly interfers with the choice of discretional non-prosecution, inducing two more simple treatments, namely, returning cases to the public security organs or prosecuting; thirdly, the application of discretional non-prosecution has a strong restraint compared with returning or prosecuting, which increases risks and loads to prosecutors; fourthly, lack of effective substitute measures for public prosecution and relevant setups'cooperations have caused that prosecutors are hard to bring in discretional non-prosecution appropriately; fifthly, to a certain extent, the policy of severe cracking down on criminal activities still has a adverse impact on the application of non-prosecution; lastly, the examination system restricts the application directly. .The third part proposes countermeasures on the problem of"on the shelf"according to the reasons listed above. First of all, by way of converting the punishing idea of where vice is, vengeance follows to the punishing idea of aiming at prevention of crime, establishing prosecutors'objective obligations, guaranting enforcement of discretional non-prosecution fully and properly and realizing justice in substance in individual case farther. In the second place, improve related systems and provide support for the application properly. These mainly consist of four aspects: (1) Take the situations corelate with the crime, the suspect self and the suspect's behaviors after crime as discretional factors; (2) Simplify the decision procedure of application, the prosecutor must submit his report to the chief procurator obtaining approval if he plans to enforce non-prosecution, meanwhile, the chief procurator can order the prosecutor whith written reasons to prosecute when he doesn't agree. If the prosecutor persisted in, the chief procurator can relieve of his office and grante to another; (3)Establishing system of conditional non-prosecution and taking conditions as prosecution's alternative measures, the public security organs should fulfil the obligations of investigation comprehensively and judging the admissibility of evidence concerning the necessity of prosecution. By way of drawing on Japanese Probation,the strength of government and society is integrated and the goal of crime prevention will come true. (4) Reform the examination system, both of the substantive aspect and the procedural aspect of cases should be brought into the system and the implementation of the criminal policy of temper justice with mercy should be too. In the mean time, cancel early warning mechanism of non-prosecution, review the prosecuted cases and non-prosecuted on a reciprocal basis. Seconedly, through reforming the methods of examination and prosecution, restricting power with the right, the parties'litigation rights are protected; furthermore, strengthing internal supervision to prevent evasion of application of non-prosecution with the abuse of procedure of sending cases back to the public security organs. Finally, the correct understanding of the connotation of the criminal policy of temper justice with mercy and the relation with the policy of severe cracking down on criminal activities is a way to implement the former with the carrier of discretional non-prosecution.