Study On The System Of Withdrawal Public Prosecution

The withdrawal of public prosecution is a lawsuit behavior that the prosecutor withdrawal the prosecution according to some reasons, legal procedure after the prosecutor prosecuted. It is an important part of public prosecution power .The core of public prosecution power is prosecuting and penalty crime. This request the prosecutor using the public prosecution power not only have to be positive but also accurate. So the prosecutor ought to withdrawal the prosecution when they find the defendant should not to be prosecuted. This also correctly exercises the public prosecution power request. At the same time, with lawsuit economic theory development and broad practice of opportunifat sprinzip, the prosecutor have more and more discretionary power. The discretionary power of the prosecutor have different performance on different stage: On the prosecution examination stage, the prosecutor can decide some slight crime not to be prosecuted; On the trail stage, the prosecutor can withdrawal public prosecution. So withdrawal public prosecution is an important performance of the prosecutor's discretionary power. Analysis the relative legislations of the world, because different legislation idea and system, the system of withdrawal public prosecution have some difference: Some countries completely permit the prosecutor withdrawal the prosecution, e.g. England and America; Some countries permit with limitation, e.g. Japan and Taiwan district; Some countries prohibit withdrawal public prosecution, e.g. France and Germany.In procedure theory of our country, there have two manners to withdrawal public prosecution: One thinks that withdrawal public prosecution abuses the right of suit; The other thinks the system have deep theoretical foundations and practical necessity .The reasons for t existing this two different manners that the legislation's flaw and he judicial interpretation's fuzzy lead to many question in practice. Which especially prominent is the system degenerates into the method that the prosecutor avoids the judge decides the defendant innocent and"gray zone"of the defendant's right protection. The aim of the system can not realize and lack of its value. But we can not suspect that it is necessary to found the system of withdrawal of public prosecution. We should improve legislation and its value can full display. Some scholars and lawyers give some advice to improve the system, But they don't make systemic research. In this text, the author make deep research on the conception, character, theoretical foundation of the system of withdrawal of public prosecution, and give some advice on the system's development based on comparative analysis the relative legislation of the world. The author hope this advice can do some help to improve the system.