On The Construction Of The Deferred Prosecution In China

Deferred Prosecution System is a product as well as a manifestation of prosecution system in the principle of opportunity. It is a kind of settlement by the procuratorial organ after the inspection of a case, which embodies the organ's right of discretion and falls into the category of Public Prosecution System. By nature, Deferred Prosecution is a kind of discretion right that enables the procuratorial organ to defer its prosecution right temporarily, thus serving as a buffer zone between prosecution and non-prosecution. From the angle of suit rights, Deferred Prosecution by the procuratorial organ is a kind of reserved right of action. All over the world, Japan and Germany are among the countries with typical regulations on the Deferred Prosecution System. In China the Criminal Procedure law revised in 1996 only stipulated prosecution and non-prosecution without involving deferred prosecution. So far there is still no explicit regulation of the Deferred Prosecution System in China's legislation. However, in judicial practice, the fact that differed prosecution is applicable to some particular group calls for the improvement of legislation. In the meantime, with the development of the judicial practice and the deepening reform of public prosecution system, as well as the development of the notion of harmonious society, differed prosecution has attracted a lot of attention both from the theoretical circles and practical circles, and thus comes to be a hot issue in the field of criminal procedure law study. Many problems arise: What is the theoretical basis of the Deferred Prosecution System and where does its prosecution value lie? Is it necessary and practical to establish the Deferred Prosecution System in China? If it is, then how should it be constructed in practice? So it is of great significance both in theory and in practice to make a thorough inquiry to the questions such as how to view deferred prosecution properly and whether to introduce the deferred prosecution system into China. Compared with the present public prosecution system, the Deferred Prosecution System possesses a kind of independent prosecution values by making up the difference between prosecution and non-prosecution. It embodies the discretion right of the procuratorial organ and plays an important role in the criminal procedure. Therefore, the present writer considers it necessary to introduce the system into China's criminal lawsuit. In the present essay, by introducing some related regulations of the deferred prosecution system in some other countries and analyzing the theoretical basis and prosecution significance of the system, the writer tries to find out the feasibility of the deferred prosecution system in China. In addition, with regard to the judicial practice in China, the writer proposes an overall construction of the deferred prosecution system with distinctive Chinese features. The essay is divided into the following four parts:The first part is a brief introduction of the deferred prosecution system, including the definition and features of the system and its differences with some related notions. The second part elaborates on the theoretical basis and legal value of the deferred prosecution system.The third part introduces the deferred prosecution system in Germany, Japan and Taiwan Province of China, which can be used for reference for the establishment of the system in China.The last part is the major part with a detailed proposal to construct the Chinese deferred prosecution system. By briefing the attempting application of the system in China's judicial practice and replying to some people's doubts and questions on the system, the writer put forward the specific conception of establishing the deferred prosecution system after analyzing necessity and feasibility of its establishment in China.