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Structural Analysis And System Perfection Of Criminal Private Prosecution

Posted on:2011-10-24Degree:MasterType:Thesis
Country:ChinaCandidate:Y CaoFull Text:PDF
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In judicial practices, many problems exist among privately prosecuted cases submitted to the court and such cases are characterized by: decrease of the quantity, broad range of crimes concerned, simplification of types of cases, occurrence of most cases in grass roots and rural areas report of most cases to the police before prosecution, and low rate of guilty verdict. Problems in prosecution of such cases arise from causes in many ways.The subject initiating the private prosecution is not specified. It is prescribed in the criminal procedure law that any victim shall be entitled to bring private prosecution. Any natural person shall be competent to be a private prosecutor without doubt while it is controversial in theory on legal people and units as private prosecutors. The writer thinks that since rights and interests of legal people and units may become the object directly infringed by criminal acts and some crimes prescribed in the criminal law are intended to protect their rights and interests, they as victims prescribed in the criminal procedure law shall be deemed as undoubted private prosecutors. When a victim is disabled in judicial act, his legal representative or any close relative may bring the prosecution in his behalf and inherit his qualification as a private prosecutor if the victim dies. If the victim and his legal representative or any close relative are hindered from exercising their prosecutive rights, the procuratorate shall be responsible for eliminating such obstruction. If the procuratorate accepts the prosecution, the case shall subject to public prosecution and they shall not be deemed as the subject of this privately prosecuted case.The range of privately prosecuted cases is two large. Cases which shall be handled only upon complaint include insult, slander, forcible interference with others'freedom of marriage, abuse and embezzlement. Nevertheless, in fact, in the event of embezzlement of properties by others, it is impossible for the victim to complete by himself the investigation of the actor on such embezzlement, so cases to be handled upon complaint only shall not apply. Privately prosecuted cases of the second type are not separate ones, but the overlap and combination of both publicly and privately prosecuted ones. The unclear border between public prosecution and private prosecution, the undefined jurisdiction and buck-passing of investigating authorities have caused great damage to rights and interests of victims. According to the criminal procedure law, privately prosecuted cases of this type are almost associated with all crimes in chapter 4 and 5 of specific provisions of criminal law. In practice, however, private prosecutors are not competent. Public prosecution to private prosecution is actually concerned with cases in the form of private prosecution which shall be investigated by the state. Under the circumstance that the procuratorial organization is unable to implement the investigation of the defendant on his criminal liabilities, how shall the private prosecutor complete such a hard task? Therefore, Public prosecution to private prosecution can not be used to achieve the purpose of protecting rights and interests of the victim and supervising state organs.On the basis of above reasons the writer thinks that crimes of embezzlement may be divided into special embezzlement, mandatory administration of embezzlement, and disposal of embezzled property. Cases to be handled upon complaint only may be adjusted to those infringing individual rights and interests, such as slander, forcible interference with others'freedom of marriage, abuse, special embezzlement and illegal invasion into residence. Furthermore, privately prosecuted cases of the second type shall be cancelled while cases converted from public prosecution to private prosecution shall be restricted as those applied for examination by the victim instead of prosecution. To safeguard the exercise of the right of private prosecution, a consummate system of victim-offender mediation and a system of legal aid for private prosecutors shall be presented. Besides.
Keywords/Search Tags:private prosecution, prosecution, people's court, public prosecution to private prosecution
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