Research On Prosecutorial Discretion Power

With market economy system being established in our country, along with the continuous reform , and the complexity of social relation with more changes , the criminal methods have shown various and the case amount also immediately increased, while the public prosecutors meets with new circumstances and new problems both of which continuously flows out now. Under new situation, how to construct a reasonable and effective prosecutorial discretion system has become urgent problem to be solved for our country lawsuit legal system development, and also the discussing focus for the circles of the lawsuit scholars at the same time. Based on native resources, drawing lessons from the foreign advanced theory and their complete systems, through rational analysis on prosecutorial discretion power, this text tries to put forward opinions and suggestions for rebuilding the prosecutorial discretion system of our country.This text is formed by four chapters. In chapter one is the summary of prosecutorial discretion power. With three lessons, this text describes the definition of prosecutorial discretion power, its deference from related definitions, as well as its theory basis. First of all, the definition of prosecutorial discretion power is given out after analysis on criminal actual conditions of our country. Secondly, through the definition attained above, and the necessarily of prosecutorial discretion power, this context draws a conclusion that our country is in need for rebuilding prosecutorial discretion system. Meanwhile, the characters and properties of prosecutorial discretion power are respectively demonstrated.In chapter two is comparative studies on the prosecutorial discretion power abroad. The comparing is mainly concerned England, France, Germen, and two differences are found between two legal systems on their prosecutorial discretion system: first, in Anglo-Saxon legal system, the scope of prosecutorial discretion power is not limited by the property of case; second, Anglo-Saxon legal system gains more independence and more freedom in prosecutorial discretion power than continental legal system.Chapter three makes most of four lessons to demonstrate operating mechanism of prosecutorial discretion power. Firstly, the operating principle including justice principle, economy principle, for independent of justice principle, is concerned. Secondly, the operating way of prosecutorial discretion power fallen into three types: non-prosecution, selective prosecution, sue bargain ; their respective advantages and disadvantages are introduced also. Thirdly, several main ways of realization of prosecutorial discretion is introduced. Finally, about the supervision and restriction mechanism which every country of the world tries to build. Judicial authority, the inside of the procurator organization, court, victim and the public are effective supervision subjects over prosecutorial discretion's legal and rational exercise.Chapter four is about the prosecutorial discretion power's shortcomings in our country. Through analysis on its actual conditions, the prosecutorial discretion power turns out to be flaws in following aspects: simple use way, narrow range; the restricting influence from the traditional legal system; imperfect supervision mechanism. In order to solve these problems, the end of this text puts forward the suggestions: including strengthening the independence of the prosecutorial discretion power, enlarging its use scope, and making perfect the supervision mechanism over it.