Research On Private Prosecution

Generally speaking, there are two kinds of prosecution in the field of criminal process in modern countries: public prosecution, private prosecution. Public prosecution means that the government has the obligation to seize evidence to deal with people accused of committing a crime. And private prosecution means that the people, who is the victim in a crime, sues to the court straightly for the purpose of accusing someone committing a crime without government prosecutors. In Chinese Criminal Procedure law, which is modified in 1996, there are also some regulations about three kinds of private prosecution. The second kind of private prosecution means that for these minor criminal cases in which the victim has the proof, he has the right to sue to the court straightly. Form the view of the second kind of private prosecution, the author discusses the problems about private prosecution. These problems are as following: one is about the range of private prosecution; the other is about the relationship between public prosecution and private prosecution. As far as the range of the second kind of private prosecution is concerned, there is expanding tendency in our current law. It will produce some problems: first, it is not good for controlling crimes; second, it is hard to restrict the government abusing his authority; third, it is not according with the world trend; last, it will result in conflicts between law paper and the reality. In short, the author thinks we should adjust the range of second kind of private prosecution, if we make clear difference between different prosecution, and consider the ability of the victim seizing evidence.As far as the relationship between public prosecution and private prosecution is concerned in the second private prosecution, the problem is that the criminal procedure law lacks relative regulation, and it causes confusion when the law is enforced. One is that the second private prosecution just permits the victim to sue the court, or also permits the government prosecutor to charge. The other is that when the government prosecutor begins to investigate, the victim has the right to accuse the defendant of committing a crime to the court straightly or not. On the base of analysis of the quality of the second kind of private prosecution, the author thinks private prosecution and public prosecution coexists in the second kind of private prosecution, and the latter has priority. At the same time, we should interfere with private prosecution. After the analysis of the pattern of prosecution, the article discusses the different consequence if we apply different procedure to deal with the case of the second kind of private prosecution—the phenomenon of different punishment to the same crime. In order to resolve this problem, the author suggests that criminal mediation and victim-offender reconciliation should be introduced to criminal trail procedure when the government prosecutor accuses the offender committing a crime.